Neutral Citation Number: [2011] EWCA Crim 1197
Case No: 201006885 A7

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM IPSWICH CROWN COURT
H.H.J HOLT
T20100320
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/05/2011
Before:

LORD JUSTICE MOORE-BICK
MRS JUSTICE RAFFERTY DBE 
and
MR JUSTICE EDER 
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Between:

	R	Respondent	
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	DALE BOND	Appellant	

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Mr Richard Potts (instructed by Levy & Co Solicitors) for the Appellant
Mr Andrew Shaw (instructed by Crown Prosecution Service) for the Respondent

Hearing date: 19 April 2011
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Judgment

Mr Justice Eder: 
1.	On 8 October 2010 in the Crown Court at Ipswich, the applicant was convicted after trial of making a threat to kill. 
2.	On 29 November 2010 he was sentenced to imprisonment for public protection. The period of 30 months was specified as the minimum term under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 less 173 days.
3.	The applicant now renews his application for leave to appeal against sentence after refusal by the single judge. The hearing of that application took place on 19 April 2011 when we gave our decision with reasons to follow. These are the reasons for our decision.
4.	The background to the offence is as follows.
5.	On the morning of 7 June 2010, the applicant attended the A&E department at Ipswich Hospital. There he was seen by the psychiatric liaison nurse. He told her he had been hearing voices for a number of weeks which had been telling him to kill himself and hurt other people. He said he was feeling suicidal and wanted to take others with him. The applicant said the only thing stopping him from acting on his thoughts was the fact that he had two children living with his ex-partner. The nurse referred the applicant to the crisis mental health team.
6.	Two members of that crisis team saw the applicant and before they could even introduce themselves he started to tell them about the thoughts he was having of killing and harming people especially a female cousin who lived in Colchester. He described her as an evil bitch. He also described killing other people who have wronged him and after that he would kill himself.
7.	The crisis team could find no psychotic symptoms and at one point the applicant agreed he was having thoughts rather than hearing voices. The applicant kept saying that if he didn't get help he would kill people and went into graphic detail about the use of knives. He repeatedly talked about having thoughts of killing his cousin in Colchester. Both members of the crisis team found the applicant's manner unnerving and were of the opinion that he was not mentally ill but harboured violent thoughts. They believed he intended to act on them and so called the police. The applicant was arrested.
8.	The applicant pleaded not guilty but was convicted after trial.
9.	At the time of the offence, the applicant was 27 years old or thereabouts. He had 20 previous court appearances for 30 offences between 1997 and 2010 including criminal damage, burglary with intent to steal and threatening behaviour.
10.	In sentencing the applicant, the judge referred to and took into account the evidence of both members of the crisis team who had seen the applicant at the hospital. The first member (Mr Barton) an experienced member of the crisis mental health team concluded that the applicant had a vendetta against his cousin and was not suffering from a major psychiatric illness. The applicant had seemed preoccupied with knives and Mr Barton had concluded that the applicant was driven by anger and not mental illness. Mr Barton had also been scared and believed the applicant's behaviour was a matter for the police and not for the mental health authorities.
11.	His colleague (Miss Everett) gave similar evidence and could find no evidence of mental illness. She described how the applicant appeared to be keen to tell her and Mr Barton of the thoughts he was getting about killing his cousin.
12.	The applicant was sentenced on the basis that he was not mentally ill. He had a lengthy record with a theme of violence. It was low-level violence but it was associated with intimidation and only recently he had been sentenced for assaulting prison staff.
13.	In addition to the evidence of the two members of the crisis team, the Judge had available a presentence report. According to the report, the applicant accepted his conviction but argued that he had not named any specific individuals. He said he had gone to the hospital to seek assistance for his mental health problems. He said the threats he had made were an expression of the frustration he had felt and he believed the professionals who had seen him were not sufficiently qualified. There were concerns that the applicant had been trying to relocate closer to his ex-partner and children despite there being a non-molestation order in place. The applicant was in receipt of state benefits. He continued to express concerning views about women and his ex-partner in particular. He continued to minimise his abuse of her. There were also concerns for the applicant's female cousin. The applicant appeared to have very little empathy with others. Throughout supervision the applicant had exhibited rigid dysfunctional thinking. His attitudes towards women were abusive. The risk of re-conviction was assessed as high. There was a potential for high risk of harm to known adults and the public. The applicant lacked a sense of responsibility. An extended sentence was proposed.
14.	Having considered the evidence given by the two members of the crisis team at the trial and the material contained in the presentence report, the Judge concluded that he was satisfied that the applicant posed a serious risk of serious harm of specified offences and that the applicant was accordingly dangerous within the relevant statutory provisions i.e. s225 of the Criminal Justice Act 2003. On this basis, the Judge concluded that the only appropriate sentence was imprisonment for public protection pursuant to s225 of the Criminal Justice Act 2003. He also concluded that had a determinate sentence been appropriate it would have been five years and so the minimum term for the IPP was 30 months.
