R v Ahmed  EWCA Crim 708,  MHLO 40
The appellant was found unfit to plead, spent 35 years subject to s37/41, pleaded guilty to diminished responsibility manslaughter, was given an IPP sentence with a 63-month tariff, and was transferred back to hospital under s47/49. (1) The appropriate minimum term was 39 months. (2) The appeal was adjourned to obtain medical evidence and for future consideration of whether a hospital order ought to have been imposed.
Neutral Citation Number:  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©
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 ,  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  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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