R, R v [2005] EWCA Crim 392

Case No 2004/04867/A7[2005] EWCA Crim 392
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 18 February 2005
The Strand
London
WC2A 2LL
B e f o r e:
LADY JUSTICE SMITH
MR JUSTICE BUTTERFIELD
and
MR JUSTICE GRIGSON
Between
R E G I N ACrown- v -
Between
S. D. R.
Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
MISS G MILSOM appeared for APPELLANT
J U D G M E N TFriday, 18 February 2005
[1]On 22 July 2004, at the Crown Court at Inner London, S.R. was sentenced to life imprisonment for one offence of rape and a separate offence of attempted kidnapping, to both of which offences he had pleaded guilty at an earlier hearing. The sentencing judge, His Honour Judge Stone QC, ordered that he should serve a minimum of seven years' imprisonment before consideration was given to his release on parole. He now appeals against that sentence by leave of the single judge.[2]The only issue arising on this appeal is whether the judge was wrong to impose a sentence of life imprisonment instead of imposing upon the appellant a Hospital Order under section 37 of the Mental Health Act, with a restriction without limit of time under section 41. Miss Milsom, who appears for the appellant, as she did in the court below, accepts that if this court considers that it was not appropriate to make a Hospital Order then the sentence of life imprisonment and the recommended period of detention before consideration is given to parole are both wholly appropriate.[3]The appellant is now 30 years of age. He has a formidable criminal history. He began to offend when he was 15 and since then has amassed a total of 17 convictions for offences of violence, dishonesty and possession of drugs. In particular he has five separate convictions for robbery or attempted robbery, in respect of the last of which he was sentenced to a total of five years' imprisonment. He has also been convicted of a number of offences relating to his failure to comply with bail, community orders and licence conditions.[4]The appellant was first admitted to a psychiatric hospital in December 2001. His mental state was assessed as not floridly abnormal. He was prescribed anti-psychotic medication and on discharge in January 2002 diagnosed as suffering from "an insidiously evolving paranoid psychosis possibly exacerbated by heavy cannabis use, although there were elements suggestive of mania".[5]The appellant was re-admitted to hospital in 2002, having been observed prior to admission exposing himself. He was diagnosed as suffering from schizophrenia on this occasion, but discharged in July 2002. He was re-admitted again in March 2003, reporting that he felt paranoid and that people were going to kill him. He had not been taking his prescribed medication and quickly responded to that medication once in hospital. He was discharged on 16 May 2003.[6]The appellant committed the rape in the early hours of the morning of 22 July 2003, about ten weeks later. His victim was a 19 year old girl, a visitor to this country, who was waiting at a bus stop at about 1am. She was a total stranger to the appellant. He went up to her, told her he had a knife, grabbed the scarf she was wearing and twisted it tightly around her neck so that she could not breath. He then punched her to the face and knocked her to the ground, where he punched her again. He dragged her by the scarf around her neck to behind some bushes, pulled down her trousers and underwear and raped her. Having done so, he picked up his victim's handbag and, despite her pleas not to take her personal possessions, he did just that, making off with the bag and its contents.[7]The police were alerted and the victim was medically examined. She had extensive bruising and swelling to her neck, shoulder and ear. She suffered considerable pain in the course of the rape, the experience of violent sex against her will, and severe psychological trauma inevitably following such an attack.[8]The attempted kidnap was committed about 16 hours later on the afternoon of the same day. The appellant's victim this time was a 14 year old girl -- again, as with his rape victim, a complete stranger to him. He followed her to her home for some considerable distance, both on foot and by train. The girl tried to shake the appellant off, but to her increasing fear he persisted in following her despite her efforts. As she reached her home, the appellant still nearby, she took out her keys. At that point the appellant demanded her keys from her. She refused to hand them over and asked for help from a woman nearby. When the woman confronted the appellant and demanded to know what was going on, he pretended that he was going to take the girl to her mother's. The woman told the appellant to leave the girl alone, but his response was to grab hold of the girl by her arm and try forcibly to drag her off. The woman to whom the girl had turned for help tried to hold on to the girl. A tug of war developed, with the girl shouting and crying in her understandable, considerable distress and fear. Another passer-by joined in. With the girl herself resisting as hard as she could, eventually the appellant gave up and made off. A man in the vicinity, who had seen what was happening and telephoned the police, followed the appellant in his van as he left the scene, thereby enabling the police to arrest him nearby.[9]The mounting fear and distress which the young girl experienced requires no further elaboration from this court.[10]After his arrest the appellant was seen and assessed by the doctor who had been responsible for his treatment when he had been admitted to hospital on earlier occasions. That doctor could find no evidence of psychotic symptoms, merely noting that the appellant was irritable.[11]In interview the appellant made no comment to all questions asked on him.[12]On admission to prison on remand, the appellant was noted to be stable and compliant with his medication. No overt psychotic symptoms were apparent. However, over the following months his condition appeared to deteriorate. He was eventually transferred to the Shaftesbury Clinic at Springfield University Hospital in South West London, where he remained until sentence.