Abstract
Mental Ill-health
Wrong to promote rehabilitation at expense of punishment: Robbery
Aged in his early 20s and heavily intoxicated, T. approached a vulnerable man in a park, the victim being his 50s with learning difficulties and schizophrenia, and demanded money. When V. tried to run away T. chased him, shouting aggressively, and when V. tripped and fell T. held him down and punched him, continuing to demand money, finally biting off the top of his ear before ‘swaggering off’. He had been spoken to by police officers shortly beforehand and he was quickly arrested, being aggressive in reaction, later claiming, completely without foundation, that he had beaten up someone who had raped him. At the time he committed this assault with intent to rob T. had been on licence in respect of a 30-month term of imprisonment imposed 20 months earlier for robbery of a shopkeeper at knifepoint when intoxicated, a crime that in turn had been committed while he was on licence from a 23-month sentence imposed for dishonesty, driving while disqualified and breach of a suspended sentence. Two months earlier he had committed criminal damage. Initially bailed for the new offence he was later recalled for around 6 months following revocation of his most recent licence.
After various delays, T. appeared for trial 2 years following the park crime. His counsel sought a Goodyear indication. Though assault with intent to rob does not the subject of any Definitive Guideline, it was common ground that it was akin to either a Category 1B or 2B offence within the Robbery guidance (2016). The judge determined to treat it as within Category 2B and said that he would give credit for a guilty plea of between 15% and 20%, despite lateness, as this would spare a very vulnerable victim from giving evidence, in which case the maximum sentence would be 40 months’ imprisonment.
A pre-sentence report (PSR) reported that T.’s childhood had been chaotic, his mother having served a prison sentence. He had been excluded from school at the age of 14 and had run away from home at the age of 15, thereafter living on the streets, associating with older men who introduced him to drug misuse which he funded through offending. He had amassed around 80 previous convictions, mainly for acquisitive property offending. He told the probation officer that he had been a victim of sexual abuse. He was now living with a woman partner with mental health problems, for whom he acted as carer, thus complicating his capacity to undertake unpaid work. The PSR author considered that immediate custody ‘would have a negative impact on [T.’s] mental health’ and would ‘provide significant barriers in the future’ that could lead to reoffending, proposing instead a 24-month community order with a rehabilitation activity requirement, focusing on victim awareness and alcohol and substance misuse, and a curfew requirement.
Following guilty plea, an alternative count of wounding with intent being left on file, T.’s counsel claimed that his personal circumstances had changed dramatically since the crime. He had stopped taking illicit drugs, had distanced himself from former associates, had cut down on his consumption of alcohol, was living with and caring for his partner and had consulted his GP about his mental health issues (anxiety and depression). It was conceded that 2 months prior to sentencing, he had pleaded guilty to a s.4 public order offence arising from a dispute with a neighbour, incurring a fine, but this was cast as an incident that had ‘got out of hand’. He was said to be fearful that he would resort back to using drugs to cope with further imprisonment and thereafter would be left largely without assistance.
Imposing a 2-year community order with a 200-hour unpaid work requirement and a 20-day rehabilitation activity requirement, the judge stated that 40 months’ imprisonment, though justified, would not benefit either society or T. He was taking an exceptional course, considerably outside the guidelines, because T. had kept out of trouble for the past 2 years and seemed to have turned his life around, caring for a partner whose life would be made more difficult without him, and was seeking to address his own mental health difficulties. It was ‘infinitely better that society should benefit from [his] rehabilitation’ rather than the risk associated with imprisonment that he would return to his past mode of life.
On reference by the Attorney General on grounds of undue leniency, attention was drawn to the aggravating factors within the Guidelines. Specifically, biting should be equated with ‘use of a weapon to inflict violence’ and biting off part of V.’s ear should be regarded as ‘use of very significant force in the commission of the offence’. T.’s personal mitigation, though highly relevant, could carry only limited weight in the face of such serious offending. Further, his very late plea had merited only a 10% discount.
