View source for Transcript of R v Stead (2012) EWCA Crim 92, (2012) MHLO 9

<div class="perm">
<pre>Neutral Citation Number: [2012] EWCA Crim 92


No: 201102934/A1


IN THE COURT OF APPEAL


CRIMINAL DIVISION



                                                         Royal Courts of Justice




                                                                          Strand




                                                                London, WC2A 2LL




                                                       Thursday, 19 January 2012




                                  B e f o r e:




                               LORD JUSTICE PILL




                                MR JUSTICE IRWIN









                           MR JUSTICE KENNETH PARKER














                                  R E G I N A




                                       v




                          CRAIG MALDWYN ANTHONY STEAD














              Computer Aided Transcript of the Stenograph Notes of




                         WordWave International Limited




                        A Merrill Communications Company




                       165 Fleet Street  London EC4A 2DY




                  Tel No: 020 7404 1400 Fax No: 020 7404 1424




                   (Official Shorthand Writers to the Court)



Miss J Treharne appeared on behalf of the Appellant



                                J U D G M E N T




                           (As approved by the Court)




                                Crown copyright©
</pre>


1.     LORD JUSTICE PILL:  On 8 March 2011 at the Crown Court in Cardiff before
Mr Recorder Murphy CC, the appellant pleaded guilty to a charge of perverting
the course of justice (count 3).  On 11 March he was convicted of sexual assault
(count 1) and of rape (count 2).  For the sexual assault he was sentenced to 18
months' detention in a young offender institution, for rape ten years' detention
in a young offender institution and for perverting the course of justice 18
months' detention in a young offender institution, all sentences to run
concurrently so that the total sentence is one of ten years' detention in a
young offender institution.  A Sexual Offences Prevention Order was made under
section 104 of the Sexual Offences Act 2003 and ordered to be of indefinite
duration.


2.     The victim was 15 years old.  He spent 18 September 2010 with friends in
the Cardiff city centre.  He drank too much and became very drunk.  Making his
way home, he felt the need to sit down and he did so near the entrance to a
brightly lit subway in the city centre.


3.     The appellant, who was dressed as security guard, approached him and
spoke to him first in a friendly way, but then, with the apparent authority of a
security guard, warned him that his behaviour in such a public place was
unacceptable.  He said he was going to remove the victim and if he did not
co‑operate he would have to arrest him.


4.     The appellant led the victim to a dark wooded area nearby.  The victim
was sick.  The victim's trousers were opened and oral sex was performed on him
by the appellant.  The appellant ignored the requests to stop.  The appellant
then told him he was going to have anal sex with him and was going to ejaculate.
The appellant vigorously pulled off the two pairs of trousers which the victim
was wearing, turned the victim on to his side and raped him anally.  He then
walked away, leaving the victim naked from the waist down and covered in his own
faeces.


5.     The appellant then approached two police men in uniform, told them he was
a security guard and had seen a young man clearly in distress lying by a tree in
a wooded area.  The police officers found him and he told them that he had been
anally raped.


6.     The appellant also went to the police station where he gave a false name
and address and made a formal statement.  He did give the police his correct
mobile telephone number and in due course he was contacted by the police and
arrested.  When interviewed he admitted the sexual encounter, but claimed that
the victim had consented to all the activities.


7.     Before the Recorder Miss Treharne, who appeared for the appellant as she
does today, submitted that the appropriate order was an order under section 37
of the Mental Health Act 1983.  Miss Treharne relied on four medical reports,
including a report from Dr Clarke dated 11 April 2011.  Dr Clarke is a
consultant forensic psychiatrist recognised under section 12 of the 1983 Act and
is based at Glanrhyd hospital in Bridgend.


8.     In her opinion the appellant fulfils the criteria for an autistic
spectrum disorder.  His presentation was in keeping with a diagnosis of
Asperger's Syndrome as classified in the European and American systems as a
mental disorder within the terms of the 1983 Act.  Dr Clarke recommended that
the court should consider the imposition of a section 37 order:


"... with a view to [the appellant] being placed in low secure hospital
setting."


9.     She added that the appellant:


"... will need significant support and ongoing monitoring within a community
setting."


10.     She told the court that he had been assessed and accepted for placement
at St Luke's hospital Ebbw Vale under the care of Dr Kareem, a consultant
psychiatrist, and that a bed would be available.


11.     The judge had a difficult sentencing exercise having regard to the
medical evidence and to the very serious and bizarre nature of the offence
committed.  He stated that there remained open to him that there could be a
sentence of imprisonment even if the section 37(2) conditions were satisfied.
He stated:


"Whilst the welfare of the offender is an important matter to be taken into
consideration, it must be assessed in the light of the seriousness of the
offence."


12.     The Recorder added:


"In my judgment a hospital order would not address properly the risk that you
present to the public, nor properly reflect your culpability and the seriousness
of your offence."


13.     He acknowledged the power to make a restriction order under section 41
of the 1983 Act, but stated:


"But the plan was in this low secure unit for you to have some public
activities."


14.     The judge referred to the index offence and also to an earlier serious
offence of arson which is a specified offence.


15.     He stated:


"... this is the second serious specified offence of which you have been
convicted at the young age of 18 years.  And it is my duty to consider the
question of dangerousness and whether you do present a high risk of
reconviction, carrying with it a high risk of serious harm to the public."


16.     The judge did not make a finding of dangerousness but concluded that the
appropriate term was a determinate term of ten years' detention.


17.     The Recorder was not referred to section 45A of the 1983 Act.  It may be
that if he had been a different course would have been followed, though that is
conjecture.


18.     It appears that he was influenced by the references by Dr Clarke to
"care within a community setting" and to the low security which he believed
existed at the proposed placement.


