R v Clark [2011] EWCA Crim 2516

The defendant appealed against a sentence of 56 months' imprisonment for GBH (financial worries had led him to decide to kill his wife and himself). The sentencing guidelines could never have been intended to apply to such an exceptional case; the sentence was replaced with a community rehabilitation order with a mental health treatment requirement.

Transcript

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Neutral Citation Number: [2011] EWCA Crim 2516


No: 201103973 A7


IN THE COURT OF APPEAL


CRIMINAL DIVISION






                                                         Royal Courts of Justice




                                                                          Strand




                                                                London, WC2A 2LL







                                                     Thursday, 20th October 2011









                                  B e f o r e:




                          LORD JUSTICE STANLEY BURNTON




                               MR JUSTICE SPENCER









                             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




                           KENNETH JOHN MAXWELL CLARK














              Computer Aided Transcript of the Stenograph Notes of




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Mr G Walters appeared on behalf of the Appellant



                                    Judgment




                            As Approved by the Court




                                Crown copyright©



1.     LORD JUSTICE STANLEY BURNTON:  On 4th March 2011, at Swansea Crown Court,
the appellant, a man of impeccable good character aged 77, pleaded guilty to
causing grievous bodily harm with intent.  On 10th June 2011 he was sentenced by
His Honour Judge Davies QC to 56 months' imprisonment, with a direction that
time served on remand should count towards sentence.  The Crown offered no
evidence on a count of attempted murder and a verdict of not guilty was entered.
He appeals against that sentence by leave of the single judge.


2.     The facts, in summary, were as follows.  The appellant and his wife, Mrs
Winifred Clark, had been married for almost 54 years at the time of the offence.
There had never been any suggestion of violence during their marriage and they
had two children and three grandchildren.  In the early 1980s the couple lost a
substantial sum of money in a business venture which was to be their "nest egg",
and following that the appellant had had his own packaging business.  He retired
from work at the age of 73 and the couple moved to a bungalow in Lampeter.  By
that stage Mrs Clark was having problems with her heart and mobility.  The
appellant had a debt of around £17,000.  His wife knew there was some financial
problems but did not know the details.  The appellant kept the existence of that
debt and its amount from her as he believed it was his role to be responsible
for such matters, but clearly the existence of the debt preyed very largely on
his mind.


3.     On Monday morning, 1st November 2010, he got up before his wife, and
while in the kitchen began to think about the money he owed.  He was concerned
that he and his wife would lose their home, which they loved very much.  He
later told police in interview that he decided the only way out was for him and
his wife to die.  He picked up a rolling pin from the kitchen.  His idea was to
knock his wife unconscious and then smother her and he would then take his own
life.  He went to the bedroom and struck his wife over the head with the rolling
pin over the head as she lay asleep. He struck her at least twice, but she woke
up and in her confused and frightened state called on him for help.  He could
not go on with his plan.  He called for an ambulance.  While on the phone a
deeply emotional conversation between him and his wife could be heard with
reference to "ending it all" and the problems afflicting his mind.  The
appellant also called his daughter, apologising for what he had done.


4.     Paramedics arrived and found the couple in the bedroom.  Mrs Clark had
injuries to her head and right hand.  She asked for the police, but as she was
being taken to the ambulance she told her husband that everything would be all
right and that she loved him.  On the way to the hospital she appeared to be
more concerned for her husband and told the paramedics that he had never been
violent and that he was a lovely man.  She was treated for two lacerations to
the forehead, which required eight stitches, bruising and swelling to her face,
a fractured cheekbone and a fracture to one of her fingers.  She spent two
nights in hospital.


5.     In interview the appellant made frank admissions.


6.     In a victim personal statement dated 2nd June 2011 Mrs Clark said that
immediately after the incident she was in a lot of pain but her injuries had
fully healed.  Her marriage had been a happy one and she still loved her
husband.  She visited him regularly while he was in custody.  Mrs Clark believed
the worry about finances had sparked the attack, but the financial problems had
since been resolved.  She had forgiven the appellant and wanted him home.  The
eight months he had already spent in custody were punishment enough.


7.     The appellant, as we have said, was a man of good, indeed impeccable,
character.  By the date of his appearance in the Crown Court his financial
situation which had led to this very serious offence had been resolved as a
result of the intervention of his son.  It had been removed as a trigger for
offending.


