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R v Lavender [2011] EWCA Crim 2420

(1) On the material before the sentencing judge, there was nothing wrong in principle with an extended sentence. (2) However, given the recent psychiatric evidence, it was now arguable that the option of a hospital order with or without a restriction order needed to be considered, so leave to appeal was given and a representation order was granted.

Transcript

The transcript will remain below until it is published on Bailii.

Neutral Citation Number: [2011] EWCA Crim 2420


No: 201101146/A6


IN THE COURT OF APPEAL


CRIMINAL DIVISION



                                                         Royal Courts of Justice




                                                                          Strand




                                                                London, WC2A 2LL









                                                     Wednesday, 5th October 2011









                                  B e f o r e:




                              LORD JUSTICE TOULSON




                              MR JUSTICE OPENSHAW




                            HIS HONOUR JUDGE ROOK QC




                        (Sitting as a Judge of the CACD)




                                  R E G I N A




                                       v




                           JENNIFER MARGARET LAVENDER




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1.     HIS HONOUR JUDGE ROOK:  This is a renewal of an application for an
extension of time in which to apply for leave to appeal against sentence and a
representation order after refusal by the single judge.


2.     On 26th January 2010 the applicant, who is aged 23, pleaded guilty to one
offence of arson.  She was committed to the Crown Court for sentence and on 25th
May 2010 at Exeter Crown Court the applicant was sentenced by His Honour Judge
Cottle to an extended sentence of 4 years pursuant to section 227 of the
Criminal Justice Act 2003, comprising a custodial term of 12 months'
imprisonment and an extension, that is to say an extended period of licence of 3
years, with a direction under section 240 of the Criminal Justice Act 2003 that
122 days count towards sentence.


3.     In written grounds of appeal it was submitted on behalf of the applicant
that an extended sentence was wrong in principle.  It was argued that an
extended sentence was manifestly excessive given the circumstances of the
offence and the applicant's background.  In particular, it was contended that
insufficient consideration was given to the applicant's mental health issues and
the fact that she had requested help from the time of her arrest and an extended
sentence is said would not allow the applicant to be treated for any illness
whilst in custody.


4.     In refusing leave the single judge said, on the material that was then
before him, he did not consider that there were any arguable grounds of appeal
that had been made out.  Since the single judge's refusal of leave a further
psychiatric report has been prepared for this court by Dr Susan Iles, a
consultant forensic psychiatrist and the clinician responsible for the
applicant.  Dr Iles has been in charge of the applicant's care since the
applicant was transferred to the medium secure setting of Chadwick Lodge from
Peterborough Prison on 1st February 2011 under sections 47 and 49 of the Mental
Health Act.  The applicant had been recalled to prison from the community in
August within weeks of her release on extended licence.


5.     Dr Iles' main diagnosis is that the applicant is suffering from
borderline personality disorder, which is a sub type of emotionally unstable
personality disorder.  This has been apparent, recalls Dr Iles, since the
appellant's teens and its roots lie in her childhood.


6.     According to Dr Iles the applicant's personality disorder is of a long
standing and pervasive nature and has led to the applicant to behave in ways to
cause distress to both herself and others and which impair her social function.
Since the applicant's admission it has become increasingly clear to Dr Iles that
the applicant might also be suffering from an autistic spectrum disorder such as
Aspergers Syndrome.  Dr Iles feels that had the existence of such a pre‑existing
hitherto undiagnosed mental disorder been taken into consideration, psychiatric
conclusions and recommendations for disposal might have been very different.
For example, the court may have seen fit to make the applicant the subject of a
hospital order with a restriction order which might have had benefits for future
supervision and risk management.


7.     In our judgment, on the material before the sentencing judge, there was
nothing wrong in principle with the sentence imposed.


8.     As the single judge stated when refusing leave in the light of the
circumstances of the offence, the nature of the offence and the applicant's
prior offending and the content and conclusions of the pre‑sentence and
psychiatric reports there was ample material to support the judge's conclusion
of dangerousness.


9.     Further, in our view, having concluded that the applicant posed such a
risk the judge was entitled to pass an extended sentence which accorded with the
recommendation made by the then psychiatrist as to how best to deal with the
applicant's mental health issues allowing a structured return to the community
with supervision.


10.     However, in the light of Dr Iles' recent report, as the consultant
forensic psychiatrist in charge of the applicant's care and the fresh diagnosis
of the applicant as possibly suffering from autistic spectrum disorder, it is
now arguable that the option of a hospital order with or without a restriction
order needs to be considered as a matter urgency.  Accordingly, we give leave to
appeal against sentence and we grant a representation order.  We make it clear
that in being given leave, the applicant should not make any assumptions about
the ultimate outcome of this appeal.


11.     For the court to be able to consider making of a hospital order, with a
restriction order, there will need to be a report from two appropriate medical
practitioners and the court will need to hear oral evidence from one of those
practitioners ideally Dr Iles.


12.     We ask that the prosecution be represented at the hearing.  The parties
will need to consider whether a hospital order, coupled with a restriction order
amounts to a more severe sentence than the extended sentence that was originally
passed and we invite written submissions from the prosecution on this issue.

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