R v Matthews [2010] EWCA Crim 1936

The trial judge had wanted to impose a hospital order under s37 and restriction order under s41 but could not as no hospital bed was available, despite several adjournments; given the risk to the public, the judge had no alternative but to pass a sentence of imprisonment for public protection. The extension of time sought exceeded two years nine months. There was no merit in the application and accordingly the application for leave and the application to extend permission to apply out of time were refused.

Transcript

Neutral Citation Number: [2010] EWCA Crim 1936Not on Bailii!

No: 201002371 A4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2A 2LL

Thursday, 29th July 2010
B e f o r e:

LORD JUSTICE LAWS

MR JUSTICE TREACY

HONORARY RECORDER OF MANCHESTER

HIS HONOUR JUDGE ANDREW GILBART QC

(Sitting as a judge of the Court of Appeal Criminal Division)


R E G I N A


v


GARY LEE MATTHEWS


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J U D G M E N T

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1. RECORDER OF MANCHESTER: On 7th December 2006, in the Crown Court at Guildford before His Honour Judge Crocker, the applicant pleaded guilty to robbery. On 22nd June 2007, before the same judge, he was sentenced to imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of three years less 205 days spent on remand. He now renews his application for an extension of time for leave to appeal against sentence and for a representation order following refusal by the single judge. The extension of time exceeds two years and nine months.

2. On the evening of 28th November 2006, Mr Mark Cook was walking alone on a footpath by the A3 in Guildford. The applicant approached him and shouted, "Give me your money, give me your fucking money". He grabbed Mr Cook in the chest area. He was holding a knife in his right hand, which he pointed directly at Mr Cook. Mr Cook gave the applicant his wallet, which contained cash, personal cards and papers. The applicant shouted after him as the two of them walked away afterwards, "Don't go telling anyone".

3. Mr Cook, who described himself as petrified, telephoned the police. He sought help in a local public house. When there he realised he had been cut with the knife to one of his fingers. He was given first aid. Fortunately, the injury could be repaired swiftly at hospital.

4. The police attended and found the applicant nearby, still holding the knife. He admitted straight away that he was responsible for the robbery. He described in interview that he had become homeless and that he had gone to the police station to hand in a knife on the basis that he was in possession of an offensive weapon - in other words to get himself arrested. When it came into his mind to carry out a robbery he saw a man and robbed him. He was sorry for his actions and had not intended to hurt his victim, he said. He had not run away from the police because he wanted a roof over his head.

5. 42 years old at the time, the applicant had appeared before the courts on 16 previous occasions for 38 offences between 1980 and 2006. It is right to refer to four of them. In 1987, when he was 19, he was convicted of robbery and of carrying a firearm with intent to commit an indictable offence and sentenced to a six year custodial sentence. That related to the robbery of a taxi driver with a firearm. He had been deliberately called out to a deserted location. In 1993 he received another five year custodial sentence for robbery, which related to the holding up of an off licence with a plastic replica gun. In 1999 he was sent to prison for assault with intent to resist arrest and intimidating a witness or juror. In 2001 he was sent to prison for assault occasioning actual bodily harm, and in 2002 he was sentenced to three and a half years' imprisonment for three indecent assaults on a female under 16.

6. The court had before it a number of psychiatric reports. The first said that he had a dissocial personality disorder, and behavioural disorders due to multiple drug use and other psycho‑active substances. The second, from Dr Andrews, referred to what was called a depraved childhood and diagnosed a dissocial personality disorder. He considered that his illicit substance misuse increased his potential for violence and that it was likely that he would harm others physically. He thought he was a dangerous person and asked for a disposal under section 37 of the Mental Health Act 1983. He thought that therapy, rehabilitation and supervision would have a better chance of reducing the prospects of re‑offending.

7. Dr Lawrence considered that the applicant exhibited a dissocial personality disorder, which was a psychopathic disorder for the purposes of the Mental Health Act 1983 and resulted in aggressive or seriously irresponsible conduct. Dr Lawrence considered that it was highly likely that the applicant would commit similar offences to the index offence again if he found himself in similar circumstances. He recommended an order under section 37 of the Mental Health Act with a section 41 restriction on release, but of course for such an order to be made a hospital bed had to be found.

8. It appears from the papers that repeated attempts were made to find a bed for the purposes of making an order under sections 37 and 41 of the Mental Health Act 1983. There were six further hearings after the guilty plea, on the last of which he was sentenced. The judge had striven to be able to make a section 37 order with a section 41 restriction if a bed could be found, but it was reported to the court, after a further adjournment on 15th May 2007, that no further bed was available.

9. The judge, in passing sentence, said that he considered that the applicant posed a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. Given the material which was before the court, that was an entirely appropriate sentence to pass in our judgment. One of the most intractable problems which a Crown Court judge has to tackle is how to deal with an offender who needs hospital treatment, but for whom no bed is available despite every effort being made to find one. The judge had to approach this, as we do, on the basis that no bed was available. Given that, in our judgment, he had no alternative whatever to pass the sentence of imprisonment for public protection.

10. This application is made very late indeed for leave to appeal out of time. We consider that there is no merit in the application and accordingly we refuse the application for leave and the application to extend permission to apply out of time.

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