19.     We add that there was a pre‑sentence report.  It did not make
recommendations but expressed the opinion that there was a very high risk of the
appellant reoffending and of him causing serious harm to the public.


20.     On behalf of the appellant Miss Treharne submits that the appropriate
order would have been, and is, an order under section 45A of the 1983 Act.  That
permits the custodial sentence to be maintained.


21.     Miss Treharne relies on a very detailed joint medical report from Dr
Oladimeji Kareem and Dr Anshul Bhatt.  Both are approved under section 12(2) of
the 1983 Act: Dr Kareem is a consultant psychiatrist and Dr Bhatt is an
associate specialist psychiatrist.


22.     On 3 June 2011 the appellant was transferred to St Luke's Hospital in
Ebbw Vale and has been a patient there since.


23.     In the comprehensive report the doctors set out in some detail the
appellant's conduct as recorded in the records during each of the five months
that he has spent at the hospital up to the date of the report, which is 29
November 2011.


24.     Dr Kareem has given oral evidence confirming his medical report.


25.     Reliance is also placed by Miss Treharne, if necessary, on the report of
Dr Clarke and the opinion expressed in it.


26.     Dr Kareem found that the appellant suffers from a Pervasive Development
Disorder, Asperger's Syndrome.  He confirms that it is a mental illness and
describes it as a life‑long condition.  Its symptoms are set out.


27.     It is stated at paragraph 22.7:


"Mr Stead's Autistic Spectrum Disorder is currently of a nature and degree that
warrants his detention in a low‑secure hospital with specialist expertise in
managing people with the diagnosis of ASD.  His mental state has fluctuated
since being on Beech ward and he continues to pose significant risk to himself
as well as to others.


22.8.  Given [his] offending history, it in the interests of his health and
safety and the protection of others that he should be detained in hospital under
the Mental Health Act 1983 (as amended in 2007), without any predetermined time
limit."


28.     In his oral evidence Dr Kareem told the court that the treatment plan
proposed for the appellant will improve his condition in the future.  While the
condition is life‑long, there are medical ways to deal with it and to help
patients in their functioning and conduct.  The support which he receives will
improve his insight.


29.     Dr Kareem accepts that some psychiatric care is possible in prison
conditions, but it would be difficult to provide in prison conditions the
treatment which is proposed at Ebbw Vale.


30.     As to security at Ebbw Vale, he accepts it is a low security hospital,
but told the court that there is a perimeter fence and protection is up to
safety standards as required by the authorities.


31.     The consent of the Secretary of State for Justice is required if it is
proposed that for any reason the appellant should leave the hospital, whether
for other treatment or otherwise.  Health is a devolved matter, but Dr Kareem
tells us, and we accept, that the Secretary of State for Justice's consent is
required when restrictions such as the court may impose under section 41 or
section 45A are involved.


32.     In our judgment the requirements for making an order under the 1983 Act
are satisfied.  We understand and respect the Recorder's approach by which a
custodial sentence should be imposed.  Section 45A deals with a situation such
as the present, as we view it.


33.     There is a requirement that the court considers making a hospital order
in respect of an appellant or defendant before deciding to impose a sentence of
imprisonment as the relevant sentence in respect of the offence.  There is then,
in effect, a reference back to section 37(2) and the requirements which need to
be satisfied before a section 37 order can be made.


34.     We have the opinions of at least two medical practitioners and one of
them has been expressed orally to the court.  We accept that the appellant is
suffering from a mental disorder.  We accept that it is appropriate for him to
be detained in a hospital for medical treatment.  We accept that appropriate
medical treatment is available for him at the Ebbw Vale hospital.


35.     We have come to the conclusion that an order under section 45A of the
1983 Act is the most suitable method of disposing of the case.  We also take the
view that a limitation direction is required under section 45A(3).  Section
45A(3):


"The court may give both of the following directions, namely ‑‑


(a) a direction that, instead of being removed to and detained in a prison, the
offender be removed to and detained in such hospital as may be specified in the
direction (in this Act referred to as a 'hospital direction'); and


(b) a direction that the offender be subject to the special restrictions set
out in section 41 above (in this Act referred to as a 'limitation direction')."


36.     Accordingly, we direct that the custodial sentence stands, but we direct
that the appellant be detained at St Luke's hospital, Ebbw Vale in Gwent as
above.  We are satisfied that a place is available for him at that hospital,
having been told by Dr Kareem that it is.


37.     We turn to the Sexual Offences Prevention Order.  We propose to make
modest amendments to the order made by the judge.  We make them in the light of
the decision of this court in Steven Smith and others [2011] EWCA Crim 1772,
Hughes LJ VP presiding.


38.     Following the approach of the court at paragraph 33 of that judgment, we
substitute for the present subparagraph (c) of the order an order prohibiting
the appellant from:


"Having any unsupervised contact of any kind with any child or young person
under the age of 17 other than:


(i) such as is inadvertent and not reasonably avoidable in the course of lawful
daily life, or.


(ii) with the consent of the child's parent or guardian who has knowledge of
his convictions."


39.     We amend paragraph (b) of the Recorder's order, which reads "seeking any
employment which requires the wearing of an uniform without prior permission of
police in the force area where the employment would be" by the addition before
the words "a uniform" of the word "such".


40.     Those amendments are ordered, in our judgment having regard to the
serious offence committed and the way in which it was committed.  The order
correctly prohibited the appellant from owning or wearing any article of
clothing in public which would have the appearance of being an emergency
services uniform and/or security guard clothing.


41.     Thus, in addition to those amendments to the Sexual Offences Prevention
Order, the custodial sentence stands, but there be will be added to it the order
we have described under section 45A of the 1983 Act.  To that extent this appeal
against sentence is allowed.
</div>