No: 83 of 2001
Neutral Citation Number: [2001] EWCA Crim 2443
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Wednesday 31st October 2001
B E F O R E :

LORD JUSTICE JUDGE

MR JUSTICE HOLMAN

and

MR JUSTICE MACKAY

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REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988

ATTORNEY‑GENERAL'S REFERENCE NO 83 OF 2001
(S.D.F.)

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040   Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR D THOMAS appeared on behalf of the ATTORNEY GENERAL
MR R SMITH QC appeared on behalf of the OFFENDER

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JUDGMENT
Wednesday 31st October 2001
1.	LORD JUSTICE JUDGE: This is application under section 36 of the Criminal Justice Act 1988 by her Majesty's Attorney General to refer the sentence imposed by His Honour Judge Dyer on S.D.F. at Bristol Crown Court on 1st June 2001 following the offender's plea of guilty to a single count of robbery. The sentence imposed was a community rehabilitation order for two years with requirements that the offender should reside where directed by the probation officer to include hospital or as an in‑patient or out‑patient and to take such medication as was prescribed.
2.	The offender, S.F., was born in January 1976. He had minor convictions as a juvenile; the last conviction before the events which are about to be described was in March 1996, when he was placed on probation. He had not previously served a custodial sentence and on the evidence before Judge Dyer, and indeed before us, he suffered some degree of mental illness, taking the form of schizophrenia.
3.	The facts of the offence were that on 20th November 2000 the offender robbed a small off‑licence in London Road, Bath. It was the unfortunate, and unfortunately too frequent, but classic, example of robbery of a small shop serving a locality. It was at about quarter to eight in the evening when the manageress of the shop heard the door alarm sounding. She went forward into the shop area. She saw a man standing in front of her who demanded money and a bottle of brandy and some fags. He stood with his face close to the manageress and he held a chrome object in his right hand, which was approximately 12 inches in length. There was an issue as to whether or not he pressed this against the manageress's left cheek.
4.	He was wearing a woollen Balaclava with eye holes in it and he shouted or said to her that she must “open the till. Open the till”. The manageress did so. She stepped back. He stepped forward to help himself. He put his hands into the till, took the notes and then ordered the manageress to pull out the drawer containing the change. She did as ordered. He took a handful of coins and placed them in a yellow plastic bag. He then reached behind him, took three or four packets of cigarettes and made out from the store, taking a bottle of brandy with him.
5.	On the information before us he was, at any rate at that stage, untraced, and the police arrived at the scene. A few days later the offender went to the Royal United Hospital in Bath and was admitted as a voluntary patient. After his treatment had begun and while he was still a patient, he disclosed to Dr Bruce‑Jones, the psychiatrist responsible for his treatment, that he had committed this robbery. He told the doctor that he went to the premises, taking an iron bar with him, and the reason for the robbery was that he wanted money to feed a crack cocaine habit. He had made a similar confession to a staff nurse a few days earlier.
6.	As far as we can see, without those confessions he would not have been linked to the crime at the shop, and having confessed, so to speak, in confidence to those responsible for his medical treatment, he agreed that they should be able to break the confidence that he had reposed in them and inform the police of what he had told them. They, of course, did so.
7.	He was arrested and interviewed. He immediately admitted that he had committed the robbery. He explained that the idea had come by way of suggestion from other associates who had “kind of” bullied him into doing it. He admitted that he had the metal bar with him and that he was wearing the Balaclava woollen hat. His account of what happened coincided substantially with that given by the prosecution witnesses, except, as already indicated, that he denied holding the bar to the face of the manageress.
8.	He pleaded guilty at the first opportunity on the basis of the admissions that he had made in his police interview, and as far as we can see that basis of plea was accepted. In fact, of course, the plea was consistent with his behaviour throughout, from the time when he had chosen to confess to his doctor and then to his nurse, but it is, nevertheless, worthy of note.
9.	The evidence before Judge Dyer included reports from two consultant psychiatrists. At the time the offender was, as he had been ever since he had sought voluntary admission, a patient at the Royal United Hospital under the care of Dr Bruce‑Jones, and he came from hospital for the purpose of sentencing.
10.	Dr Thomson indicated, in summary, that the offender claimed that he had been unwell for some time before the robbery, that watching television had brought pressure on him and he had heard voices inside his head and experienced hallucination. Dr Thomson considered that the offender was fit to plead and had the mental capacity to withstand the course of a trial, although that would be stressful for him. But he also concluded that the offender suffered from serious mental illness. That said, he concluded that the offender would respond to what was described as “long and consistent management” which would be likely to need to last for a number of years. He thought that the offender needed both management and treatment. He recommended a guardianship order, though that, in his view, would have to be in effect indefinite, certainly likely to need to be extended repeatedly. He concluded that there was no reasonable short‑term disposal order. And he added:
“I imagine the Court would be loath to send a man to prison who may immediately merit a suicidal caution order.” 
11.	And he went on:
“(If I made the laws I would give him one week in prison as a learning situation before other disposal, but that is not available).
Other Countries would consider a sentence to a Psychiatric Prison.” 
12.	Dr Bruce‑Jones submitted a short report, in effect by way of addendum to the report from Dr Thomson. Following the offender's plea of guilty, of course, Dr Bruce‑Jones, having been a prosecution witness, was able to resume his responsibilities as the offender's doctor. He explained that the offender was well‑known to the psychiatric services and that he suffered from “schizophrenia complicated by substance misuse and criminal behaviour”. He described the offender's condition at the time of the report as “stable” and said that he was cooperating, at any rate compliant with treatment. He disagreed with the proposal for a guardianship order. He felt that that lacked sufficient teeth to be particularly helpful in the proposed medical management of the offender. What he invited the sentencing judge to do was to allow the offender to continue the process of rehabilitation in hospital for as long as necessary and, therefore, that there should be a community rehabilitation order with strict conditions requiring the offender to attend a psychiatric hospital and reside wherever it was thought appropriate for those responsible for his supervision and care to order that he should reside. At that stage that was the hospital at which he had been a patient for some seven months or so.
13.	Doctor Bruce‑Jones finally observed that if there was any non‑compliance by the offender with the clinical care plan he would then be in breach of the community rehabilitation order and the matter might then be brought back to the court for further sentence to be considered.
14.	That proposal was supported by the pre‑sentence report. We do not propose to read out the whole of this report or, indeed, to go through some of the unfortunate early background of this offender, but according to the report, it was clear that the offender had been receiving medication, had cooperated within the hospital and had been no problem at all. According to the offender himself he had not used any illicit drugs since he had entered the hospital.
15.	The assessment of risk of harm to the public and the likelihood of reoffending was described in this way:
“The current offence indicates that Mr F. has been capable of committing a serious offence with possible long term consequences to the victim of it. Given his age, gender, previous criminal history and current circumstances, however, he is assessed as being a low to medium risk of reoffending in the future. The chances of him reoffending in the future will clearly remain less should he remain under the care of appropriate health officials, subject to appropriate medication and whilst he maintains his illicit drug free position. Mr F. believes that he is receiving the care that he requires at present and is keen not to jeopardise his current position. He has clear victim empathy which, again, should further reinforce his positive attitude not to reoffend.” 
16.	I shall omit some passages from the report, but it continues:
“I believe that Mr F. would be ill‑equipped to cope with such a sentence [that is an immediate order for custody] and it is possible that he would carry out his threats to end his own life were he to receive such a sentence.” 
17.	And then having dealt with the guardianship order, the report continued by asking the court to consider whether an order with some form of enforcement would be more appropriate as a sentence in this case. The argument in support was that a community service would reduce the risk of Mr F. offending in the future and protect the public from any further criminal activity. Mr F. expressed a willingness and desire to comply with such an order and was aware of the strict breach of policy should he fail to do so.
18.	The learned judge, having heard the facts opened by the Crown, plainly indicated that he fully understood that for a crime of this kind an immediate custodial sentence would normally be an appropriate course and, indeed, in the course of his subsequent sentencing remarks he indicated a full understanding, as one would expect from the Recorder of Bristol and a very experienced judge indeed, of the normal range of sentence on conviction after a plea to an offence of this kind.
19.	He considered the matters drawn to his attention by counsel for the offender during the course of his mitigation. The thrust was that this was a case in which, given all the facts of the offence and all the material before the judge, he should pass what was described by Mr Smith QC as an individual sentence, relevant to him; in effect, that he should continue with the treatment that he so desperately needed.
20.	Passing sentence, as already indicated, the judge perfectly well understood the appropriate normal tariff and indeed, he specifically referred to what he described as the directions of the Court of Appeal in cases where people committed robbery on small shops, such as off‑licences where the staff would be extremely vulnerable. He came to the conclusion that he should pass the sentence that he did,
“... because of your plea, the fact that you admitted it to the medical authorities in hospital and that you cooperated with the police,” 
