Folkes, R v [2006] EWCA Crim 287

Case No 2005/5791/A0[2006] EWCA Crim 287
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 19 January 2006
Strand
London, WC2
B E F O R E:
LADY JUSTICE HALLETT
MR JUSTICE NELSON
MR JUSTICE JACK
Between
R E G I N ACrown-v-
Between
ANDRE FOLKES
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 C GILLESPIE appeared for APPLICANT
J U D G M E N T
[1]MR JUSTICE JACK: On 31st August 2005 at the Crown Court at Kingston-upon-Thames, the applicant, Andre Folkes, pleaded guilty to one count of robbery. On 12th October 2005 he was sentenced to life imprisonment pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of two years and 140 days. He now renews his application for leave to appeal against sentence.[2]The facts which lay behind the offence were as follows. At about 1.30pm on 19th July 2005, a Mrs Thavaharan was walking home with her shopping in Morden. She saw the applicant on the other side of the road. He appeared to be walking aimlessly. He approached her and used a number of pretexts to do so, including offering to help carry her shopping. She declined and moved on. He suddenly grabbed her by the throat with one hand. With his other hand he grabbed two gold wedding chains which were around her neck. The chains were substantial and did not break despite considerable force being used. She attempted to call for help but his grip around her throat was so tight that she could not call out. Mrs Thavaharan was pulled to the ground and the applicant continued to try and tear the chains from her neck. The force used was so great that she was pulled several feet along the pavement. Eventually he put his foot against her shoulder and pulled at the chains. This did not break the chains but he was able to pull them over her head. He then ran off with them. Mrs Thavaharan suffered severe abrasions to her neck.[3]On 21st July, two days later, police officers drove Mrs Thavaharan around the area. She saw the applicant and pointed him out. He was arrested. He made no comment in interview. In his possession was a pawnbrokers account card. It was found that he had pawned the two chains on the day of the robbery. The chains were recovered and returned to Mrs Thavaharan.[4]In a victim impact statement Mrs Thavaharan said she had scars on her neck and elbows. She had been in pain for four to five weeks after the robbery. She had difficulty sleeping. She was frightened to be in her house alone, even during the day. Since the attack she had not been out on her own. She had returned to work but only at weekends because her husband could then take her. In consequence she was earning only half of what she had earned previously and her husband had lost his Saturday overtime. She had also lost much of her independence.[5]The motive for the attack on Mrs Thavaharan was to obtain money to buy crack cocaine for which the applicant said that he had had an overpowering craving when he had awoken that morning.[6]In passing sentence the judge held that among other matters there was a risk of serious harm being occasioned in the future by the applicant. He concluded that the appropriate sentence was life imprisonment passed pursuant to section 225(2), as we have said. He stated that the determinate sentence, giving credit for the guilty plea, would have been one of five years' imprisonment and so the minimum period to be served, taking account of the period on remand, was two years and 140 days.[7]The applicant was born on 24th December 1975 and so is now 30 years old. He has a number of previous convictions having been dealt with by the courts on 12 previous occasions. On 14th December 1992 he received a conditional discharge for assault occasioning actual bodily harm. On 29th September 1998 he was fined for possessing a bladed instrument. On 12th February 1999 he was sentenced to 12 months' imprisonment for affray. There followed a number of appearances for theft and driving whilst disqualified. On 28th June 2002 he was sentenced to four years' imprisonment for robbery and attempted robbery. Those offences were very similar to that giving rise to this appeal. The robbery occurred on 28th March 2002. He again approached a lone woman and started to follow her. He asked for some change and was told by her that she did not have any. He then grabbed her handbag and dragged her across the street and threw her against a wall. The attempted robbery occurred later on the same day. He again approached a lone female, asked her for money and attempted to grab her handbag. A violent struggle broke out and the victim was dragged along the road. A shout from a passer-by prevented the applicant from taking anything from the victim on that occasion. The motive for these offences was again to obtain money in order to purchase drugs. At that time the applicant was on leave as an informal patient at Springfield Hospital in Tooting.[8]There was a pre-sentence report before the judge but the more important report was that of Dr Barbara Pierce, a specialist in adult psychiatry approved under section 12 of the Mental Health Act 1983. Under the heading of "background information" her report stated in respect of the appellant that:
"He is unemployed and has consistently failed to engage in structured occupational or educational activities. He has a diagnosis of severe and enduring mental illness, that being Schizoaffective Disorder. His illness has been exacerbated by illicit substance misuse, principally crack cocaine."
