View source for Transcript of R v Ahmed (2012) EWCA Crim 708, (2012) MHLO 40

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Neutral Citation Number: [2012] EWCA Crim 708

No. 2011/04969/A4

                             IN THE COURT OF APPEAL

                               CRIMINAL  DIVISION

                                                Royal Courts of Justice

                                                       The Strand

                                                         London

                                                        WC2A 2LL

                                                Monday  26  March  2012

                                    B e f o r e:

                                 LORD  JUSTICE  RIX

                           MR  JUSTICE  GRIFFITH  WILLIAMS

                                         and

                              MR  JUSTICE  HADDON-CAVE

                                 ------------------

                                     R E G I N A

                                        - v -

                                    IMTIAZ  AHMED

                                 ------------------

                           Computer Aided Transcription by

            Wordwave International Ltd (a Merrill Communications Company)

                            165 Fleet Street, London EC4

                  Telephone No: 020 7404 1400; Fax No 020 7404 1424

                      (Official Shorthand Writers to the Court)

                                 ------------------

                 Mr M George QC appeared on behalf of the Appellant

                   Mr P Watson QC appeared on behalf of the Crown

                                --------------------

                                    Judgment

                            As Approved by the Court

                                Crown copyright©
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Monday  26  March  2012


LORD JUSTICE RIX:


1.  This appeal against sentence, which is brought with the leave of the single
judge, concerns an offence of manslaughter where a charge of murder has been
reduced to manslaughter by reason of diminished responsibility.


2.  On 5 July 2011, in the Crown Court at Manchester, before His Honour Judge
Goldstone QC, the appellant pleaded guilty to manslaughter (indicted as murder).
On 16 August 2011 he was sentenced to an indeterminate sentence of imprisonment
for public protection under section 225 of the Criminal Justice Act 2003, with a
minimum term of 63 months' imprisonment to be served before consideration for
release.


3.  The essential facts were these.  The appellant was a lodger in the home of
the deceased, Jeannette Huller, which she shared with her husband and 15 month
old son at Galsworthy Avenue, Manchester.  The appellant used the ground floor
front room as a bedroom.  He owed hundreds of pounds in rent for the time that
he had been living there.  Mr Huller was concerned that prior to the killing the
appellant had started to behave oddly in that he had stopped going to work and
would follow the deceased around the house, on one occasion into her bedroom.


4.  On 14 December 2006 Mr Huller told his wife to inform him if the appellant
did not leave for work.  Later that morning she informed her husband that the
appellant had failed to leave the house.  Her husband told the appellant over
the phone that he would have to find somewhere else to live if he did not attend
work.


5.  At 1.30pm Mr Huller returned home from work.  He found his young son in the
pushchair in the hallway and his wife in an unconscious state, sitting on the
floor in the room used by the appellant with a ligature around her neck.  He
attempted to rouse her but was unable to do so.  The ambulance service was
called and attended shortly afterwards, but his wife was pronounced dead at the
scene.  The cause of death was later determined by pathologists to be as a
result of strangulation by the ligature.


6.  The appellant was arrested on suspicion of murder the following day.  He
made no significant comment in interview.  Blood recovered from his clothing
matched that of the deceased.


7.  There followed a diagnosis of paranoid schizophrenia.  The offence was
committed on 14 December 2006.  On 9 May 2008, before His Honour Judge Henshell,
the appellant was found to have done the act, having previously been found unfit
to plead.  He was sentenced to a hospital order under section 37 of the Mental
Health Act 1983 with restrictions under section 41.  He spent three-and-a-half
years in a secure hospital before he was considered by the responsible medical
officer to have recovered sufficiently so as to become fit to plead.  It was in
consequence of this history that his plea of not guilty to murder but guilty to
manslaughter on the ground of diminished responsibility was ultimately made and
accepted.


8.  In addition to the three-and-a-half years that the appellant had spent in a
secure hospital, he had also spent fifteen months on remand.  In due course
Judge Goldstone was to take these two periods (amounting to
four-and-three-quarter years in all) into account in fixing a minimum period to
serve pursuant to a sentence of imprisonment for public protection.


9.  In his sentencing remarks Judge Goldstone described the facts of the case.
He observed that the appellant habitually drank to excess and abused drugs, and
was on occasion found with knives with which he had threatened to kill drug
users.  At the time of the offence he was suffering from paranoid schizophrenia
which led him to believe that the deceased was having a sexual relationship with
her 15 month old son and that she therefore had to die.  As such his mental
responsibility for his actions was substantially impaired, although the judge
commented that that impairment was partial only, in the sense that it was his
choice to put himself under the influence of alcohol and drugs and that in his
preparation to kill the deceased he had prepared not one but three ligatures.
Ultimately, however, the appellant fell to be sentenced not for murder but for
manslaughter.


