B, R v [2005] EWCA Crim 3572

Case No 200504920/A2[2005] EWCA Crim 3572
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 14th December 2005
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE CRANE
MR JUSTICE OPENSHAW
Between
R E G I N ACrown-v-
Between
S. B.
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)
MISS K BRUNNER appeared for APPELLANTMR R COLE appeared for CROWN
J U D G M E N T
[1]MR JUSTICE CRANE: This appellant appeals against sentence by leave of the Single Judge. She pleaded guilty at the Bristol Magistrates' Court on 18th May 2005 and was committed for sentence to the Crown Court. On 26th August 2005 she was sentenced by Miss Recorder Munro QC to 2 years' imprisonment on each count concurrent for six counts of theft, with 46 offences of theft taken into consideration.[2]She had been employed as an assistant in a branch of the Post Office. Over a 12-month period, between October 2003 and October 2004, she stole the very large sum of £221,000 from the Post Office. The thefts came from two different sources. The first source involved her theft of three money pouches containing a total of £60,000 between them in April and May 2004. She simply removed those money pouches. The second source of theft was the fraudulent use of cash orders through her till. Over the 12-month period she took pension books which arrived from customers and cashed the pension vouchers as they became due and kept the money. She obtained a average of £3,000 per week, encashing a total of 1,400 pension foils. The thefts were tracked to her because the cash slips bore her personalised stamp.[3]The offences came to light in October 2004. On 28th October she was arrested. When interviewed she declined to comment and at that stage gave a statement suggesting somebody else might have been responsible. In the event, it she pleaded guilty.[4]She is now 54 and was of good character. The pre-sentence report did not suggest any form of community order. Of more significance was the psychiatric report from Dr Alan Lilywhite, consultant forensic psychiatrist. He said:
"M.B. describes symptoms suggestive of battered wife syndrome which is a type of post traumatic stress disorder. This was in relation to her relationship with her husband, who for 25 years physically and sexually abused her. She told me that he had pushed her through a window, held a knife to her throat and denigrated her sexually for the majority of their marriage. He insisted that she wore provocative clothing and had photographed has in sexually explicit poses. He then watched those films with friends."
She told the forensic psychiatric that her husband had hit her, but he was careful where he hit her and usually hit her on the body or on her legs so that the bruises would not show.[5]Dr Lilywhite recorded symptoms described to him as flashbacks. She had given before he reached that diagnosis more detail of the behaviour of the husband, in particular he had invited friends, who would have sexual familiarities with her, and on one occasion, she said, one of them had raped her. These incidents became more frequent and over the last 3 to 4 years had occurred once a week.[6]Dr Lilywhite expressed the view, based on her account to him, that her husband had chipped away at her over the years and gradually destroyed her self-esteem. He described her as very nervous, particularly when she heard men shouting and the noise of drunken men caused a startled response. There was another incident at the post office where she had been threatened. In connection with that it seemed that the symptoms noted by the general practitioner may well have in fact been related to the relationship with the husband. She had made a suicide attempt in January 2005 which, after hearing her describe it, Dr Lilywhite regarded as a very serious and well-planned attempt at suicide. His opinion was that due to the appellant's life experiences and her use of distraction to cope with these experiences, she might find that when in prison her flashbacks and nightmares increased.[7]As to the offences, the account given to Dr Lilywhite by the appellant was this. The husband proposed to her that she either started to steal from the post office or she would have to start to walk the streets and become a prostitute. She told Dr Lilywhite that she had discussed with him previously how lax the systems were in the post office and how easy it would be to steal. She described how her husband became increasingly aggressive and would go into a rage if she did not steal enough. Dr Lilywhite expressed the view that at no point during the interview did the appellant minimise her involvement in the theft, or ask for sympathy with regard to her position.[8]Those conclusions were before the learned Recorder. By that time the husband had disappeared. We are told by counsel on the appellant's behalf that although, as was the fact, some of the money had been used to buy caravans in joint names, that was effectively the only use that the appellant made of money, apart from essential expenditure such as mortgage payments after the husband had left. Most of the money went to the husband. Quite plainly, the use of the money for joint purposes might tend to undermine the views of the psychiatrist. The appellant wrote a letter to the court expressing her regret.[9]In his sentencing remarks, the learned Recorder pointed out that this was a gross breach of trust and it is because the offences were so simple to commit that the breach of trust was greater. She accepted that the money was principally spent under the instruction of the appellant's husband on caravans and such matters. She went on:
"...I accept you were living with a very difficult man -- you were a free agent in this to a large extent. You had an opportunity on any day to say 'no' or go to somebody for help. I appreciate you felt you had no one to turn to at home, but I am sure that with hindsight you would do things differently."
She described the background of "a very unhappy home relationship".[10]Nevertheless the learned Recorder specifically said that she accepted everything that she had read about the appellant in the psychiatric report. Plainly any sentencer had to decide whether the matters in the court were to be accepted or not. But once they were accepted, we take the view that the description of those matters by the learned Recorder did less than justice to the extremely serious position revealed by the forensic psychiatrist.[11]The question before us today is whether, accepting the contents of that report, such a background and the element of coercion in the commission of the offences can amount to exceptional circumstances. The learned Recorder, although saying that the appellant was less responsible than some others in her position, did not accept that there were exceptional circumstances and suggested to the appellant that prison would not be nearly as bad as she thought it was going to be.[12]In our view, once the contents of the forensic psychiatrist report were accepted, the combination of physical, emotional and sexual abuse had reduced the appellant to a condition where it was difficult to resist the coercion of her husband. It is clear from cases cited to us that that the kind of background which occurred here can amount to exceptional circumstances. Of the two cases cited to us, we mention R v Kondal [1995] 16 Cr App R(S) 845 and of R v Batt [1999] 2 Cr App R(S) 223. Each case plainly turns on its own facts and there is no definition of what can be exceptional circumstances. But we are satisfied that in the light of the forensic psychiatrist report, exceptional circumstances did exist here.[13]For those reasons we take the view that this sentence can be and now should be suspended. It should be suspended for 2 years. We therefore quash the sentence, and we substitute the same sentence suspended for 2 years.