The report went on to refer to the prevalence of mental illness in the applicant's family. He himself had first been admitted to hospital in 1996. The report went through his previous psychiatric history in some detail, describing the applicant's varying mental states and the effect of his medication and of his failure on occasions to take it, also of his addiction to drugs. The report recounted how on 29th June 2001 a Mental Health Act assessment had been completed at Wimbledon Police Station. The applicant had burst into the flat of a neighbour who was not known to him and had claimed that she was pregnant with his child and had given him a disease. He had brandished a knife and threatened to kill her and her daughter. He was suffering from paranoid delusions. It took, the report stated, several weeks for his mood to settle when he was remanded in custody and treated with chloropromazine.[9]Prior to the robbery on 19th July 2005 the applicant had been seen by Dr Pierce on 6th July. He was well presented with no psychotic symptoms, although irritable and dismissive. He said that the medication he had been prescribed made him feel drowsy and demotivated and he was reluctant to continue with it. When seen in prison on 2nd August 2005, that is following the robbery:
"Mr Folkes appeared elated, irritable and labile mood. His manner was over-familiar and his behaviour was disinhibited. He was preoccupied with religious events, believing there is a holy war and that he can influence this by praying. He threatened to kill all 'white people' following a racist attack in Liverpool that he had read about in the newspapers. He threatened to kill the four men that he believed raped his girlfriend, claiming to know who they were and how to find them. He threatened to kill anyone in prison who tried to impose boundaries on him and to kill his current cellmate whom he accused of smoking heroin."
Under the heading of "psychiatric opinion", Dr Pierce stated:
"1.1 Mr Folkes has a severe and enduring mental illness that is best classified as a Schizoaffective Disorder. This is a disorder in which both affective (mood) and schizophrenic symptoms are prominent within the same episode of illness. 1.2 This is true of Mr Folkes, as during episodes of acute illness, there is evidence both psychotic symptoms and a marked mood change. 1.3 The psychotic symptoms are typically that of delusional beliefs of a paranoid nature, beliefs that his thoughts are being interfered with and broadcast to others, and the description of auditory and visual hallucinations. 1.4 The mood changes may be of mania (elation, over-activity, impulsivity, disinhibition and grandiose ideas) or of depression (feeling sad, tearful, hopeless and at times suicidal). Both mood states are associated with insomnia and reduced appetite."
Dr Pierce said that under his current medication his mood was stable with no evidence of psychosis. She stated that the relationship between substance misuse and mental illness was complex and there was a high co-morbidity in the applicant's case. His illness was exacerbated by his use of drugs, namely cannabis and crack cocaine, as to which he had only some insight. He saw that it led him to offend and not that it exacerbated his psychotic features. She said:
"It has proved difficult to properly supervise Mr Folkes from a psychiatric or social perspective when he is in the community as he recurrently disengages from services and treatment. It would seem that his mental state can rapidly deteriorate when he defaults from treatment. This is compounded by his illicit substance misuse, for which he shows little consistent motivation to discontinue. During episodes of acute illness when his mental state has been severely disordered, Mr Folkes has presented a serious risk to others. He is known to have carried knives in the past. The co-occurrence of substance misuse further increases his dangerousness to others."
She also stated:
"At the time of the index offence, Mr Folkes was taking antipsychotic medication under supervision and his mental illness was in remission. Although he had used crack cocaine the night before the incident, it would appear that his mental state was not adversely affected by the use of this drug at the time of the offence."