8.     The judge had before him two comprehensive psychiatric reports from Dr
Sian Koppel of the Caswell Clinic and a report from Dr Helen Payne dated 3rd
January 2011, in which Dr Payne concluded:


i.     "Currently the likelihood of Mr Clark committing a similar act of
violence out of the blue is uncertain.  Mr Clark himself states vehemently that
he would never act in such a manner again.  However, I feel that the
uncharacteristically violent act of 1st November 2010 is likely to have been
committed while the balance of his mind was affected by post‑epileptic activity.
As such I feel that Mr Clark requires hospital in‑patient assessment of his
epileptic activity to ensure accurate understanding, diagnosis and treatment of
his condition.  I consider that he would be best seen by a Consultant
Neurologist with specialist experience of epilepsy, for example in Morriston
Hospital, Swansea.  Should this be satisfactorily achieved I would see no reason
for Mr Clark not to be able to live safely in the community.  I would note that
Mr Clark would require a more frequent and rigorous ongoing monitoring of his
condition in the future than would normally be the case due to the potential
gravity of the consequences of a deterioration of his condition.


ii.     If Mr Clark is availed of in‑patient assessment it may be prudent to
consider offering a more thorough emotional assessment and the potential for
psychological therapy.  While for many people the suppression of strong feelings
throughout the life presents few difficulties, the potential for Mr Clark to
experience episodes of disinhibition akin to that last November, has potentially
catastrophic effects with the release of suppressed feelings."


9.     Dr Sian Koppel in her report dated 8th February 2011 said:


i.     "I recommend Kenneth Clark is admitted to a medium secure hospital on a
section 38, Interim Hospital Order, to undergo a hospital assessment as it is
difficult to carry out investigations whilst he is in prison and for prison
officers to notice subtle changes in his mental state which may be related to
his cognitive impairment or an abnormality of mood.  Neuropsychiatric testing
and further neuro‑imaging to exclude intracerebral pathology which could account
for his epilepsy and cognitive deficits are more appropriately completed from
hospital setting.  Focusing on an assessment of risk is necessary to develop a
structure to reduce the risks he poses to others."


10.     Dr Koppel produced a later report dated 25th May 2011.  The appellant
had been transferred to the Caswell Clinic for assessment under section 35 of
the Mental Health Act 2007.  At paragraphs 103 and 104 of that report Dr Koppel
said:


i.     "Actuarial risk assessment places Mr Clark in a low risk group for
reconviction for a future violent offence.  His presenting clinical picture may
indicate that there is some ongoing risk of violence or self‑harm.  He appears
to have committed his offence in the context of a homicide‑suicide plan,
responding to stress and unable to plan a more adaptive solution to his
difficulties.  He appears to have been attempting to conceal the extent of his
financial problems, and had he sought help sooner, the offence may have been
avoided.  Mr Clark's personality and the presence of mild cognitive impairment
seem likely to have contributed to his impaired thinking and problem solving.
There may be a question mark over whether or not he was or is suffering from a
mood disorder that may also have contributed to the offence.


ii.     Mr Clark has a large number of protective factors that will need to be
mobilised to prevent a recurrence of risk.  Risk of suicide should be considered
as significant as risk of violence."


11.     Dr Koppel's recommendations were as follows:


i.     "It is my professional opinion that Kenneth Clark is not suitably placed
in a medium secure unit.  The cognitive decline he shows may be at least in part
a response to being removed from his normal environment and will have
exacerbated any underlying cognitive impairment.


ii.     Mr Clark does not appear to be at high risk of future violence.  There
will remain some residual risk of violence and self harm that is most likely
associated with mild cognitive impairment and an inability to cope with the same
level of demand as his premorbid functioning allowed him to manage.  He will
require ongoing professional care to monitor changes in risk.  His potential for
concealing and minimising problems will need to be understood and taken into
account for those providing care.


iii.     Mr Clark does not show evidence of a personality disorder, although his
personality structure would have influenced the expression of and response to
his cognitive deficits.


iv.     Mr Clark wants to return home and his wife shares this goal.  This may
be possible provided there is a suitable package of care including monitoring of
his mental state and cognitive function, as well as interventions to help him
and Mrs Clark consider and adjust to the changes that are occurring.


v.     I think there should be some further discussion about whether Mr Clark
has had or does have a mood disorder that is partially treated by his epilepsy
medication and further concealed but actively managed by Mr Clark.


vi.     Mr Clark does not appear to be at high risk of future violence.  There
will remain some residual risk of violence and self harm that is most likely
associated with mild cognitive impairment and an inability to cope with the same
level of demand as his premorbid functioning allowed him to manage.  He will
require ongoing professional care to monitor changes in risk.  His potential for
concealing and minimising problems will need to be understood and taken into
account for those providing care.


vii.     Mr Clark does not show evidence of a personality disorder, although his
personality structure would have influenced the expression and response to his
cognitive deficits.