10.  There was a considerable issue before the judge on the psychiatric evidence
in the numerous reports before him as to whether the appropriate disposal of the
case was, on the one hand, a hospital order, or, on the other hand, an
indeterminate sentence of imprisonment for public protection.  The judge
concluded that there were no grounds for making a hospital order.  As all the
psychiatrists agreed, because of his paranoid schizophrenia the appellant posed
a significant risk of causing death or serious injury by the commission by him
of further offences, and therefore the sentence to be imposed was one of
imprisonment for public protection.  The judge described the killing of the
deceased as "an awful crime" with aggravating factors.  First, the appellant had
used a knife to inflict additional injuries.  The deceased had suffered
gratuitous violence before she had died.  Secondly, the killing took place in
the presence of her 15 month old child.  The judge had regard to the mitigating
factors which included the appellant's age (which he referred to as 19 at the
time of the offence and 24 at the time of sentence), to his previous good
character, and to the significant (albeit partial) extent to which his mental
responsibility for his actions was impaired at the time of the killing.  The
judge's approach in fixing a minimum term before which the appellant could not
apply to be released from the sentence of imprisonment for public protection was
arrived at in the following way.


11.  It was common ground before the judge that the relevant starting point
category for the purposes of Schedule 21 to the Criminal Justice Act 2003 was
the ordinary starting point of fifteen years.  He considered that that starting
point was to be increased by the aggravating circumstances to which he had
referred and to be reduced by the mitigating circumstances to which he had
referred.  It also fell to be reduced by reason of the appellant's diminished
responsibility.  Taking those three factors into account (the aggravating
factors, the mitigating factors and the fact that the offence was not one of
murder but of manslaughter by reason of diminished responsibility) he ended up
with a minimum term of twelve years.  He then took into account the appellant's
plea of guilty, for which he considered him entitled to full credit.  However,
the judge limited that full credit reduction for the plea of guilty to only
one-sixth.  In doing so, he must have had in mind the requirement of the
Sentencing Guideline Council's Guidelines for Reduction in Sentence for a Guilty
Plea, paragraph 6.6 of which explains that in a case of murder the minimum
reduction must not exceed one-sixth, and in no case five years.


12.  Having that one-sixth provision of the guidelines in mind, the judge
reduced his figure of twelve years by one-sixth or two years, and ended up at a
figure of ten years.  From that figure of ten years, he deducted the two periods
which we have mentioned, one spent in the mental hospital and the other spent in
custody on remand, to reach a final figure of 63 months.  He therefore imposed
the sentence of imprisonment for public protection with a minimum period before
becoming eligible for release on parole of 63 months.


13.  On this appeal Mr George QC, on the appellant's behalf, first of all raises
as a possible additional ground of appeal, in addition to the grounds of appeal
which are before us today, the fact that the judge may have been in error in
discounting and finding against a sentence disposal under the Mental Health Act.
Mr George has brought to our attention the fact that the appellant is now back
in the secure mental hospital where he had originally spent three-and-a-half
years, as we have described.  Although he does not have a second medical report
to put before us, and he will require to update the medical report which was
before the sentencing judge at the time of sentence, Mr George wishes to have
the chance to consider up-to-date reports and to consider whether, even at this
stage, it is possible to ask for leave to introduce a new ground of appeal to
the effect that the correct order in this case ought to have been a Mental
Health Act disposal.


14.  We are content to allow that opportunity to Mr George.  We make a
representation order in favour of those instructing him so that an up-to-date
report from Dr Galappathie and a new report from a second expert in psychiatry
may be obtained on the question of a Mental Health Act disposal.  We adjourn
this appeal to enable Mr George and those instructing him to get their tackle in
order on that question.  Therefore, despite adjudicating on the present grounds
of appeal today, this appeal will remain live until the purpose for which we
have granted the adjournment is disposed of, either by there being no fresh
ground of appeal proposed, or no fresh ground for which leave can be obtained,
or the final disposal of this appeal on that basis.  It may or may not be that
in due course our adjudication today will be overtaken by a fresh ground of
appeal.