We would comment that it cannot be known whether in fact the applicant was taking his medication in the period in which the offence was committed.[10]Dr Pierce concluded that although the applicant suffered from a severe mental illness, Schizoaffective Disorder, he did not presently suffer to a degree or nature that made it necessary for him to be detained in hospital for medical treatment.[11]The report can perhaps be summarised in this way. The applicant has a long history of mental illness. His illness can largely be controlled by medication. He is addicted to drugs which exacerbate his condition. When he is in the community he cannot be relied upon to take his medication. When his illness is acute and his mental state severely disordered he presents a serious risk to others.[12]We turn to consider the application of section 225 of the Criminal Justice Act 2003. For the section to apply the offence must be a serious one as defined by section 224(2). Robbery is a specified offence for the purposes of that section and is punishable with imprisonment for life. It is thus a "serious offence". Secondly, the court must be of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. In considering that question the court must apply section 229. Section 229(3) applies because the applicant has been convicted of one or more relevant offences when he committed the robbery on 19th July 2005. The subsection requires the court then to assume that there is such a risk unless it would be unreasonable to do so. Given the matters which we have set out, there can be no doubt that there is a significant risk of harm to members of the public occasioned by the commission by the applicant of further specified offences. For there is a significant risk of further robberies committed in order to obtain money for drugs.[13]The submission that has been made to us by Mr Christopher Gillespie on behalf of the applicant is whether there is shown to be a risk of "serious harm". Serious harm is defined by section 224(3) as "meaning death or serious personal injury whether physical or psychological". Although Mrs Thavaharan sustained an ugly and substantial abrasion to her neck, of which we have seen photographs, that cannot be described as a serious injury. We do not have information as to the psychological effect of the incident upon her. We have referred to how it has inhibited her life. It does not appear that the victims of the robbery and attempted robbery, for which he was sentenced on 28th June 2002, suffered any serious injury - at least that is not referred to in the limited papers which we have seen. It has to be stated, however, that if any person applies considerable force in the manner in which the applicant applied force on those three occasions in order to take a chain or a handbag or anything else of value which the victim has, there is a very real risk that the victim will be seriously injured. For example, the victim's head may be bashed against the pavement or the chain, in Mrs Thavaharan's case, might have become caught on one of her features rather than slipped off over her head when the applicant put his foot on her shoulder and pulled. The court must also here take into account the further information about the applicant which is contained in Dr Pierce's report and to which we have referred. We conclude that there is a risk of serious harm to the public from the applicant in the future and that it is significant. The assumption contained in section 229(3) is not rebutted.[14]We conclude that the judge was correct to consider that section 225 applied. Section 225(2) which provides for a sentence of imprisonment for life when the offence carries a maximum sentence of life, applies where "the court considers that the seriousness of the offence or of the offence and one or more offences associated with it is such as to justify the imposition of a sentence of imprisonment for life". Mr Gillespie submitted that that was not so in this case. The judge did not refer to this aspect in his sentencing remarks or to the alternative provided by section 225(3) - a sentence of imprisonment for public protection. We have not been addressed at any length on the effect of section 225(2)(b). Our tentative view is that it requires that the previously established criteria for a life sentence must be met where a life sentence is imposed under this section. That is also the view suggested in paragraph 8 of Lang and others [2005] EWCA Crim. 2864. One of those criteria is that the offence itself must be one which would call for a severe sentence. The cases as to that are considered in Archbold 2006 at paragraphs 5-303 and 5-304. To quote from one of the authorities cited there, Chapman [2000] 1 Cr.App.R 77 at 85:
"... a sentence of life imprisonment is now the most severe sentence that the Court can impose, and it is not in our judgment one which should ever be imposed unless the circumstances are such as to call for a severe sentence based on the offence which the offender has committed."
[15]We have set out the facts relating to the offence in this case. We do not consider that in the context of a possible life sentence this offence by itself did call for what is referred to as a severe sentence. We therefore conclude that section 225(2)(b) is not satisfied. We therefore conclude that for that purpose the seriousness of the robbery of Mrs Thavaharan would not justify the imposition of a life sentence. The correct sentence in these circumstances was one of imprisonment for public protection under section 225(3). The difference is slight. We refer to paragraph 8 of the decision in Lang.[16]Mr Gillespie did not seek to reduce the minimum term set by the judge. He was right not to do so. We therefore grant leave, limited to the question whether a sentence of imprisonment for life was appropriate or a sentence of imprisonment for public protection. The sentence of imprisonment for life will be set aside and a sentence of imprisonment for public protection under section 225(3) will be substituted. The appeal is allowed accordingly.[17]MR GILLESPIE: My Lady, I am grateful. May I ask for a representation order in those circumstances?

LADY JUSTICE HALLETT: Of course, Mr Gillespie. Thank you for your assistance. As you know in normal circumstances on applications of this kind one would allow the appellant (as he now is) seven days if he wished to make further submissions, but as we granted the limited leave my Lord has said there can be no purpose in his attempting to make further submissions.

[19]MR GILLESPIE: No, my Lady.