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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Meenan, R v [2009] EWCA Crim 140 (21 January 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/140.html Cite as: [2009] EWCA Crim 140

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 21st January 2009

1. MR JUSTICE McCOMBE: On 18th April 2008, in the Crown Court at Nottingham before the Recorder of Nottingham, HHJ Stokes QC, this appellant pleaded guilty to four offences: theft, battery, wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences against the Person Act 1861 and aggravated burglary contrary to section 10 of the Theft Act 1968. For the offences of theft and battery he was sentenced to terms of imprisonment of 18 months and four months respectively, to be served concurrently, and for the offences of wounding with intent and aggravated burglary he was sentenced to terms of Imprisonment for Public Protection with a minimum custodial term of seven and-a-half years, with 238 days spent in custody on remand to count towards that minimum term. He now appeals against sentence by leave of the Single Judge.
2. The facts of the case were as follows. The offences reflected two attacks by the appellant on women committed in the Derby area in the early hours of 28th October 2007 and one burglary, with intent to commit a further attack, in the early hours of the morning of that same day.
3. The first two offences, the theft and battery, were committed in Derby city centre. A young woman was looking to find her way to Nottingham, having become separated from her companions with whom she had spent the evening. She was uncertain where to find a bus to take her home. She was on the telephone to a friend and the appellant offered to help her. He took the phone from her, saying he could explain to the friend where she was and how she could get home. The appellant then indicated to the victim that she should walk down a nearby path, but she responded that that way could not possibly be correct. The appellant then punched her hard to the face, knocking her to the ground, and ran off with the telephone. Those were the first two offences.
4. Within the hour, the appellant had made his way to the Heanor area of Derby. He tried to gain entry to one property by pretending he wanted the householder to move a car that was impeding access to a lorry. She refused him admittance. He moved on. Two young girls had left another property in Loscoe Road in the same area to go to a telephone kiosk. The appellant saw them and spoke to them. He said that he had just "slashed someone" and had killed two people that night. Not surprisingly, the two girls started to make their way back from where they had come but the appellant followed them. They altered direction and tried to get to a friend's house to summon assistance. After a while, the appellant stopped following them and went towards the house that the girls had originally left, where they had not properly secured the door. The appellant entered the property. The girls realised that this had happened and went to another friend's home nearby to call the police.
5. In the first property was a Mrs Foyle, who was trying to sleep on the sofa in the living room. She became aware of an intruder in the house. She heard movement in the area between the kitchen and her living room. She was beginning to get up from the sofa to turn on the light when the appellant rushed up to her and attacked her. He had acquired a knife from her kitchen and started to stab her about the face and upper body in a frenzied fashion. Her husband, who was asleep upstairs, was alerted by her screams and came down to assist. The appellant made off. Mrs Foyle was taken to hospital, where she was treated for stab wounds to her head, her left breast, her shoulder and left forearm. She suffered one fully severed tendon, one partially severed tendon and a severed nerve. The injuries inflicted were to take a considerable time to heal.
6. The appellant then made his way to another property in the same road. Again, he gained access by an insecure front door. By this time it was between 1.00 and 1.30 in the morning. One of the occupants, a light sleeper, heard the appellant moving about the house. He got up to investigate and could hear muffled sounds and smelt beer on the landing.
7. In response to the earlier call, following the incident at Mrs Foyle's home, the police had arrived in the area and were able to react quickly to a call from this second house. Officers went upstairs and found the appellant hiding under a bed in the spare bedroom. He was still holding the knife that he had taken during the earlier incident. He was arrested and was violent and aggressive to the police throughout. It was accepted by the plea of guilty to aggravated burglary that he had entered the property with the intent of harming another woman.
8. The appellant is 24 years old. He had a number of previous convictions, including for offences of less serious violence than are reflected by the attack upon Mrs Foyle. There were a number of reports before the court, including three psychiatric reports. From these it was clear that he was suffering from a mental illness. Indeed, the first two reports indicated he was at one stage unfit to plead. It seemed that he had suffered from his symptoms for nearly ten years. At the centre of the illness was the hearing of voices, partly those of a character from a film urging him to commit acts of violence. He was diagnosed as suffering from schizophrenia and acute psychotic symptoms. In the final addendum report, it was stated that he continued to suffer from significant symptoms of mental illness but that his condition had improved with medication. However, he had declined to engage in other treatment and had expressed a determination to return to prison from the hospital where he had been treated. His illness was said to be treatable but his resistance to psychiatric intervention meant that hospital treatment was currently impracticable. All the material indicated that he presented a high risk of causing serious harm to members of the public.
