Bulmer, R. v [2005] EWCA Crim 3516

Case No 200505201/A9[2005] EWCA Crim 3516
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 7th November 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE AULD
MR JUSTICE HOLMAN
Between
R E G I N ACrown-v-
Between
KAREN ANN BULMER
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR JOHNSON appeared for APPELLANT
J U D G M E N T

LORD JUSTICE AULD:

[1]The appellant, a 37 year old incurable alcoholic, with a long string of drink related convictions behind her, appeared on 12th September 2000 in the Crown Court at York for sentence on her admissions to two breaches of an Anti-Social Behaviour Order. She had breached that order and other such orders many times before. By the time she appeared for sentence before the judge, His Honour Judge Hoffman, at York, she had been in custody for some four months, having been committed there for sentence in respect of the two breaches in May of this year. The judge on this occasion sentenced her to 21 months' imprisonment in respect of each breach, the sentence to be served concurrently.[2]She appeals against those sentences by leave of the single judge.[3]The facts of the breaches were as follows. On 9th December 2004 the appellant was made subject to an Anti-Social Behaviour Order for a period of two years. One of the conditions of that order was that she should not use threatening, abusive or insulting words or disorderly behaviour in public. She breached the order on a number of occasions. On 29th April of this year she was imprisoned for 28 days for one such breach.[4]She was released from that sentence on 12th May of this year. Within three days of her release, on 15th May, a constable of the York Minster police saw her drinking from a can of beer in the Minster grounds. He told her to leave, or to stop drinking. She replied, "Fuck off". He asked her again to leave, but again she refused. Other police officers were called and she was arrested. On arrest she appeared to be under the influence of drink. She had with her a bag full of unopened cans of strong lager. That was the first of the two breaches of the Anti-Social Behaviour Order that she admitted before the magistrates.[5]The second occurred only days later again. This time, on 18th May at about 11.50 p.m., just before midnight, some paramedics were called to Church Street in York where they found the appellant lying on the road. She had a carrier bag of beer cans with her. They helped her up from the road. She told them as they did so that she wanted to go to jail because someone called John was after her. That was a reference to the fact that she was to be a witness in a murder trial which was to take place in October of this year, and she was in fear for her safety as a result of it being known that she was to be a witness in that trial, and a critical one too.[6]Just after midnight on that night the paramedics were called back again to Church Street in York. They found the appellant in the same position, lying in the road and refusing to move. They moved her to a bench at the side of the road and left her. About ten minutes later they were called back again to find her yet again in the road, lying down, and asking them to call the police. She became abusive, and told one of the paramedics to "fuck off". She then threw an empty beer can at him. By this time the paramedics felt they could do nothing but call the police. They did so. The police arrived and duly arrested the appellant. That constituted the second breach of the Anti-Social Behaviour Order.[7]The appellant's antecedents were, as we have indicated, considerable. She had 115 previous court appearances for 166 offences between late 1995 and April 2005, nearly all of them drink related. They included being drunk and disorderly, attempted theft, threatening behaviour, obstructing a constable, drunk in a public place, criminal damage, common assault, breach of probation orders, assault on a constable, interrupting court proceedings, drunk on a highway, theft, failing to surrender to custody and so on, all with a drink base to them.[8]In a pre-sentence report that had been prepared for the court the author gave an account of the appellant explaining that she had been drunk at the time of the breaches and could remember very little of them. She said she had an extensive list of previous convictions and acknowledged that they, too, had on occasion caused her to breach Anti-Social Behaviour Orders. She rightly attributed all her offending to alcohol and seemed to be aware that if she could get off alcohol she would free herself from this train of offences.[9]There was also a psychiatric report before the court which revealed a hopeless position. She had been a heavy drinker for 14 years. During that period the only times of detoxification that she had undergone coincided with short periods of imprisonment that had been imposed upon her. The psychiatrist diagnosed her as a severe chronic alcoholic and one of limited intelligence. He said that she required long term community rehabilitation to enable her to remain abstinent from alcohol, but he was pessimistic about finding a suitable programme for her, or that, if found, that she would co-operate with it.[10]It is perhaps worth reading one or two passages from the concluding parts of the psychiatrist's report. After describing her as extremely severe chronic alcoholic and a lady of limited intelligence, he says that her position as a chronic alcoholic has been a hopeless one for many years. The problem, he says, is not detoxifying her, as has been repeatedly done quite successfully when in prison, but longer term community rehabilitation to enable her to remain abstinent from alcohol after she has dried out.[11]It was with that dilemma that the judge was presented when deciding the appropriate sentences to be imposed for these comparatively trivial breaches; a dilemma between proportionality in how to respond to them through whatever tools the court had available and the need, also, to protect the public, given the hopelessness of her state and her apparent inability to cope without alcohol when outside prison.[12]The judge put it in this way in the sentencing remarks, referring to the mitigation put before him by her then counsel, Miss Henry:
"I bear in mind Miss Hendry's argument that the sentence should have some regard, should have some proportion to the nature of the offences which constitute the breach. That is an, it is not the only argument. As I say, ultimately I have to try and protect the public from you. Doing the best I can in difficult circumstances, I am going to impose a sentence of 21 months, hoping that the prison will not take the view that the time served is enough for you to be released. I think you should spend more time in prison, perhaps to stiffen your resolve, but at the very least to protect the public from further activities of this nature."
[13]Mr Johnson, in concise and well pitched submissions on behalf of Miss Bulmer, has submitted that the overall sentence of 21 months is manifestly excessive and out of all proportion to the culpability represented by these two breaches of the Anti-Social Behaviour Order. As he points out, it suggests a starting point, before the plea of guilty and other mitigating circumstances are taken into account, of something in excess of two and a half years' imprisonment. He prays in aid the guilty plea, he prays in aid the fact that her anti-social behaviour, exhibited by these breaches, although a nuisance, was not of the worst, and, perhaps most of all, he prays in aid the pitiful condition of this appellant as a long term and seemingly incurable alcohol addict.[14]As a coder to the submissions, he has referred the Court to the fact that, aided by the detoxification, to which she was subject while in custody, she was able and brave enough to give evidence in the murder trial, to which we have referred earlier on, to good effect, critical evidence as it turned out, with the result that those guilty of murder were convicted. That is a good illustration of what she can do if she keeps off drink. Sadly, Mr Johnson was not in a position, because of his late instructions, to tell us what, if anything, has been attempted while she has been in custody, now for six months, the equivalent of a 12 month sentence thus far, to provide for some long term solution to this seemingly intractable problem of her controlling herself once out of the confines of custody.[15]We can only approach the matter as the judge was minded to do, to bear in mind the need for protection of the public from this constant disorderly conduct and to try and keep the sentence in proportion to the culpability of her conduct.[16]It is in that latter respect where we believe that the judge went wrong in the difficult decision that he had to make. It may be that he believed that if this woman could be kept in custody for that little bit longer, the better might be the chances for her to maintain her improvement when finally released from prison. However laudable that intention may have been, we fear that he went beyond the bounds of proportionality, as Mr Johnson has submitted, in imposing a sentence of 21 months for these two breaches.[17]We take the view, again facing the same dilemma as the judge, that an appropriate disposition, and a proportionate one in the circumstances, would have one of 12 months' imprisonment in respect of each breach, those sentences to be served concurrently. To that extent the appeal against sentence is allowed.