The Court of Appeal agreed that biting could properly be regarded as the use of a weapon but did not consider there to be any evidential basis to support the claim of use of ‘very significant’ force. As regards level of harm, the case had fallen between Categories 1 and 2. The judge would have been entitled to say that the appropriate sentence, before credit for plea, would be 5 years’ imprisonment. The assertion that T. had ‘kept out of trouble for the past 2 years’ was an overstatement, given that he had been recalled to prison for some 6 months and thereafter had reoffended, albeit in a far less serious way. While he appeared to have been avoiding drugs, he had not shown any remorse for his actions. After his initial drunken statements about what had happened, he had continued to deny the offence and to contest the prosecution. It was also wrong to assert that when released on licence after a custodial sentence, he would be left largely without assistance and that meaningful support for him in addressing his problems could only be obtained by imposing a community order. Though imprisonment would be hard for T., with the risk of testing his current good resolutions beyond his capabilities, and on his partner, set against that was the need to impose a just and proportionate punishment for a very serious offence committed against a vulnerable victim while on licence. The sentence imposed was simply not adequate and the judge could not properly have come to that decision. A term of 40 months’ imprisonment was substituted.
ATTORNEY GENERAL’s REFERENCE (R v TREMAYNE), [2019] 1 Cr App R(S) 52.
Rehabilitation at expense of punishment: Class A drug supply
When the police attended L.’s flat in 2016 after a young woman had fallen from a first floor window there, sustaining fatal injuries, officers found him in an agitated and intoxicated state, toxicology reports subsequently identifying the presence of cocaine. A search discovered doses of the hallucinogenic drug LSD, quantities of anabolic steroids, plus prescription medicines and paperwork/paraphernalia indicative of drug dealing, including benzococaine, commonly used to cut controlled drugs. Quantities of cocaine (of a high level of purity – 79%), dibutylone and methedrone were found in a garage rented by him. In interview L. gave a prepared statement, confirmed by his partner, that there had been a party at the flat involving drug-taking over most of the preceding weekend, attended by the injured woman. As regards the drugs found at his flat and in the garage, he gave ‘no comment’ answers. The controlled drugs were assessed to have a market value of between £8000 and £15,000, and the prescription-only medicines were valued at £5600. In anticipation of contested trial, he made a defence statement accepting possession of the drugs found at his premises but claimed that all were for his recreational and personal use. Aged in his late 20s, L. had no prior convictions and had no criminal history save for an unrelated formal warning at age 14.
In the course of discussion with counsel in her chambers before a jury was sworn (it now being 2018), the Crown Court judge referred to her duty to rehabilitate offenders and thus to protect the public from future offending, as well as to punish, observing that there seemed limited point in imprisoning persons who had been addicted to drugs where they had made clear efforts to turn their lives around, given that the drug problem was out of control in jail. She described herself as being prepared to give people one chance and one chance only. She did not give a formal Goodyear indication of sentence. Counsel were agreed that under the terms of the relevant Definitive Guideline (2012), L., if convicted, would be deemed to have played a ‘significant’ role for supply purposes, thus involving for Class A drugs a starting point of four-and-a-half years’ imprisonment.
Later that day, L. changed his plea to guilty on all counts of possession with intent to supply, two involving Class A (cocaine and LSD) and five others in respect of Class B and C substances. He now accepted that he had been supplying drugs not just to friends but to other acquaintances who he knew through the local drugs party scene and anabolic steroids by post to other body builders. Psychiatric evidence available to the court indicated that L. had a mixed neurodevelopmental disorder with features of ADHD and Asperger’s. By his account, he had begun to take drugs at the age of 18 ‘to help him socially’, including steroids to promote body building; his use of drugs had increased to the point of dependency in his mid-20s when his father was diagnosed with prostate cancer. Subsequently, he had used ketamine to help with symptoms of PTSD following his friend’s death but he had been able to cease drug use later in 2016, accessing counselling, though he admitted occasional relapse. The psychiatrist indicated that it was well recognised that individuals with ADHD misused drugs, in particular stimulants, with greater frequency than the general population, though he could not comment on any possible relationship between L.’s mental health and his involvement in drugs supply.
A PSR reported a similar account of L.’s drug history. He had told the probation officer that he had not initially felt sufficiently stable enough mentally to accept the consequences of his actions and hence had pleaded not guilty. He claimed that his attitude to substance misuse had changed significantly with the help of counselling and he did not want to return to drug use. He had moved away from the area where he had been supplying others to distance himself from former associates. He and his partner had married and he was now undertaking voluntary work with a charity where he was considered a ‘trusted and valued’ colleague. The probation officer assessed him as a low risk of reoffending and commented upon his suitability for unpaid work and a rehabilitation activity requirement if the court was considering a community-based penalty.
