No. 2001/05904/W3
Neutral Citation Number: [2001] EWCA Crim 2888
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday  11  December  2001
B e f o r e:

SIR  RICHARD  TUCKER

and

HIS  HONOUR  JUDGE  MADDISON
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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T.  M.  S.
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MR P ARNOLD appeared on behalf of THE APPELLANT

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J U D G M E N T
Tuesday 11 December 2001
1.	SIR RICHARD TUCKER: His Honour Judge Maddison will give the judgment of the court.
2.	HIS HONOUR JUDGE MADDISON: The appellant, T.M.S., who is 44 years of age, appeared in the Crown Court at Worcester on an indictment containing two counts. The first charged her with the theft of cash belonging to her employers, Martin's newsagents, early in October 2000. The second charged her with doing acts tending and intended to pervert the course of justice on 8 October. On 8 March 2001, she pleaded guilty to count 2. On 12 July, when she was due to be tried on count 1, she changed her plea to one of guilty. On 19 October 2001, she was sentenced by His Honour Judge Mott to serve eight months' imprisonment concurrently on each count. On the same day her husband, who was co‑accused with her on count 2 of the indictment, was sentenced to serve four months' imprisonment. The appellant now appeals against her sentence by leave of the single judge. 
3.	The relevant facts were these. The appellant was employed as the manageress and her husband as the supervisor of a Martin's newsagents shop in Droitwich. On 8 October 2000, police were informed that a robbery had taken place at the newsagents. On arrival they found the appellant in a distressed state. Both she and her husband alleged that the robber had thrown liquid into her face, threatened to set her alight, had demanded money, and had then made off with the cash box. The officer who attended could smell petrol on the appellant. Both the appellant and her husband made statements about the supposed incident. It was established that cash amounting to about £1500 was missing from the shop. The police became suspicious because the accounts given by the appellant and her husband did not tally. It appears that it was later the same day when she was being interviewed that the appellant admitted that there had been no robbery after all. She explained that she had been under a lot of pressure, working long hours at the shop. She had asked her employer for help and was supposed to be training her husband to work with her, but pressure of work created problems between them. He had said that he was going to stop working there. They had had a considerable row recently and he had stormed out of the shop. Unable to reach him by telephone, she had become angry. On the Saturday evening she had taken the cash box containing the money and gone to the flat in Birmingham where he was living. She said that she had done this in order to try to force him to come back to the shop to help her. He had not been at the flat, so she had left the cash box with a note. When she had eventually told him what she had done, he “went barmy”. She had suggested that they should pretend that the money had been stolen. She had told him what to say and she had tipped the petrol over herself. It follows that on any fair view she was very much the instigator of both of the offences charged in the indictment. The police recovered the cash box from the flat in Birmingham. Fortunately, the appellant's employers suffered no loss. 
4.	When sentenced, the appellant was of previous good character. There were before the learned judge a considerable number of reports. We propose to summarise their effect rather than explain their contents in great detail. The learned judge had a pre‑sentence report dated 2 August 2001. He had a number of medical and psychiatric reports: a psychiatric report from Dr Rosemarie Cope dated 26 February 2001; a report from Dr Jo Lennie, the appellant's general practitioner, dated 11 July 2001; and a second report from Dr Cope dated 17 October 2001. The learned judge also had before him a letter from the appellant herself, explaining that her husband had gone off and left her to run the shop single‑handed; that she had been under extreme pressure of work; and that at the close of business the thought of having to return at 5.30 the following morning hugely overwhelmed her. She said, 
“I can only describe now what I thought to be a good reason then in order to make Alan come back as totally stupid. I am so full of remorse and shame and deeply regret my actions of the time. I feel I have died inside.” 
5.	The terms in which that letter is written are perhaps explained by the contents of the reports to which we have referred. In essence they explained that the appellant was suffering from a depressive mental state. She had had an unhappy childhood; she had had an unhappy marriage; she had been under very severe pressure at work; she had taken upon herself more than, given her background and state, she should have done; and she was depressive to the extent that the reports, including that of Dr Rosemarie Cope dated 17 October, expressed concerns that she may be suicidal. 
6.	In those circumstances the learned judge had an extremely difficult sentencing exercise. He was dealing with a significant breach of trust; the appellant had been the instigator of the offences; and he was also dealing with an offence of attempting to pervert the course of justice. For offences of that kind and on this scale substantial custodial sentences are usually to be expected. When passing sentence, the learned judge said that he took into account the psychological, psychiatric and physical difficulties from which the appellant suffered, but took the view nevertheless that the offences were so serious that a custodial sentence, albeit one much shorter than would usually be appropriate, had to be passed. 
7.	Following the imposition of the appellant's eight‑month prison sentence, developments occurred which have led us to the conclusion that it is appropriate to allow this appeal. Within days of sentence having been passed, the appellant's mental condition gave cause for such concern that she was transferred to the Worcester Royal Infirmary. Since that time she has been under the care of Dr O'Leary. We are told by Mr Arnold, who appears for her today, that Dr O'Leary's present opinion is that the appellant's mental condition has improved to the extent that if he were able to do so, he would now allow her to go home and have out‑patient treatment. He would not, however, allow her to go back to prison because he fears that a return to prison would have a seriously adverse effect upon her present mental condition. 
8.	It is against that background that we are urged by Mr Arnold to make a community rehabilitation order with a condition of mental treatment such as was proposed by the report of Dr Cope dated 17 October which was before the learned judge. We are told that, should this appeal be dismissed, the practical effect is that the appellant would qualify for early release on 19 December 2001 under the “tagging system”. But if she were released in that way, she would not be released under licence. We take the view in all the circumstances of this case, and in particular having regard to the developments since sentence was passed, that this is an appellant who needs the help of the probation and psychiatric services. 
9.	For those reasons we accede to the submissions of Mr Arnold that a community rehabilitation order with the condition to which reference has been made is appropriate. There are a number of statutory requirements that have to be fulfilled before such an order can be made. We are satisfied on the evidence of Dr Rosemarie Cope, who is approved for the purposes of section 12 of the Mental Health Act 1983, that the mental condition of the appellant is such as requires, and may be susceptible to, treatment; but that it is not such as to warrant the making of a hospital order or guardianship order within the meaning of the Act. For the avoidance of doubt, we say this by reference to her report of 17 October 2001. We are satisfied that arrangements have been made for the treatment intended to be specified in the order. Although the appellant is not present today, we are satisfied, having read the medical report of Dr Cope, that she has expressed her willingness to comply with a requirement of treatment. Accordingly, we make a community rehabilitation order for a period of two years. That includes a requirement that, during the whole of the community rehabilitation period, the appellant shall submit to treatment by or under the direction of Dr O'Leary, the consultant psychiatrist who has been in charge of her case at the hospital where she is at present. That treatment will be carried out under the direction of Dr O'Leary pursuant to paragraph 5(3) of Schedule 2 to the Powers of Criminal Courts (Sentencing) Act 2000. We substitute that order for the sentence of eight months' imprisonment. It follows therefore that this appeal is allowed. 
10.	This court wishes to make it clear that under normal circumstances a sentence of the kind passed by the learned judge (and indeed very often a more substantial sentence than that passed by the learned judge) would be entirely appropriate. It is because of the circumstances concerning the appellant's present position that we have taken this exceptional course.