Southwell, R. v [2008] EWCA Crim 490

[2008] EWCA Crim 490Case No 200706201/A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 25th February 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE IRWIN
MR JUSTICE COULSON
Between
R E G I N ACrownv
Between
WAYNE SOUTHWELL
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Whalley appeared for Appellant
J U D G M E N T
[1]Mr Justice Coulson: On 30th July 2007, at the Crown Court at Carlisle, the appellant pleaded guilty to making a threat to kill. On 26th October 2007 His Honour Judge Batty sentenced him to imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of four years less 210 days spent on remand.[2]This appeal against sentence, brought with the leave of the single judge, does not take issue with the principle of the IPP imposed. The complaint is solely that the four year minimum term is manifestly excessive.[3]The facts were these. The appellant blamed his father for his sister's death from an overdose. They had a strained relationship. The appellant had a long history of psychiatric problems and drug abuse. In March 2007 the appellant was being treated in the Carlton Clinic, a psychiatric unit. Whilst he was there he outlined to members of staff a plan to kill his father. He told Mr Messenger, a psychiatric nurse, that he had a clear plan to kill his father. He intended to ask his father for lift, get him to stop in a quiet back road and stab him with a knife. Mr Messenger asked whether he intended to kill his father and the appellant replied, "Yes." He outlined a similar plan to the consultant psychiatrist, Mr Ward.[4]The appellant went to his father's house in the early hours of 24th March 2007. He banged on the door. His father let him in and made him a cup of tea. The appellant asked his father to drive him somewhere in the car. At that point his father called the police. The police arrived. The appellant told them that he only wanted to take his father outside to "kick his head in." He said to the police, "I haven't fucking finished yet."[5]In 2001, the appellant had committed a previous specified offence of wounding with intent for which he had been sentenced to five years' imprisonment.[6]When sentencing the appellant, the learned judge set out the psychiatric reports which he had seen and explained in detail why there had to be an indeterminate sentence for public protection. He gave the appellant full credit for his guilty plea and said that the notional determinate sentence would have been eight years' imprisonment. That, of course, was the basis of the four year minimum term identified by the judge.[7]Although he does not say so in terms, the learned judge's starting point must therefore have been 12 years, discounted by a third for the appellant's guilty plea. We consider that that was an incorrect starting point because the maximum penalty under section 16 of the Offences Against the Person Act 1861 is ten years. We do, however, consider that this was an extremely serious case and therefore it was a case which deserved a stern sentence.[8]By reference to other decisions of this court, and in particular the sentences of five years on a plea of guilty for similar offences, in both R v Tucknott [2001] 1 Cr App R(S) 93 and R v Smith [2004] 2 Cr App R(S), we have concluded that the correct notional determinate sentence, giving due allowance for the guilty plea, was five years. That would make the minimum term under the IPP two and a half years less the time spent in custody.[9]In addition, we bear in mind that, when granting leave, the single

judge said this:

"You rightly do not apply for permission to appeal against the sentence of imprisonment for public protection but you have arguable grounds that a notional determinate sentence of eight years' imprisonment is manifestly excessive bearing in mind that the protection of the public from your further offending will be a matter for the Parole Board."
[10]It seems to us that that last point is obviously correct and important. Although we are reducing the minimum term for the reasons that we have given, we do so in the knowledge that this dangerous appellant will remain incarcerated until the Parole Board decide otherwise. Accordingly, for all these reasons, we consider that the correct minimum term is two and a half years less the time spent on remand. To that extent only, we allow this appeal against sentence.