The judge accepted that L. had no responsibility for the death of his woman friend but observed that consumption of Class A drugs had led to her death and he had been ‘peddling human misery’. However, he had been experiencing what was then an undiagnosed medical disorder, Asperger’s, with a dissociative disorder, that undoubtedly underpinned his addiction to drugs. He had since made very significant changes in his life, not least through engaging in a substantial and still continuing period of counselling. She imposed concurrent terms of 2 years’ imprisonment for each of the Class A drug offences, 6 months’ imprisonment for each of the other offences of possession with intent to supply and 2 months’ imprisonment for the offence of simple possession, each suspended for 2 years, with requirements of 300 hours’ unpaid work, a curfew requirement for a period of 4 months and a rehabilitation activity requirement for up to 15 days.
On reference by the Attorney General on grounds of undue leniency, given several offence-centred aggravating factors, the Court of Appeal learned that L. had recently been offered a permanent job by the charity and he and his wife were planning to set up a dog care centre. It was argued on L.’s behalf that immediate imprisonment would deprive him of his support network, would expose him to temptation to return to drugs and would have an adverse effect upon his mental health.
The Appeal Court began by noting that due application of the sentencing guideline would have resulted in a total sentence of not less than about four-and-a-half years. The judge had been required to follow the guidelines unless satisfied that it would be contrary to the interests of justice to do so. Though she opted to focus on the rehabilitation of the offender, she had attached undue weight to that aspect of sentencing. The statutory aims of punishment of offenders, the reduction of crime including by deterrence and the protection of the public should, in the circumstances of this case, have carried very considerable weight. She did not, in the Court’s view, ‘identify compelling reasons why the rehabilitation of this offender so far outweighed the public interest in the appropriate punishment of serious crime’ that departure from the guideline was justified. She also placed significant weight on the delay between the offending and the point of sentence but L. had known all along that he had been supplying drugs and that the drugs seized from his premises were intended for supply to others. ‘We do not discourage leniency in an appropriate case. But without seeking to define the precise scope of a short or moderate custodial sentence, we have no doubt that this was not a proper case to treat a suspended sentence as an alternative’. The sentence imposed was unduly lenient but it was right to reflect L.’s performance of many of the requirements of the suspended sentence orders and his continued good work by making a significant reduction from the total sentence which would have been appropriate as at the date of the offending. A total term of 3 years’ imprisonment was substituted.
ATTORNEY GENERAL’s REFERENCE (R v LEWIS), [2019] 2 Cr App R(S) 3.
Minimum term for firearm possession: Adopting a holistic approach
Having been in a relationship with a woman partner, subsequently becoming her lodger, N. had assaulted her in 2015 (thus incurring his first conviction) and had moved out. When the police attended her home in a matter unrelated to him, they located various weapons – four CS gas canisters, five stun guns disguised as mobile phones and an electrified knuckleduster. All but one of the stun guns were found to be in working order, though only one of them was charged. Shortly before leaving that address, he had sent a text to another man, asking if he still had ‘my stun guns that you took or have you sold them because I need them back’. Examination of his computer revealed extreme pornography featuring bestiality. In due course, he pleaded guilty to possession of prohibited/disguised firearms and the pornography, submitting in respect of the weapon offences a basis of plea, namely that he had ordered the stun guns and the CS gas canisters over the Internet from China in two consecutive orders shortly after moving to new accommodation between 2009 and 2010, because he thought it was a high crime area and he felt unsafe. He had placed a second order because the first order had not arrived. Apart from unpacking the stun guns and checking that they were operational, he claimed they had been kept since then in their packaging inside a metal case without the plug adapters that would have been necessary to charge them. This was not accepted by the prosecution and a Newton trial followed. The judge rejected N.’s evidence as to the circumstances in which he had come into possession of the disguised firearms and his explanation for being in possession of them, though adding that that he could not be sure on the evidence why N. had bought them or kept them for so long.