9. In passing sentence, the judge stated that the appellant posed an exceptionally dangerous threat to the public and to women in particular. His conduct had been described by the principal victim as like something out of a horror film. The judge summarised the offences that we have already described. He noted the appellant's refusal to co-operate with medical treatment. He said that he had considered imposing a life sentence but had refrained from doing so in the light of the judgment of this court in R v Kehoe [2008] EWCA Crim 819. In accordance with earlier decisions of this court, the judge said that in fixing the minimum term he did so by specifying one half of the determinate sentences that he would have imposed in total for all these offences. He stated expressly that he took into account the pleas of guilty and the appellant's mental illness.
10. On the present appeal, there is no argument raised against the principle of the imposition of a sentence of Imprisonment for Public Protection. It is simply argued that the minimum term so fixed was excessive. It is said that, had the judge not been imposing an indeterminate term, the minimum term fixed implied that the judge would have imposed a total term of some 22 and a half years' imprisonment if he had been imposing a determinate sentence after a contested trial. The short point is that a term of that length in those circumstances would have been excessive.
11. In support of those submissions, Mr Hurst, in short and helpful submissions for the assistance of this court, has referred us to various materials, including the Sentencing Guidelines Council's guidance on offences of assault, and in particular those of causing grievous bodily harm with intent. We have been referred to the table that appears at paragraph K-125 of the 2009 first supplement to Archbold. Mr Hurst also referred us to three authorities by reference to the summaris in Current Sentencing Practice. These were Attorney General's Reference No 18 of 2002 (Christopher Simon Hughes) [2003] 1 Cr.App.R(S) 9 and Attorney General's Reference No 8 of 2007 (Melissa Walker) [2008] 2 Cr.App.R(S) (the page reference is omitted from the Encyclopaedia). Those were cases dealing with stabbings leading to charges of offences under section 18 of the 1861 Act in which the then Vice President, Sir Christopher Rose and Maurice Kay LJ respectively indicated that sentences in a range of some three to nine years were appropriate for offences contrary to section 18. We were further referred to the more recent decision in Attorney General's Reference Nos 103, 101, 102 of 2005 (Kevin Pethick) [2006] 2 Cr.App.R(S), again, the page reference is omitted from the Encyclopaedia, in which sentences of the same range were indicated for offences of aggravated burglary. Mr Hurst points out that in the present case, the offence of aggravated burglary involved no violence or actual attack or injury and proceeded on the basis of an intent reflected by the appellant's conduct earlier in the evening. Mr Hurst realistically accepts that for a series of offences, including the earlier offences, the appellant could not expect to be sentenced on the basis of a notional determinate based simply on the commission of one offence. However, he submits it would be quite wrong to add the notional sentences for the two cases together and work on that basis, since the court has to act on the basis of totality.
12. We agree that the notional determinate term contemplated by the learned judge was in fact too high. These were very bad offences. The offence in count 4 committed on Mrs Foyle was truly horrific. They were committed by a dangerous offender. However, the element of public protection is achieved in this case by the imposition of the indeterminate sentence and the intervention of the Parole Board before release that that implies. We consider that, working on the hypothesis of determinate terms, if that had been appropriate for the totality of these offences, following a contested trial, a total term of something in region of 15 years would have been of the length required. On a plea of guilty, the relevant term would have been ten years and on this basis the minimum custodial term would be one of five years reflecting the stage of sentence at which an offender is eligible for release on licence.
13. In reaching this conclusion, we would emphasise firmly three points. First, the present appellant is someone who ought to be detained in a secure mental hospital rather than a prison. Prison conditions are not geared to holding or treating a person with the mental condition such as this appellant was assessed to have. However, in the light of the appellant's attitude to treatment, it was not open to the judge or to this court to deal with this case by any form of medical disposal. However, the position of the Secretary of State may be different. It may be open to her to determine that confinement in such a hospital is still appropriate and possible. That, however, is a matter for the Secretary of State and not for this court. Secondly, it must be stressed that the sentence imposed was an indeterminate one. The minimum custodial term that the court specifies is just that, a minimum term. The appellant was rightly classed as a dangerous offender and he will not be released from that sentence unless the Parole Board determines that he no longer poses a danger to the community at large. By virtue of the judge's order and the order that we shall make, he will not be eligible to ask the Parole Board to consider his case for release until the minimum custodial term is expired. After that time it should not be thought to be any sort of foregone conclusion that he will be released from custody. That will be a matter for the board to assess at the appropriate time. Finally, while the court had to fix a minimum custodial term it had to do so on the artificial hypothesis that the appellant was not dangerous. It had to decide what would be the appropriate determinate sentence in a case where the dangerous offender provisions of the 2003 Act did not apply. On that artificial hypothesis, the fact that the appellant was in fact suffering from a mental illness would have had to be regarded as some mitigation of the offence, as the judge recognised in passing sentence and as we have done in considering this appeal.
14. In the circumstances, we do allow the appeal and substitute a minimum custodial term of five years, taking account of the pleas of guilty, in place of the seven and a half years specified in the Crown Court. The days spent in custody on remand will count towards sentence as before.