View source for (2010) EWCA Crim 1364

Neutral Citation Number: [2010] EWCA Crim 1364

No: 200905912 A1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2A 2LL

Wednesday, 14 April 2010

B e f o r e:

LORD JUSTICE RIX

MR JUSTICE OUSELEY

MR JUSTICE OPENSHAW

R E G I N A

v

DAVID HUTCHINSON

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MR J HALSEY appeared on behalf of the Appellant

J U D G M E N T

(As Approved by the Court)

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1.     LORD JUSTICE RIX: On 20 September 2008, at Crawley Magistrates' Court, the appellant, David Michael Hutchinson, pleaded guilty on one indictment to a count of burglary and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Court Sentencing Act 2000. On 18 November 2008, at the Crown Court at Lewes, the appellant pleaded guilty on another indictment. On 27 January 2009, he was sentenced by Mr Recorder Gower QC as follows. On the Lewes indictment, a count of robbery, to imprisonment for public protection; on the burglary indictment, to 12 months' imprisonment concurrent. The period of 30 months, less 129 days spent on remand, was specified as the specified period for the purposes of the sentence of imprisonment for public protection. The appellant now appeals against sentence by leave of the single judge who granted the necessary extension of time for these purposes.

2.     This appeal arises out of the following facts. At about 9pm on 28 August 2008 a woman left her home address in order to meet a friend. Her route took her past a parade of shops. As she walked past them she saw the appellant standing there staring at her. She felt uneasy, realised that he had started to follow her and, as the appellant got closer, she decided to phone a friend on her mobile phone, stepping aside to allow him to pass. As she did so she heard him saying "handbag now". He grabbed her from behind, put a hand over her mouth, put his other hand on her left shoulder, pulled her right back with his hand over her mouth, demanded her handbag from her twice more, pulled it from her arm, and pulled a carrier bag out of her hand before running off. The police were contacted. They visited a local hostel and found the appellant there. He was arrested but in interview denied any involvement in the robbery.

3.     However, a few weeks later, on 18 September 2008, the appellant went back of his own accord to the police station and said he wanted to make a full confession to the robbery. He handed Miss Baker's passport to the police and, upon interview, made full admissions. He also admitted the burglary of a house between 13 September and 14 September 2008, when he had entered, during the day time, the home of a retired widow through an unsecured side kitchen door and there took two handbags from a table in the kitchen. He subsequently used one of the bank cards from one of the handbags to withdraw £500 from that woman's bank account.

4.     In his sentencing remarks, the learned judge said that the robbery had involved the use of significant force on a vulnerable young woman out on her own after dark. The attack had left her upset and scared. He had a considerable criminal record, mainly for offences of minor dishonesty, but he had a previous conviction for robbery. The two offences of robbery and burglary for which he was being sentenced had been committed whilst he was on licence. Account was taken of the contents of pre‑sentence reports and a psychiatric report before the court.

5.     The robbery was a serious specified offence and his dangerousness had to be assessed. The learned judge decided he was dangerous in view of the following five factors:

1) he had been involved in a robbery at knife point in the past, even if no injury had in fact been inflicted on that occasion;

2) he had been described in the pre‑sentence report as presenting a medium risk of serious harm to the public;

3) he had been diagnosed as suffering from paranoid schizophrenia;

4) although, in the opinion of the psychiatrist whose report he had read, the appellant was not currently detainable under the Mental Health Act, nevertheless, both offences had been committed notwithstanding the fact that he had been in receipt of mental health treatment at the time;

5) he was a drug addict and it was the judge's view that there was a significant risk that "you will do whatever it takes", including the infliction of serious injury, in order to feed that habit.

Therefore, the appropriate sentence was one of imprisonment for public protection.

6.     In those sentencing remarks the judge had referred to the psychiatric report of a Dr Angus to which we will make further reference below.

7.     The appellant was born on 9 May 1984 and so was 24 at the time of sentence. His previous convictions started in from the year 2002. He had 11 convictions for 30 offences. Many of them were of a minor kind but, as the sentencing judge observed, there was the important previous offence of robbery for which he was sentenced to 54 months detention in a Young Offenders Institution in April 2004. That previous robbery had involved the threatening of an elderly female shop keeper with a knife. In July 2007, after completing not only that sentence for robbery but a number of other minor sentences for which he had been sentenced thereafter, on the eve of leaving prison at the end of his then current sentence, the appellant made a serious attempt at suicide and was transferred at the end of his sentence directly from prison to a mental health hospital where he stayed for 7 months being treated for his paranoid schizophrenia.

8.     The sentencing judge had three reports before him, two of them from the writer of the pre‑sentence report. The author of the pre‑sentence report said that as she had not yet seen the psychiatric report which she understood was under preparation, she was not in a position to make a recommendation to the judge. However, there was a high risk of him re‑offending and a medium risk of serious harm to the public. He had a number of mental health difficulties which were exacerbated by his misuse of drugs.