15.  The essential point of the grounds of appeal before us today is that, in
ending up at a minimum period of twelve years before discounting for the plea of
guilty and the time spent in hospital or on remand, the judge had fixed a
starting point that was too high and which made insufficient allowance for the
appellant's diminished responsibility.  To that ground of appeal Mr Watson QC,
who appears on behalf of the Crown, has very helpfully drawn to our attention
(in a manner for which Mr George is no doubt also grateful) the fact that the
judge erred in thinking that he was limited by the Sentencing Guidelines
Council's guideline for maximum discount for pleas of guilty in a case of murder
to one-sixth only.  Mr Watson has drawn to our attention that outside murder, as
we are in this case, in the area of diminished responsibility, albeit
considering a sentence of imprisonment for public protection, the approach to a
discount for pleas of guilty is the same as in any other sentence, even where
dangerous offenders are concerned: see paragraphs 5.1 and 7 of the guidelines to
which we have referred.  Mr George gratefully adopts that submission.  If it is
necessary, we give leave for that fresh ground of appeal, the effect of which
would be to provide a discount from a starting point of twelve years, not of the
two years allowed by the judge, but of four years.


16.  The case of R v Wood [2009] EWCA Crim 651, [2010] 1 Cr App R(S) 2, is the
modern authority which, in the light of Schedule 21 to the Criminal Justice Act
2003, describes how the approach to a sentence of manslaughter by reason of
diminished responsibility should be approached.  Since we are dealing in the
present case with not a determinate sentence for manslaughter, but an
indeterminate sentence of imprisonment for public protection, it is not
necessary to translate the periods prescribed by Schedule 21 for minimum periods
for murder into determinate equivalents (twice as long).  We can deal with
lengths of minimum period throughout.


17.  In effect, the judge adopted the Wood approach.  He asked himself, as
though he was sentencing for murder rather than manslaughter in the first
instance, where in the essential categories of seriousness he would start within
Schedule 21.  He took the agreed starting point of fifteen years.  He then had
to consider both aggravating and mitigating circumstances and then make an
appropriate reduction for the fact that this was a case of manslaughter by
reason of diminished responsibility, and not a case of murder.  He then had to
take account of matters such as the plea of guilty and the periods of remand and
time spent in hospital.  The judge's approach was entirely in accordance with
Wood.  Mr George does not submit otherwise.


18.  Nevertheless, Mr George's essential submission is that the overall
reduction for the three matters which the judge took into account, from a first
starting point of fifteen years to a new starting point of twelve years, made
insufficient allowance for diminished responsibility.  He points out that in
Wood there was a reduction from the minimum term of eighteen years (for
murder)to one of thirteen years (for manslaughter) on the imposition of a
sentence of life imprisonment.  Wood was a case of greater seriousness, at least
in the sense that (albeit also a case of diminished responsibility) in the
judgment of this court the level of Wood's responsibility was "just but only
just sufficiently diminished for the purposes of section 2 of the Homicide Act":
see paragraph 19 of the judgment.  We have also considered in this respect other
recent cases of diminished responsibility such as R v Brown [2011] EWCA Crim
2796, from which it is clear that substantial reductions will be made on the
basis of diminished responsibility.


19.  Nevertheless, and bearing in mind that the judge did not identify the
particular stages by which he moved from fifteen years to twelve years, by
reference to aggravation, mitigation and diminished responsibility in turn, we
are satisfied that an overall reduction to twelve years makes full and
sufficient allowance for the appellant's diminished responsibility.  We accept
that the appellant's responsibility was significantly diminished.  We bear in
mind the judge's comment about drugs and alcohol.  But we also bear very much in
mind the serious aggravating features which makes this an "awful case".  Three
ligatures were prepared.  One was applied.  The act was done following the use
of a knife upon the deceased, whose terror can readily be acknowledged.  All of
that happened in front of her 15 month old child.  We bear in mind, as did the
judge, the mitigating factors of no previous convictions and the appellant's
relative youth at the time of the offence and sentencing.


20.  There has been some uncertainty over the precise age of the appellant.  He
is described in our papers as being now aged 40, which would be inconsistent
with the ages described by the judge in his sentencing remarks.  We have been
assured by Mr George, however, who has seen the appellant, that the age of 40
cannot be correct.  We are content to be guided by the judge's understanding of
the matter.  Indeed, we are content overall to be guided by the judge's
understanding of the matters which were before him.  For the purposes of the
argument that was addressed to him as to whether or not his ultimate sentence
should be a Mental Health Act disposal, the judge had to consider at some length
the voluminous medical reports which were before him.  It would be in the light
of those reports that he could discover for himself the best way of judging the
ultimate disposition at which he had to arrive, taking account of aggravation,
mitigation and diminished responsibility.  Mr George accepts that if the judge,
is allowing for aggravation and mitigation, had taken a fresh starting-point of
eighteen years, (moving up from his original starting-point of 15 years) a
reduction of one-third from that figure to allow for diminished responsibility
would do justice to the case.  That would have produced a figure of 12 years. As
it is, consider that the judge might well have had in mind a figure, after
taking into consideration aggravating and mitigating features but before
allowing for diminished responsibility, in excess of eighteen years.  We
consider, therefore, that there is nothing wrong with the judge's second
starting point of twelve years.  We have already described the reason why,
making full allowance for the plea of guilty, that period then falls to eight
years.  Applying the four-and-three-quarter years spent in hospital and on
remand reduces the minimum period to one of three-and-a-quarter years (or 39
months).