[13]The sentencing judge concluded that in his attempt to kidnap the 14 year old girl the appellant intended serious harm to her, and that in consequence other young females could be similarly at risk from him. The judge found that the appellant posed a serious danger to the public, and particularly to women -- a serious danger which was likely to continue for a long time. In the light of that conclusion, which Miss Milsom accepts, as did the doctors, was entirely appropriate, the choice facing the sentencing judge was one of life imprisonment or a Hospital Order without limit of time.[14]To resolve that issue the judge heard evidence from two consultant psychiatrists, Dr Browne for the prosecution, a retired psychiatrist with 30 years experience as a consultant, who examined the appellant on two occasions; and Dr Sarkar, an experienced psychiatrist who had been a consultant for about one year and who had had the day-to-day charge of the appellant since his admission to the Shaftesbury Clinic.[15]Consequent upon the order of the single judge this court has had the advantage of reading the transcripts of the evidence that each consultant psychiatrist gave before the sentencing judge. In the opinion of Dr Sarkar the appellant suffered from paranoid schizophrenia. He had seen no symptoms when examining the appellant, but he relied on nursing staff who informed him that the appellant had shown such symptoms on other days. Dr Sarkar considered that the appellant fell into that category of schizophrenics who were well between psychotic episodes, but he accepted that detecting faking by patients was not an easy area. He further agreed that cannabis use may have been a significant factor in the appellant's case. Dr Sarkar recommended a Hospital Order, but accepted that drug therapy would be the main component of any treatment, and that such treatment would be equally available to him in prison. In his oral evidence Dr Sarkar urged the merits of a Hospital Order, principally on the basis that a restriction order would enable supervision of the appellant in the community on release, which he envisaged taking place between three and eight years from the date of sentence. Dr Sarkar did not appear to have a great understanding of the role of the Parole Board and licence conditions imposed when life sentence prisoners are released.[16]In contrast, Dr Browne did not consider that a Hospital Order was appropriate. He pointed out that on previous admissions to hospital the appellant had made a rapid recovery from his symptoms. Further, when Dr Browne saw the appellant in prison he appeared to have total gross amnesia; he could remember nothing about anything. Dr Browne considered that such a condition was a very unusual presentation, not consistent with schizophrenia and much more consistent with offenders who wish to avoid punishment for what they have done and deceive their doctors. Put another way, Dr Browne thought that the appellant was faking. Dr Browne found that the appellant was not psychotic and thought that such behaviour as could properly be described as unusual or odd was likely to be attributable to his abuse of cannabis.[17]The sentencing judge heard the evidence from both doctors over a period of about two hours. He plainly gave their evidence very careful consideration. Having done so, he concluded:
"Having heard the evidence of the doctors, I share Dr Browne's concerns about your case and I find that his opinion more closely accords with the available evidence about you. I prefer his opinion. The evidence I have heard, therefore, does not satisfy me that your mental disorder is of a nature or degree which makes it appropriate for you to be detained in a hospital, the test required by section 37(a)(i) of the Mental Health Act. Further, I am not of the opinion that a hospital order is the most suitable method of disposing of your case, the test required by section 37(b) of the Mental Health Act."
[18]Miss Milsom seeks to rely on R v Howell 7 Cr App R(S) 360, in which this court held that, where medical opinions are unanimous and a bed is available in a secure hospital, a Hospital Order should be made. However, as the sentencing judge pointed out, this case is very different. The doctors were not unanimous. It was therefore a matter for the judge to resolve in the light of the evidence he heard and all the circumstances of the case.[19]Miss Milsom submits that the judge was wrong to prefer the evidence of Dr Browne, in particular because he had not seen the appellant since April 2004. She makes other criticisms of his evidence, which we have also considered with care.[20]This court would pay tribute to the careful and scrupulously fair way in which the sentencing judge approached this important and difficult issue. He had the benefit of seeing both doctors give evidence over a substantial period. In our judgment there is nothing within the transcripts or the sentencing remarks which gives us the slightest reason to dissent from the conclusions which he reached.[21]We have little, if any, information on the appellant's progress in custody over the past seven months, but observe that if there had been any significant deterioration of his condition requiring hospital treatment, there is power to transfer him as a convicted prisoner to a psychiatric hospital for receipt of such treatment as the doctors may advise. Such a transfer can be achieved, as the evidence before the sentencing judge shows, within a matter of hours if there is any urgency about the situation. Indeed, in the event, a few days before the hearing of this appeal the appellant was transferred back to the Shaftesbury Clinic under section 48 of the Mental Health Act 1983, presumably because of an episode requiring treatment in a psychiatric hospital. No doubt when he has recovered sufficiently, which in the light of his previous history is not likely to take very long, he will be returned to prison.[22]In the circumstances we are quite satisfied that the judge was correct in the conclusions he reached and the order he made. Accordingly, this appeal is dismissed.