Fretwell, R v [2016] EWCA Crim 601

No: 2015/4930/B2[2016] EWCA Crim 601
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 15 April 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE McCOMBE
MR JUSTICE IRWIN
THE RECORDER OF MIDDLESBROUGH
HIS HONOUR JUDGE BOURNE-ARTON QC
33(Sitting as a Judge of the CACD)
Between
R E G I N ACrownV
Between
CARL FRETWELL
Computer-Aided Transcript of the Stenograph Notes ofWordWave International Limited trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Non-Counsel Application
J U D G M E N T

LORD JUSTICE McCOMBE:

[1]On 24th June 2015 in the Crown Court at Manchester, before His Honour Judge Blake, the applicant pleaded guilty to an offence of robbery and on 15th July 2015 he was sentenced by the judge to an extended sentence of imprisonment comprising a custodial term of four years and an extended period of licence of two years. He now renews his applications for extensions of time - some three months in the case of conviction and two months in respect of sentence - to apply for leave to appeal against both conviction and sentence after refusal of leave by the single judge. He also applies for bail.[2]The facts of the case were as follows. On 7th April 2015 the complainant in the case, a lady aged 53, had parked her car outside her place of work, which was a mental health clinic, just before work one morning. She was retrieving her bag from the rear of the car when she felt someone pull on her shoulder and a man saying "Give me your bag". Believing it to be a prank she simply said "Get off" and the man said "Just give me your car keys." She was pushed, kneed and punched repeatedly in the back. The man said:
"Do you know what the NHS has done to me?"
A security guard heard the commotion and saw the man raising either a broken glass or bottle towards the complainant's neck. He attempted to intervene but the man shouted at him not to come any closer. The complainant threw her car keys towards the security officer. This annoyed the man who said: "I'll stab you." She managed to get into her car. As she did so unfortunately the man pushed her into the passenger seat and started the engine with the keys that he had somehow managed to retrieve. She got out of the car and the man drove off. That man was this applicant.[3]The complainant suffered cuts to her neck, chin and collarbone. The applicant was stopped after a period of four hours in the motor vehicle and was arrested. He made no comment at the time of interview.[4]The applicant is now 31 years of age and had one previous conviction in 2008 for an offence of theft for which he received a fine.[5]At the time of sentence there was a report before the judge from an approved mental health practitioner who had some knowledge of the applicant's background. He reported that in 2012, after a diagnosis of schizophrenia, the applicant had been discharged from detention pursuant to section 2 of the Mental Health Act. He did not voluntarily engage with treatment. He began smoking cannabis which had a negative effect on him, making him hostile and aggressive. He had a further brief admission into medical care but again did not engage. In 2013 he was again assessed under section 2 of the Act. After that he stayed in the hospital, on this occasion on a voluntary basis, but failed to take medication that had been prescribed. He was "sectioned" again in April 2014 and forcibly medicated on this occasion. After discharge he remained for a time in contact with the report author and attended at his office on the day of the present offence. Having regard to what he knew of this present offence, the author of the report considered that the applicant had probably lapsed into cannabis use and had developed delusional and persecutory beliefs.[6]A further letter from another doctor to the prison authorities expressed concerns about the escalating risk that the applicant presented. A pre-sentence report concluded that the applicant presented a high level of risk of harm to the public and that no plausible explanation for the instant offence had been provided.[7]In passing sentence the learned judge said that the applicant had a grudge against the National Health Service. He habitually smoked cannabis and was dangerous. The appropriate starting point for the determinate sentence after a trial would have been six years. He afforded the applicant credit for his guilty plea, reducing the sentence to one of four years. In view of the danger the judge imposed the extended licence period of two years.[8]On the present application for extensions of time the applicant blames his representatives at trial and says that he thought they would lodge an appeal on his behalf. He goes on to say that he has been advised by the CCRC that he could seek leave to appeal without the intervention of a solicitor and has done so.[9]In spite of criticisms of his former advisers he has declined to waive privilege to enable those criticisms to be properly investigated.[10]On the substance of the proposed appeals, as to conviction, the applicant claims he was denied a fair trial because he claimed his solicitor told him he was only allowed to plead guilty. He claims to have been acting in self-defence on the date of the offence in the circumstances that we have mentioned. As for sentence, he says the judge was wrong to find that he was a dangerous offender as he had not offended prolifically in the past.[11]In addressing these points the learned single

judge refused the applications and said this:

"This applicant pleaded to the indictment and now seeks to appeal against his conviction. He blames his lawyers for advising him that he could not have a trial. He has refused to waive privilege. His account of the advice he received is so entirely implausible that there is no prospect that the Court of Appeal will accept it. His suggestion that he acted in self-defence is unsustainable and contradicted by the account he gave to the author of the pre-sentence report. He has refused to allow the court to consider what actually happened by reference to the solicitors' file, attendance notes and recollection. In particular, it appears from the pre-sentence report that there is a history of mental illness and that this was investigated to some extent before sentence. No psychiatric report was disclosed, although there was quite extensive information in reports obtained from NHS sources. The file would therefore have been illuminating. In its absence there is no prospect that the court will hold that the conviction is unsafe. The appeal against conviction is totally without merit and leave is refused. There is no doubt that this applicant is dangerous within the meaning of the dangerous offenders provisions in the Criminal Justice Act 2003 (please see the facts of the offence and the medical information and the pre-sentence report). The issue was whether an extended sentence was required or whether the court should investigate a hospital order with a restriction. Given that this applicant becomes mentally unwell when he takes cannabis and recovers when he does not a custodial sentence was justifiable. A six year extended sentence with a custodial term of four years was not arguably manifestly excessive or wrong in principle. The appeal against sentence is totally without merit and is dismissed. In these circumstances nothing would be achieved by granting an extension of time and I decline to do so. Bail is refused as this appeal is totally without merit."
[12]Having considered the papers afresh, with those remarks of the learned single judge we entirely agree. These applications are indeed wholly without merit and the renewed applications are refused.[13]The single judge also indicated in his decision that the full court should consider making a loss of time order. No representations have been received from the applicant on that subject. Were it not for the history of illness recited in the facts that we have mentioned, we would direct a loss of time order of substantially larger extent than we in fact intend to do. The application, as we have indicated, as did the single judge, was utterly hopeless. It has been renewed in the face of the single judge's warnings and we direct accordingly that 14 days spent in custody, pending the consideration of the applications, should not count towards the custodial term of the applicant's sentence.