Case No: 2011 05015A7
Neutral Citation Number: [2012] EWCA Crim 1221
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Chelmsford Crown Court
His Honour Judge Goldstaub, Q.C.
T2006 7236
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/06/2012
Before :

THE RT. HON. LADY JUSTICE HALLETT
THE HON. MR. JUSTICE HEDLEY
and
THE HON.  MR. JUSTICE CALVERT-SMITH
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Between :

	Paul Ronald Gilbert	Appellant	
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	The Crown 	Respondent	

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Mr Jonathan Addo (instructed by Mackesys Solicitors) for the Appellant
Ms Diana Pigot  (instructed by Crown Prosecution Service) for the Respondent

Hearing dates : 25th May 2012 
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Judgment
The Hon. Mr. Justice Hedley : 
1.	This is an application for an extension of time ( in excess of 5 years) and for leave to appeal against sentence which has been referred to the Full Court by the single Judge, and then adjourned to this hearing.  This application raises a number of troubling matters and, having heard Mr. Addo’s helpful submissions, we have taken time to consider and now put our conclusions into writing.
2.	On 11th December 2006 the applicant pleaded guilty to an offence of robbery (thereby acknowledging himself in breach of a suspended sentence of imprisonment) before HH Judge Goldstaub, Q.C. sitting in the Crown Court at Chelmsford.  On 26th March 2007 he was sentenced by the same judge to imprisonment for public protection with a prescribed minimum term of 18 months with no separate penalty attaching to the breach.  In the event the judge should have expressed the sentence as detention in a young offender institution for public protection given that the applicant was aged only 19.  Nothing of substance, however, turns on that.
3.	The robbery itself occurred on 22nd September 2006.  A young man aged 15 was standing on the platform at Romford Station waiting for a train to Clacton.  He was approached by the applicant and engaged in conversation and both boarded the train, the applicant leaving it at Colchester.  The applicant asked the young man if he had a telephone he could use and the latter replied that he had not.  Once the ticket inspector had passed through, the applicant became more menacing, demanding the phone and saying (which was untrue) that he had been to prison for stabbing people.  The young man had the presence of mind to remove the SIM card and the courage not only to try to recover it at Colchester but to inform the authorities notwithstanding the applicant’s expressed threat to kill should he do so.
4.	Given the nature of the offence and the applicant’s rather low-tariff but nevertheless extensive and unattractive record, the judge’s conclusion that even on a plea this case merited a sentence of three years imprisonment is beyond criticism.  The focus of the appeal was upon the judge’s findings under Chapter 5 of Part 12 of the Criminal Justice Act 2003 before its amendment by the Criminal Justice and Immigration Act 2008.
5.	The plain fact is that this sentence could not now be passed given the minimum term taken by the judge.  Moreover, even if the applicant were correctly assessed as dangerous, the indeterminate sentence is not mandatory and in any event consideration would have to have been given to an extended sentence.  It was not so when the applicant was before Judge Goldstaub. Q.C.  Once the judge made the finding of dangerousness, the indeterminate sentence was mandatory.  Accordingly the focus of this appeal is inevitably on that finding.
6.	Indeed, as counsel fully recognised, it was the sole issue in this application.  This court has repeatedly made it clear that sentences must be considered as at the time they were passed and in the light of the law and guidance then prevailing.  The critical test for the judge was: is there a significant risk to members of the public of serious harm by the commission by [the applicant] of further specified offences?  - See Section 225(1)(b).  As will appear, the only real issue in this case is whether such harm would be ‘serious’.
7.	It is essential now to turn to the information about the applicant that was available to the judge. He had a pre-sentence report dated 3rd January 2007 together with an addendum of 23rd March.  He also had a psychiatric report from Mr. Emad Yousif dated 19th March 2007 and a local authority psychological assessment dated 27th January 2006.  Although not before the judge, we have a clinical psychology report dated 13th November 2008 from Dr.  Mike Watts, a chartered clinical neuropsychologist.  Two comments can be made about these reports:  first, in none of them is the question of future ‘serious’ harm explicitly addressed; and secondly, they do paint a consistent picture of this applicant.  What follows is derived from all those reports and the substance of it was clearly before, and in the mind of, the judge.