9.     A few days later the psychiatric report of Dr Angus followed. This stated that the appellant had been diagnosed as suffering from paranoid schizophrenia about a year before, that would have been during his 7 month detention in a mental hospital to which we have previously referred. He had a significant history of drug problems, he was still psychotic and believed that the police were trying to have him killed. He was frightened of being released into the community but it was difficult to treat paranoid schizophrenia in a custodial setting. He referred to his illness as a "major enduring mental illness", for which he said that the appellant continued to require treatment in a therapeutic setting. However, at paragraph 17.20 of the conclusions in his report, Dr Angus said that the appellant was not, in his opinion:

"Currently detainable under the Mental Health Act. He is certainly psychotic and acutely unwell. His psychosis has been partially treated, he is in a state of partial recovery, it is not necessary for his treatment to occur under the auspices of the Mental Health Act. He is happy to take medication and to comply with treatment."

10.     In an addendum to the pre‑sentence report the author stated that specialist interventions as recommended by Dr Angus would be time consuming and costly. So far as the possibility of a community order was concerned, it would not be possible to add a mental health treatment requirement in the absence of a named practitioner. It was in these circumstances that the judge considered that a Mental Health Act disposal was inappropriate and not open to him, and he imposed the sentence of imprisonment for public protection.

11.     Since that time the court has now been assisted by further reports. The fact is that, after a short while in prison, the appellant was transferred, under the provisions of section 47 and section 49 of the Mental Health Act 1983, to a mental health unit where he came under the care of Dr Dossett, from whom we have heard today as his treating doctor. Dr Dossett wrote a report which led to the appellant's transfer, his first report, on 22 June 2009. He there confirmed the diagnosis of paranoid schizophrenia. He said that the appellant showed significant persecutory delusions and has experienced auditory hallucinations, albeit the latter were subdued and lessened by anti‑psychotic medication. He reported that the appellant was accepting of treatment and felt safe in prison. It was his opinion that the appellant suffered from a significant mental illness, namely schizophrenia of the paranoid type, heavily complicated by his substance misuse. Unless both aspects of that dual diagnosis were addressed there were risks of prolonged hospitalisation, violence, further imprisonment, suicide, homelessness and unemployment. Those risks would all be significantly increased without treatment. He was of the opinion that it was unlikely that any of those significant risks would be ameliorated if the appellant were maintained within the prison system and he recommended transfer to a secure hospital. That is what happened.

12.     The section 31 judge, on reading these papers, called for a further report from Dr Dossett for the assistance of this court, specifically on the question of a section 37 and/or section 41 disposal under the Mental Health Act in respect of this offence of robbery. As a result of that direction or request we have been assisted by the further report of Dr Dossett, dated 2 February 2010. We have heard Dr Dossett today give evidence confirming the matters set out in his report. That report effectively confirms the conclusions of his first report and specifically recommends that, in the light of the appellant's history of mental illness, a hospital order under sections 37 and 41 ‑‑ that is with the addition of a restriction order under section 41 ‑‑ would have been the appropriate disposal. Ill as the appellant continues to be, Dr Dossett tells us, he has, as a result of treatment, improved from the time of his offence.

13.     We also have, through the assistance of the Criminal Appeal Office, for which we are grateful, a second report, this from Dr Rae, dated 26 February 2010, confirming her opinion also that the patient is suffering from a mental disorder within the meaning of the Mental Health Act and that that disorder is of a nature which makes it appropriate for the patient to be detained in a hospital for medical treatment. That treatment is available where the appellant presently is under the treatment of Dr Dossett.

14.     In his helpful written submissions, Mr Halsey accepts that, subject to the Mental Health Act disposal question, the judge could not be criticised for finding the appellant to be dangerous for the purposes of the dangerousness provisions of the Criminal Justice Act 2003, so that he would not otherwise have complained about the sentence of imprisonment for public protection.

15.     We are satisfied that, at the time of his offence, the appellant was suffering from the mental illness of paranoid schizophrenia and that a mental hospital order was the appropriate order. For reasons which are no longer clear ‑‑ the judge cannot be criticised, of course ‑‑ it was the opinion of Dr Angus, who wrote the only report available to the court at the time of sentencing, that a Mental Health Act disposal was unavailable. We now know better however. The judge can therefore not be criticised for his disposal but it is now clear that the appropriate order to have made was a Mental Health Act hospital order.

16.     In the light of the finding of dangerousness, which Mr Halsey does not dispute on behalf of the appellant on the material before the judge, we agree with the recommendation of Dr Dossett that our section 37 order should be accompanied by a section 41 restriction and we so direct.

17.     Therefore, for these reasons this appeal is allowed. The sentence of imprisonment for public protection is quashed and replaced by our orders for the appellant's detention under section 37 of the Mental Health Act 1983, accompanied by a section 41 restriction.

18.     Mr Halsey, Dr Dossett, thank you both very much indeed.