A psychiatric report gave details of N.’s history of mental illness and alcoholism, largely dating from the period since 2006, when he had become the carer for his brother with depression, aggression and alcohol dependency until the latter’s suicide in 2008. N. was diagnosed with: recurrent depressive disorder of moderate severity; harmful use of alcohol; post-traumatic stress disorder, causing flashbacks and nightmares (as a consequence of finding his brother hanged); and agoraphobia. The report considered that his problems had become increasing chronic, complex and severe over the last 10 years and the prognosis for recovery appeared poor. ‘I doubt he would cope in a custodial environment and he would be a high risk of self-harm and suicide’. His mental disorders were not currently of a nature or degree to warrant treatment in hospital and a mental health disposal was not recommended. The PSR writer advised that any risk of harm posed by N. could be effectively managed in the community with alcohol treatment and rehabilitation activity requirements.
Imposing a total of 5 years’ imprisonment, the judge indicated that he regarded his Newton finding as conclusive against there being exceptional circumstances that could justify not imposing the statutory minimum 5-year term required for that kind of firearm offence (Firearms Act 1968 s.5(1A)(2)). Though he accepted the findings in the psychiatrist’s report, he determined that this evidence, viewed alone, could not amount to ‘exceptional circumstances’ but he opted not to require the 15-month term for the bestiality offence to be served consecutively as would otherwise have been proper practice.
On N.’s appeal against sentence, the Court of Appeal received a further psychiatric report that confirmed the previous diagnosis and also outlined his physical ill health, associated with his smoking and alcohol use – sleep apnoea, a visual impairment arising from optic nerve damage, dysplasia and a dental abscess that had progressed into Lugwig’s Angina (a potentially life-threatening infection). Contrary to the previous psychiatrist’s fears, N. had coped with imprisonment, albeit that the stress thus caused continuing to have some adverse effect on his mood, leading to symptoms of depression from mild to moderate severity. On the other hand, he was benefiting from enforced abstinence from alcohol. Overall, his mental and physical health needs were being met satisfactorily.
The Court of Appeal reminded itself of the principles applicable in respect of the minimum term provision: the purpose of the mandatory minimum term is to act as a deterrent; circumstances (relating to the offence or the offender) are exceptional if to impose 5 years’ imprisonment would amount to an arbitrary and disproportionate sentence; sentencers should not undermine the intention of Parliament by accepting too readily that the circumstances of a particular offence or offender are exceptional; it is necessary to look at all the circumstances of the case together, taking a holistic approach – it is not appropriate to look at each circumstance separately and conclude that, taken alone, it does not constitute an exceptional circumstances; there can be cases where no single factor by itself will amount to exceptional circumstances, but the collective impact of all the relevant circumstances makes the case exceptional; the sentence should always have regard, among other things, to four key questions (R v Avis (1998)): (i) what sort of weapon was involved? (ii) what use, if any, was made of it? (iii) with what intention did the defendant possess it? (iv) what is the defendant’s record? reference to the circumstances of the offender is important; it is relevant that an offender is unfit to serve a 5-year sentence or that such a sentence may have a significantly adverse effect on his health; each case is fact-specific and the application of the principles dependent upon the particular circumstances of the individual case; unless the judge is clearly wrong in identifying exceptional circumstances where they do not exist or clearly wrong in not identifying exceptional circumstances where they do exist, the Court of Appeal will not readily interfere.
In this case, when determining that the psychiatric evidence could not amount to exceptional circumstances, the judge had not adopted a holistic approach. As regards the four Avis questions, these were not lethal weapons but disguised stun guns can be used to inflict serious injury and these fell to be dealt with in line with the deterrent policy intentions of the statute. While it was impossible to say why these weapons were acquired or kept by N., the number of them, the nature of how they were stored and the text he had sent belied any purely defensive and self-protection motive. That text had suggested subsequent dealing with either these weapons or others. ‘This is not the kind of case in which these were acquired and left untouched and unthought about’. It could not be said with any confidence that no use was made or intended to be made of them by anyone. ‘Putting these stun guns into circulation is the very mischief at which the mandatory deterrent sentence is aimed’. N. appeared unable to point to anything in the acquisition or possession of these weapons that could amount to exceptional circumstances. As regards his physical and mental health, the medical evidence now suggested that this was being well managed in prison and that it was not possible to say that a 5-year sentence on him was unduly onerous on that account. His appeal was dismissed.
R v NANCARROW, [2019] 2 Cr App R(S) 4.