viii.     Should the court decide on a non‑custodial sentence we are all aware
that Mr and Mrs Clark are both keen and have their hearts set on Kenneth Clark
returning home with his wife.  Given all the factors discussed previously in
this report, and particularly risk factors discussed in the psychology report,
and in view of the gravity of the assault Kenneth Clark made on his wife, we
strongly recommend that in order to manage the risks, it will be essential that
both Kenneth and Win Clark are supervised and supported within the community.
We suggest:


o     a community rehabilitation order with medical treatment as a requirement


o     involvement of the Mental Health Services would focus on continuing to
monitor for any evidence of cognitive decline


o     monitoring Kenneth Clark's mental state primarily looking for evidence of
depressive symptomatology, however atypical, such that an early intervention
before a marked deterioration may reduce the risk of further violence


o     monitoring Kenneth Clark for evidence of anxiety disorder (with his
description of panic attacks and suppressing uncomfortable or unwanted emotions)



o     monitoring Kenneth Clark's epilepsy


o     we also recommend that Mr and Mrs Clark enter into couple therapy to
support them in their changed relationship following such a traumatic event.
Unexpected emotions and responses to one another may be explored in the safety
of a therapeutic setting with an independent therapist to mediate.  They will
also be encouraged to communicate with one another and avoid keeping things
private or secret.


i.     Naturally, should this be implemented, it may take several days to
involve the necessary local personnel who will undoubtedly make a preliminary
assessment of their own and identify individuals to implement the monitoring and
treatment programmes.  Ideally, we believe this should be established before
Kenneth Clark returns home and on discussion with Kenneth Clark on 23 May 2011,
he agreed to remaining in the Caswell Clinic for a further few days if that
should be necessary.  His response appeared to be based on his appreciation of
the information I gave him and he stated he would comply with any
recommendations which would be helpful to him and Win, and I believe his
responses were quite genuine and it was heartening he manifested such an
alteration in insight.  It was also agreed that a MAPPA would be arranged before
he returned home."


12.     The pre‑sentence report by a probation officer who had that medical
evidence suggested a suspended sentence order with a 24‑month supervision
requirement.  The probation officer said:


i.     "A period of supervision would provide a platform of management and would
allow structure to provide a multi agency approach to addressing Mr Clark's
issues.  As stated staff from the Caswell Clinic will provide ongoing support in
the community for a 6 month period with plans that this will then be taken over
by the local community health team should it still be required.  The main aim
will be to assess Mr Clark's cognitive ability and look for any signs of
decline.  His engagement with the mental health services would form part of Mr
Clark's sentence plan.  Supervision would also allow for continuing discussion
regarding Mr Clark's financial position, allowing for early intervention should
problems arise.  Although not enforceable, Mr and Mrs Clark would be encouraged
to attend counselling to deal with the effects of this offence...


ii.     Should the court agree with this proposal Mr Clark would be required to
attend Aberystwyth Probation Office on [a date and time which were specified]
for his induction appointment."


13.     The judge had, and we have, numerous good character references.  We also
now have a prison report helpfully provided at short notice at the request of
the probation officer attached to this court.  We note that Dr Koppel has
visited the appellant in prison, his wife remains supportive and visits him
regularly.


14.     The single judge said when granting leave to appeal:


i.     "This is an extremely sad case.  It gave rise to an exceptionally
difficult sentencing exercise.  Although I have considerable sympathy for the
sentencing judge, it seems to me at least arguable that the term of 4 years 8
months was manifestly excessive.  Your age, and that of your wife; the length of
your marriage; the circumstances in which you came to strike her; and her
continuing upset at the prison term that you received, are all matters which, in
my view, should be argued before the full court."


15.     We agree with those comments of the single judge.


16.     Having considered all this material, it is clear to us that it is not in
the interests of justice or of the appellant or his wife or the public to apply
the sentencing guidelines, which could never have been intended to apply to such
an exceptional case as the present.  We too sympathise with the difficulties
faced by the sentencing judge in this exceptional case, but, having considered
carefully all the material that has been put before us and taking into account
the sentence that has already been served, we have come to the conclusion that
it is inappropriate for Mr Clark to remain in prison.  He should be released
subject to the probation order to which we have referred, which he understands.
We confidently expect that he and Mrs Clark will co‑operate with the local
mental health unit which is required as mentioned in the reports to which we
have referred and will co‑operate with the probation officer, who will receive a
copy of the sentencing remarks and of the medical evidence to which we have
referred.  We take account of all those facts.  Having taken those into account,
we make the order indicated at the beginning of this hearing.

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