R v Stead  EWCA Crim 92,  MHLO 9
The appellant, who had been sentenced to ten years' detention in a young offender institution together with an indefinite Sexual Offences Prevention Order, successfully argued for the imposition of a hybrid order under MHA 1983 s45A.
Transcript (Crown Copyright)
Neutral Citation Number:  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©
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 !, 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.
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