	and after reflecting on the medical evidence before him.
21.	For the sake of completeness, the evidence available to us about the offender's behaviour since the sentence was passed suggests that he has taken advantage of the opportunity offered to him by Judge Dyer. The supplementary report indicates that staff at the hospital maintain that his motivation and concentration continue to improve to the extent that arrangements were being made for him to move on from hospital. According to the nursing staff, it was believed that the offender was committed to remaining drug free and he himself claimed that he had so remained.
22.	The risk assessment at that stage was:
“It is difficult to assess his risk to others regarding public safety when he leaves hospital but providing he is receiving treatment and support and does not return to misusing drugs, all professionals involved in Mr F.'s care and treatment believe he presents relatively low risk to both himself and others.” 
23.	In the Reference, the Attorney General rightly draws attention to the following aggravating features, all acknowledged by Judge Dyer: it was a robbery at a vulnerable small shop, a female member of staff was threatened and the reason for the commission of the offence was to obtain money with which to buy drugs. The mitigating factors drawn to the court's attention are that the offender had made voluntary disclosure of his involvement in the offence and had pleaded guilty.
24.	We are all aware, as Judge Dyer in his sentencing remarks made clear he was plainly aware, of the general level of sentencing normally regarded by this court as appropriate on conviction of offences of robbery perpetrated on those who own or occupy or run small shops and other premises open for use by the public, which are usually unprotected and vulnerable.
25.	What the authorities do not and cannot show are the cases where the individual circumstances of the offender and the mitigation available to him have led to a justified departure from the guidance provided by the reporting sentencing decisions.
26.	We emphasise that it is fundamental to the responsibilities of sentencing judges that while they must always pay proper regard to the sentencing guidance given by this court, they are required also to reflect on all the circumstances of the individual case when deciding on the sentence that is appropriate. Where sentencing judges are satisfied that occasion requires it, they have to balance the demands of justice with what are sometimes described as the calls of mercy. That this principle should be applied in Attorney General's references has been well‑known ever since the very earliest references were made to this court. It is best encapsulated in the observations of Lord Lane CJ in Attorney General's Reference No. 4 of 1989, where, dealing with what was described in the judgment of the court as “the correct approach to section 36” he used words which have been repeated time and again:
“However, it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.” 
27.	Reflecting those sorts of considerations in a case like this, there are occasions when, notwithstanding a conviction for robbery in circumstances like those which obtained here, the court may think it right to take what would be a constructive course to seek to achieve the rehabilitation of the offender. That is precisely what Judge Dyer did here. He was persuaded by the circumstances, including the efforts made by the defendant to seek treatment and the voluntary nature of his confession to his medical advisers before suspicion had fallen on him or he was aware of any suspicion falling on him, and by then releasing them from their obligation of confidentiality, that it would be likely to provide both the offender and the community as a whole with the best possible long‑term solution to the problems which the offender otherwise presented.
28.	He followed the logic of his own analysis when he passed the sentence that he did. To the extent that any of these considerations can be looked at now in retrospect, so far, at any rate, his sentence has been proved to have been right. The prospects of further offending by this offender are now lower than they would have been if a custodial sentence had been imposed, and he is making progress. We do not put it higher than that. He is making progress with the assistance of supervision and medical treatment which may eventually lead to his full rehabilitation in the community.
29.	He is present in court and these remarks are directed at him personally: if he fails, if he commits further offences while he is subject to the order of the court, he will be subject to the serious sanctions of which he was warned by Judge Dyer. On paper this sentence was lenient, but sentencing is not and never can be an exercise on paper; each case, ultimately, is individual. We would be wrong to interfere with the balancing exercise carefully carried out by this very experienced judge, or after he had properly carried out that exercise, with the decision he reached. The sentence which he imposed was not, in our judgment, unduly lenient.
30.	The application in this case is, therefore, refused. Thank you very much, Dr Thomas. Thank you, Mr Smith. Stand up, S.F.. You can go now. You have listened to our warning. Judge Dyer took a chance with you. You have not let him down so far. You make sure that you do not ever let him down. 
THE OFFENDER: I will not.
LORD JUSTICE JUDGE: Very well. Mr Smith, has your client been brought from the West Country? Has he come by himself?
MR SMITH: He has travelled with one of his carers.
LORD JUSTICE JUDGE: May I just thank you very much indeed for coming and for bringing him here and for looking after him and taking him home. Thank you, Mr Smith.