8.	The applicant, who was 19 at the date of sentence had an itinerant lifestyle and had clearly never experienced stable and consistent parenting.  He had a mild to moderate learning disability which derived from an overall I.Q. of 58, which put him in the lowest 0.1% of the adult population and enabled him to function around the chronological age of 8.  Although his daily living skills were those of a 10 year old, his socialisation and communication skills are those of a much younger child.  His receptive skill was the lowest of all.  Moreover, although he suffers from no mental illness, he has a personality disorder which expresses itself in impulsive and anti-social behaviour.  These difficulties mean that although he can function on his own to a limited extent, he is unable to respond constructively to assistance.  This latter is clearly demonstrated by two convictions for assaulting carers.   Dr. Emad Yousif proposes what he needs and the probation officer simply has to record that no such facilities are available.
9.	The applicant has a record of previous offending.  He had 8 previous convictions covering 11 offences of damage, battery, common assault, aggravated vehicle taking, theft and racial abuse.  It is a classic low-tariff anti-social behaviour record.  It does, however, have to be seen in the context of escalating behaviour – the suspended sentence was for common assault – and his impetuous nature, as the probation officer fairly puts it – “Perhaps the most worrying aspect of Mr. Gilbert’s behaviour is the very unpredictability of it.  On this basis alone the risk of harm remains high.”  It cannot confidently be predicted what will happen next.
10.	The judge was confronted with an almost impossible position.  On the one hand he was dealing with a serious offence which merited a significant sentence.  Moreover, the likelihood of re-offending was high and harm to the public thereby inevitable.   On the other hand he was faced by a young man whose background and disabilities (for none of which could he be personally responsible) inevitably evoked real sympathy.  In those circumstances the judge had no choice but to apply the law as he found it.
11.	The result has been that the applicant has remained in custody throughout.  He is currently in hospital, having been transferred there by the Secretary of State pursuant to powers under Sections 47 and 49 of the Mental Health Act 1983.  We do not know how long he will remain there.  We recognise that he may have real difficulties in satisfying the usual criteria for release on parole.  He does not have the capacity to do all the courses and make the advances that would normally and properly be required before release on parole.  He remains in the prison system a system which should not be (and was never intended to be) a fail-safe device for those unable to live a socialised existence in the community. We appreciate that this poses significant difficulties for all those responsible for this (still) young man’s future We recognise too that this sentence neither could nor would have been passed under the amended chapter 5  
12.	However, those matters, however troubling, are not for us and they were certainly not for the judge.  He was required to consider whether the applicant was dangerous within the then meaning of Section 225: if he were, then an indeterminate sentence followed; if he were not, then a sentence of 3 years imprisonment was to be passed.  As we have said the only question in this appeal relates to the question of ‘serious’ harm.  The judge had information that bore on the issue but he had no advice specifically directed to it.  All accepted that there was a significant risk of his committing further specified offences which would cause harm to the public.
13.	The judge in his sentencing remarks set out fully and fairly all the relevant information that he had.  He recognised that no-one is able to put forward a practical proposal for his care.  The judge in the light of all those matters concluded that the risk to the public was of ‘serious’ harm.  Mr. Addo attacks that conclusion.
14.	The essence of his argument is that given the level of criminality both in the index offence and in his record, an indeterminate sentence was wrong in principle and the reason that it has been passed is that the judge has undervalued the concept of ‘serious’.  He points to the case of LANG [2006] 2Cr.App.R (S) 3 and, more by way of illustration, to SHAFFI  [2006] Crim L.R 665.  
15.	However, the questions for us are:  first, was there material upon which the judge could properly come to the conclusion that he did; and secondly, if so, can it be shown that he was nevertheless wrong so to conclude?  We have considered this with the greatest care aware, as we are, of the consequences of his decision and aware of the difficulty that confronted the judge.  We are satisfied that he did have sufficient material on which to base his conclusion when all the available material is considered in the round and the question – what next? – is asked.  We are, moreover, unable to accept that in the circumstances the judge was wrong to conclude as he did. Thus, whilst we think that the issues raised in this case merit both the grant of the necessary extension of time and of leave to appeal against sentence, that appeal must, for the reasons appearing in the judgment, be dismissed.