R v G (A)  EWCA Crim 2256,  MHLO 130
Unsuccessful appeal against restriction order. [Summary required.]
Neutral Citation Number:  EWCA Crim 2256 No: 201303654 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 22nd November 2013 B e f o r e: LORD JUSTICE ELIAS MR JUSTICE HOLROYDE MR JUSTICE SUPPERSTONE R E G I N A v "AG" Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) Miss R Smith appeared on behalf of the Applicant J U D G M E N T (Approved) Crown copyright©
1. MR JUSTICE SUPPERSTONE: The applicant, who is 48 years of age, had a major brain haemorrhage in September 2010 which left him with an acquired brain injury. On 1st May 2013 in the Crown Court at Cardiff, it having been determined that the applicant was unfit to stand trial, he was found to have committed six acts of rape. The jury was unable to reach a verdict in relation to ten other counts of rape and two of indecent assault, which were ordered to remain on the file.
2. On 19th June 2013 the applicant was sentenced by His Honour Judge Richards. The judge made a hospital order under section 37 of the Mental Health Act 1983, coupled with a restriction order under section 41 of the Act without limitation of time. The usual ancillary orders were also made.
3. The applicant now renews his application for leave to appeal against the restriction order after refusal by the single judge. Miss Ruth Smith, who appears for the applicant, accepts that the sentence of a hospital order was appropriate in his case.
4. The factual background to these offences can be stated shortly. The complainant on all counts was the applicant's daughter, "RG", born on 16th August 1989. The applicant had nine other children. He and RG's mother separated when she was very young and they both began living with new partners. RG had no contact with her father until she was six or seven years old. She then began staying with him at weekends and on occasions during the school holidays when her mother was working away from home. She alleged that the abuse began when she was seven years old, shortly after she began staying at his home. When she was 13 she moved in with him. She alleged that her father then raped and abused her on a regular basis and she became pregnant by him. That abuse continued until January 2011, when she moved out.
5. By their verdicts the jury were not satisfied that there was any offending before RG turned 15, but they were satisfied that the applicant raped her on at least six occasions between 16th August 2004 and 15th August 2010, when she was aged between 15 and 21.
6. In August 2011 RG told the solicitor who was representing her in family proceedings in connection with her two children, born in 2008 and 2010, about these matters. A DNA test revealed that the applicant was the father of one of the children.
7. RG's evidence was that the abuse mainly occurred before her father suffered a brain haemorrhage on 28th September 2010, but that the last time he raped her was in January 2011. The applicant's account was that he did not commit these offences or that he could not remember doing so.
8. Two psychiatrists, Dr Huckle and Dr Clarke, prepared reports dated 28th February 2013 and 26th March 2013 respectively. They were in agreement that the applicant was not fit to plead and stand trial. They each prepared an addendum psychiatric report in order to assist the court in relation to disposal of the case. They both recommended that the applicant be made subject to a hospital order. Dr Huckle in his report did not address the issue of whether a restriction order should be made. Dr Clarke expressed the view that due to the historical nature of the applicant's convictions and "his significant changing functioning following his brain injury", she did not believe that the imposition of a restriction order would be necessary to protect the public. However, she added that that being said, she would recommend that once the applicant's depression is treated, and whilst still in hospital, an assessment of his future risks of offending is carried out.
9. At the sentencing hearing the judge heard oral evidence from the two psychiatrists. In his sentencing remarks the judge noted that on balance Dr Clarke's evidence was that a restriction order is not necessary in this case "because this was a specific victim. It is historic. It is therefore a risk which is not general to women at large". Dr Huckle, the judge noted, did not wholly agree with Dr Clarke in her assessment. Dr Huckle was influenced by the fact that an allegation was made, albeit not proven to the satisfaction of the jury, of further abuse towards the victim in this case after the applicant suffered his brain haemorrhage.
10. Having heard the evidence of Dr Huckle and Dr Clarke, the judge concluded that a restriction order without limitation of time is necessary for the protection of the public from serious harm by the applicant. In reaching this conclusion the judge had regard to a number of factors. First, the prolific nature of this particular offender's association with females: he is the father of ten children by five different partners and has had two further sexual partners during the material time. Only the complainant has alleged rape against him, but his abuse of her took place over a significant number of years. The judge described it as an "abuse which was horrific, directed at a young woman to whom he owed protection and quite in breach of the trust which is reposed in him as a father". Second, the damage to the applicant's brain almost certainly affects a number of his faculties, including his sex drive, but the extent to which that is the case is challenged by RG's evidence that she was raped in January 2011, in respect of which the jury was simply not able to reach a decision either way. Third, the judge was influenced by the evidence he heard from Dr Huckle that the applicant is a person who is given to the use of drugs. The judge considered that to be an additional factor which in his view may bear upon the risks which he presents to the general public. Fourth, the judge had regard to the oral evidence of Dr Huckle that he cannot guarantee there would not be further attacks made on members of the public by the applicant.
11. Miss Smith, in her clear and attractively presented oral and written submissions, submitted that the judge erred in his conclusion that the applicant posed a risk of serious harm to the public, essentially for three reasons: first, the judge failed to give adequate weight to the medical evidence that, as a result of the brain injury the applicant sustained, his sex drive had been diminished, he was unable to live independently and was a "changed man"; second, that the judge failed to give adequate consideration to Dr Clarke's opinion that the risk posed by the applicant had been historical risk to a specific victim and that she did not believe that the imposition of a restriction order was necessary to protect the public; third, the judge placed undue weight on the allegation by RG that the applicant had raped her after his brain haemorrhage, despite the fact that the jury were unable to make a finding against the applicant that he did indeed carry out this act.
12. Miss Smith referred us to the decision of R v Birch  90 Cr App R 78, where Mustill LJ, giving the judgment of the court, considered the principles to be applied against the statutory background of the Mental Health Act 1959 (the predecessor to the 1983 Act, there being no change in the material provisions).
13. In our judgment, the judge gave careful consideration to the material factors that he had to take into account in exercising his discretion whether or not to make a restriction order. He had proper regard to the expert evidence, and in our view was plainly entitled to reach the conclusion that he did.
14. In Birch, Mustill LJ observed at page 90 that "this was a very serious offence and a low risk of repetition would justify a restriction order". The offences committed in the present case were plainly very serious. The proven acts only ended a comparatively short time ago.
15. We agree with the observation of the single judge refusing leave, that bearing in mind the inability of the jury to reach a unanimous view on whether the applicant raped RG after he had suffered his brain haemorrhage, there has to have been at least a chance that he did. That fact, coupled with the other factors which the judge identified, meant that his conclusion that the applicant continues to pose a risk of serious harm to women in general was one which it was plainly open to him to reach. We note from Dr Clarke's addendum psychiatric report at paragraph 14 that when asked about any potential future risk of sexual offending, the applicant replied, "I don't know".
application for leave to appeal must be refused.
16. For the reasons we have given, in our judgment, it is not arguable that the judge erred in making the restriction order. It follows that this renewed
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