21.  To that extent and that extent only we would potentially allow this appeal,
on the grounds of appeal presently before us, to an ultimate figure of 39 months
minimum period pursuant to a sentence of imprisonment for public protection.  It
follows that in any event, even after that period, the appellant could only
obtain parole if those responsible for that decision were satisfied that it
would be safe to allow the appellant to proceed on parole.  As it is, as we have
described earlier in this judgment, the appellant has been returned to a secure
mental hospital and there remains the possibility (albeit it is only a
possibility at this moment) that in due cause, on the adjourned appeal, this
court will have to consider the ultimate question of whether the sentence of
imprisonment for public protection should remain or should be altered to a
Mental Health Act disposal.  Subject to that adjourned question, our decision on
the grounds of appeal presently before us is for a reduction in the minimum
period to 39 months for the reasons which we have described.


22.  Mr George, we think that we should impose a time limit and, of course, the
reports which you obtain should be served upon the Crown.


MR GEORGE:  My Lord, indeed.  My Lord, obviously the update from Dr Galappathie,
I anticipate, will not take particularly wrong.  It is always more difficult to
identify the correct experts and for them to start afresh.  Could I invite the
court to consider a period of six weeks for the service of that report?  I am
concerned that otherwise it may be an unrealistic timetable.  My instructing
solicitors will have to identify the relevant expert and deliver the papers to
them.  They will have to arrange to see and interview the appellant, prepare the
report and serve it.  I am anxious that although the matter should be dealt with
as expeditiously as possible, that we do not end up with an unrealistic
timetable.


MR JUSTICE GRIFFITH WILLIAMS:  I thought you were going to ask for longer.  If
those who acted for the appellant in the Crown Court have to refer to a doctor
who has not previously reported, that doctor has to read a large volume of
papers.


     (The court conferred)


LORD JUSTICE RIX:  We will give you a period of three months, so as to make it
unnecessary to return.


MR GEORGE:  Thank you very much.


LORD JUSTICE RIX:  I am happy to say, if necessary, that if further directions
are needed, if it is possible to contact me, they should come back to me.


MR GEORGE:  Yes.


LORD JUSTICE RIX:  But I do not want to limit the Criminal Appeal Office in any
unnecessary way.  Hopefully, no further directions will be needed.


MR GEORGE:  Thank you very much.


LORD JUSTICE RIX:  We will give you a representation order and your solicitors a
representation order to obtain those two new reports.  We give you three months
to do that, and we direct you to serve the reports on the prosecution in due
course.


MR GEORGE:  Thank you very much.


LORD JUSTICE RIX:  We ought to know as soon as possible what your decision is --
whether or not you wish to pursue a new ground of appeal.  If you propose to
pursue it, you will need to serve on the Criminal Appeal Office and on the Crown
the new ground of appeal as soon as possible.


MR GEORGE:  Yes.  If we decide that this is a matter we wish to proceed with, we
can serve the amended grounds on the prosecution and on the court and seek leave
then to pursue that ground.  Unless your Lordship wishes to do it any other way,
I am content to do it in that way.


LORD JUSTICE RIX:  Thinking aloud, I think our order can be drawn up, as long as
it makes clear that it is all subject to an adjournment of this appeal, which
has not been finalised, for the purposes indicated in our judgment.


MR GEORGE:  Thank you very much.


LORD JUSTICE RIX:  My Lord suggests that an application to rely on any amended
ground of appeal should be made directly to the full court rather than the
single judge.


MR GEORGE:  I am very grateful.


LORD JUSTICE RIX:  Is there anything else, Mr George?


MR GEORGE:  No, my Lord.  So far as Mr Ahmed's age is concerned, there is
material in the reports and I shall try to find it in advance of the next
hearing.


LORD JUSTICE RIX:  We would be grateful to you.


MR GEORGE:  I am grateful.
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