R v Lavender  EWCA Crim 2420
(1) On the material before the sentencing judge, there was nothing wrong in principle with an extended sentence. (2) However, given the recent psychiatric evidence, it was now arguable that the option of a hospital order with or without a restriction order needed to be considered, so leave to appeal was given and a representation order was granted.
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Neutral Citation Number:  EWCA Crim 2420 No: 201101146/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 5th October 2011 B e f o r e: LORD JUSTICE TOULSON MR JUSTICE OPENSHAW HIS HONOUR JUDGE ROOK QC (Sitting as a Judge of the CACD) R E G I N A v JENNIFER MARGARET LAVENDER 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 7831 8838 (Official Shorthand Writers to the Court) NON‑COUNSEL APPLICATION J U D G M E N T (As Approved by the Court) Crown copyright© 1. HIS HONOUR JUDGE ROOK: This is a renewal of an application for an extension of time in which to apply for leave to appeal against sentence and a representation order after refusal by the single judge. 2. On 26th January 2010 the applicant, who is aged 23, pleaded guilty to one offence of arson. She was committed to the Crown Court for sentence and on 25th May 2010 at Exeter Crown Court the applicant was sentenced by His Honour Judge Cottle to an extended sentence of 4 years pursuant to section 227 of the Criminal Justice Act 2003, comprising a custodial term of 12 months' imprisonment and an extension, that is to say an extended period of licence of 3 years, with a direction under section 240 of the Criminal Justice Act 2003 that 122 days count towards sentence. 3. In written grounds of appeal it was submitted on behalf of the applicant that an extended sentence was wrong in principle. It was argued that an extended sentence was manifestly excessive given the circumstances of the offence and the applicant's background. In particular, it was contended that insufficient consideration was given to the applicant's mental health issues and the fact that she had requested help from the time of her arrest and an extended sentence is said would not allow the applicant to be treated for any illness whilst in custody. 4. In refusing leave the single judge said, on the material that was then before him, he did not consider that there were any arguable grounds of appeal that had been made out. Since the single judge's refusal of leave a further psychiatric report has been prepared for this court by Dr Susan Iles, a consultant forensic psychiatrist and the clinician responsible for the applicant. Dr Iles has been in charge of the applicant's care since the applicant was transferred to the medium secure setting of Chadwick Lodge from Peterborough Prison on 1st February 2011 under sections 47 and 49 of the Mental Health Act. The applicant had been recalled to prison from the community in August within weeks of her release on extended licence. 5. Dr Iles' main diagnosis is that the applicant is suffering from borderline personality disorder, which is a sub type of emotionally unstable personality disorder. This has been apparent, recalls Dr Iles, since the appellant's teens and its roots lie in her childhood. 6. According to Dr Iles the applicant's personality disorder is of a long standing and pervasive nature and has led to the applicant to behave in ways to cause distress to both herself and others and which impair her social function. Since the applicant's admission it has become increasingly clear to Dr Iles that the applicant might also be suffering from an autistic spectrum disorder such as Aspergers Syndrome. Dr Iles feels that had the existence of such a pre‑existing hitherto undiagnosed mental disorder been taken into consideration, psychiatric conclusions and recommendations for disposal might have been very different. For example, the court may have seen fit to make the applicant the subject of a hospital order with a restriction order which might have had benefits for future supervision and risk management. 7. In our judgment, on the material before the sentencing judge, there was nothing wrong in principle with the sentence imposed. 8. As the single judge stated when refusing leave in the light of the circumstances of the offence, the nature of the offence and the applicant's prior offending and the content and conclusions of the pre‑sentence and psychiatric reports there was ample material to support the judge's conclusion of dangerousness. 9. Further, in our view, having concluded that the applicant posed such a risk the judge was entitled to pass an extended sentence which accorded with the recommendation made by the then psychiatrist as to how best to deal with the applicant's mental health issues allowing a structured return to the community with supervision. 10. However, in the light of Dr Iles' recent report, as the consultant forensic psychiatrist in charge of the applicant's care and the fresh diagnosis of the applicant as possibly suffering from autistic spectrum disorder, it is now arguable that the option of a hospital order with or without a restriction order needs to be considered as a matter urgency. Accordingly, we give leave to appeal against sentence and we grant a representation order. We make it clear that in being given leave, the applicant should not make any assumptions about the ultimate outcome of this appeal. 11. For the court to be able to consider making of a hospital order, with a restriction order, there will need to be a report from two appropriate medical practitioners and the court will need to hear oral evidence from one of those practitioners ideally Dr Iles. 12. We ask that the prosecution be represented at the hearing. The parties will need to consider whether a hospital order, coupled with a restriction order amounts to a more severe sentence than the extended sentence that was originally passed and we invite written submissions from the prosecution on this issue.
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