Cook, R. v [2006] EWCA Crim 780

Case No 2005/6202/A9[2006] EWCA Crim 780
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 21 March 2006
Strand
London, WC2
B E F O R E:
LADY JUSTICE SMITH
MR JUSTICE CALVERT-SMITH
Venue THE RECORDER OF BRISTOL
Between
R E G I N ACrown-v-
Between
GARY COOK
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 L POWER appeared for APPELLANT
J U D G M E N T
[1]MR JUSTICE CALVERT-SMITH: This appellant is now 21. On 14th June 2005 he pleaded guilty at the Magistrates Court to two offences arising out of the same act. The first was the communication of false information to a 999 operator with the intention of inducing a belief that a bomb was about to explode at Canary Wharf, under section 51 of the Criminal Law Act 1977, and the second of wasting police time.[2]On 28th October 2005 at the Southwark Crown Court he was sentenced to three years' imprisonment on the first charge. No separate penalty was imposed on the second. This appeal is brought with the leave of the single judge.[3]The facts were these. On 2nd April 2005, a few days before his 21st birthday, the appellant telephoned 999 and said:
"I want to tell everyone I'm a Saddam follower and I'm going to blow up Canary Wharf. I've 'phoned to tell you as I'm there now."
The police attended the scene of Canary Wharf to begin a search and enquiries were set in train to trace the call. These enquiries led to the appellant whose mobile telephone had been used to make the call. When seen by the police he said that he had lent his phone to a friend, Ali, whom he described, and said that Ali had made the call while the appellant had been in the bathroom at home and that Ali had gone to Canary Wharf in his truck. The defendant was bailed pending further enquiries.[4]On 2nd June he returned to the police station and was charged. After charge he asked to be re-interviewed. He then admitted making the call and said that he had been upset at the time although he could not now remember why. He first claimed that Ali had been at the house at the time he made the call and then claimed that Ali was in fact dead and that he communicated with him through Jesus Christ.[5]That morning, before making this call, he had committed an offence of theft at a farm at which he worked. In addition to that theft, for which he was dealt with separately, he has an extensive criminal record. Since 2003 he has been convicted of possession of an offensive weapon, assault occasioning actual bodily harm, burglary, theft and public order offences. The record also reveals a tendency to commit offences whilst on bail and a consistent failure to comply with non-custodial sentences. Such failures had culminated, in November 2004, in a two month sentence in a young offender institution.[6]A week after pleading guilty to these charges at the Magistrates Court, he presented himself at the Royal London Hospital claiming that he was hearing voices and was admitted as a voluntary patient. There he was seen by a psychiatrist. That admission no doubt caused his failure to meet the probation officer connected with the preparation of the pre-sentence report and the preparation of such a report was put off.[7]By the time of the eventual sentence on 28th October, although the position was far from clear and, although extremely helpful this morning, Miss Power has been unable fully to describe what happened, he had clearly spent further periods on bail with conditions, or in hospital where he was examined by psychiatrists, or on remand in custody at Pentonville.[8]The court had before it two psychiatric reports and we have a third which, for reasons which are hard to follow, was not put before the sentencing judge. The report which is before us, but does not appear to have been before the sentencing judge, describes the appellant as a man with a borderline IQ, with a current diagnosis of anti-social personality disorder. He has had a number of short-lived brief psychotic episodes where he experiences only auditory hallucinations and continues:
"He poses a risk to himself and to others due to his immature and impulsive personality and offending behaviour."
A second report, which was before the court, dated 24th October 2005 from Dr Llewellyn-Jones, describes him as suffering from a personality disorder with borderline and dissocial features. Having described various matters from his past, she repeats a diagnosis of dissocial personality disorder:
"This is my preferred diagnosis for him, rather than paranoid schizophrenia. I did not judge Mr Cook to have a mental illness as recognised under the Mental Health Act. I would add that I would not judge Mr Cook's symptoms to be of a nature or degree to warrant detainability under the Mental Health Act. I cannot, therefore, recommend a hospital order for him for disposal."
In particular she stated:
"I cannot see that he is really suitable for a community rehabilitation order, as I would not judge the index offence to be related to his mental state, but instead is part of his other grandiose fantasy system, and sense of entitlement, over the state of Canary Wharf. I would not judge any mental illness as such to be contributing to this."
A clear indication that whatever problems he has, the commission of this offence could not, at least primarily, be attributable to his mental problems. Finally, there is a report dated the very day of sentence from Dr Sullivan who carefully went through what he described as features of an anti-social personality disorder and in three ways indicated that the fact that there is no actual psychotic illness and no mood disorder indicates that for no reason would a Mental Health Act disposal be appropriate. Hence, the judge was faced with no alternative, as is realistically conceded by Miss Power, but a prison sentence and a prison sentence in the circumstances of this offence which had to be substantial.[9]Miss Power argues that in a case of this kind, although there are no guideline cases on the topic, with a maximum sentence of seven years for the offence, three years was too high. She points out that the plea was entered at the earliest possible opportunity following charge and that the matters which we have referred to in some detail indicate further that three years was too long.[10]Having considered the case carefully we agree and this appeal is allowed to the extent that we reduce the sentence of three years' imprisonment to one of two years' imprisonment. To that extent this appeal is allowed.