15.	In support of this application for leave to appeal, it is said that the sentence imposed was wrong in principle and or manifestly excessive for two main reasons. First, it is said that the court could not be satisfied upon the material before it that there was a “...significant risk to members of the public of serious harm occasioned by him of further specified offences” in accordance with s225(1)(b) of the Criminal Justice Act 2003. Second, it is said that the five years as the notional determinate term did not represent the applicant’s criminality and was manifestly excessive.
16.	As to the first main ground of appeal, reliance is placed upon a number of matters. In particular, it is said that factually there was no weapon present; no conduct which was or was perceived to be threatening in nature to anyone present at the time; the behaviour complained of was in the process of the applicant seeking help and he was at the hospital for in excess of five hours, calm and peaceful. In addition, it is said that the applicant does not have an extensive history of serious offending still less any history of seriously violent offending. The applicant is not otherwise convicted of any "specified offence" within schedule 15 of the Criminal Justice Act 2003. He has never previously been subject to any substantial custodial sentence. There was no material before the court to suggest that any conduct amounting to breaches of non-molestation orders was violent. Neither the pre-sentence report nor the addendum prepared for these proceedings proved that any risk that exists is of serious harm.
17.	We recognise the force of all these points. However, in reaching his conclusion, the judge had the benefit not only of the pre-sentence report but also the evidence at trial including the evidence of the members of the crisis team.
18.	This was a very difficult sentencing exercise, even for such an experienced tribunal.  The judge was confronted with the need to balance the interests of the public, entitled to protection from further foreseeable harm from the man in the dock, with those of the man in the dock, whose liberty he must deny him for no longer than is necessary. 
19.	As stated by this Court in R v Johnson & Others [2007] 1 WLR 585 at p590 para 11, this Court will not normally interfere with the conclusion reached by a sentencer who has accurately identified the relevant principles and applied his mind to the relevant facts.
20.	In our judgment, there is nothing impugnable in the conclusion that the applicant is dangerous in the statutory sense. The judge heard evidence from two mental health professionals and was entitled to place considerable reliance on the help they offered him. He took account of all he had seen and heard and was explicit in reflecting all that information into his conclusion. We cannot see that he fell into error in so doing.
21.	It follows that a sentence of imprisonment for public protection fell to be considered.
22.	However, by virtue of s225(3) of the Criminal Justice Act 2003, the Court only had power to impose such a sentence if either of the conditions in subsections (3A) or (3B) were met. Subsection (3A) is not relevant because at the time the offence was committed the applicant had not been convicted of an offence specified in Schedule 15A.
23.	Subsection (3B) is, however, potentially relevant because it sets out as a condition of a sentence of imprisonment for public protection “…that the notional minimum term is at least two years…” As already stated, the Judge here determined the notional minimum term as 30 months. This was on the basis of a notional determinate sentence of 5 years arrived at by the Judge.
24.	The question then arises as to whether this notional determinate sentence of 5 years was correct. This is the focus of the second main ground of appeal.
25.	In reaching that 5 year notional determinate sentence, the Judge placed reliance upon the case of R v Tucknott [2001] Cr App R (S) 93 which he regarded as being “not dissimilar”. In Tucknott, this Court imposed a sentence of 5 years imprisonment.  It is true that in that case as in the present case, the threats to kill were not made directly to the person(s) in question. It is also noteworthy that in Tucknott, there was no immediate danger to the two named threatened victims because the defendant in that case was serving a sentence of imprisonment at the time. However, in our judgment, there were other circumstances which were remarkably different. In particular, in Tucknott, the defendant had a record of serious violence including a conviction for manslaughter. In addition, the threats to kill in that case were made to prison officers escorting the defendant to hospital for treatment of his wounds, self-inflicted when he heard his latest girlfriend had a new boyfriend. 
26.	Plainly, the appropriate sentence must take proper account of the particular circumstances of the offence as shown, for example, by the decision of this Court in R v Birch [2001] EWCA Crim 2400 where a sentence of 2 ½ years was imposed in circumstances which were seemingly more serious than in the present case. If the threats to kill in the present case had been made in the presence of the cousin, the applicant would probably have received no more than 2 ½ -3 years imprisonment, so the sentence here should be less than that.
27.	In our judgment, the circumstances of the present case are very different from those in Tucknott. The applicant in the present case was a man who sought help, as we have made plain in our rehearsal of the facts. He went to the hospital to seek that help. That he intended his threats to be believed is congruous with his troubled state but, crucially to our conclusions, not incongruous with what are at least arguably the beginnings of insight. 
28.	Bearing all these matters in mind, we have reached the conclusion that the notional determinate sentence of 5 years imprisonment identified by the Judge was manifestly excessive and that the appropriate notional determinate sentence here was 2 years’ imprisonment. On that basis, the notional minimum was less than the 2 years stipulated in s225(3A) of the Criminal Justice Act 2003 and, accordingly, the condition set out in that subsection was not satisfied. It follows, in our judgment, that the court had no power to impose a sentence of imprisonment for public protection under s225 of the Criminal Justice Act 2003; that leave to appeal should be granted; and that the sentence imposed should be quashed and substituted with a sentence of 2 years imprisonment.
29.	In addition, in order to provide a measure of protection to the cousin, we made a restraining order preventing the appellant from making contact with her or approaching her address.