No: 200003881/Y2
Neutral Citation Number: [2001] EWCA Crim 57
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL

Wednesday 17th January 2001
B E F O R E :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)

MR JUSTICE HOOPER

and

MR JUSTICE GOLDRING
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R E G I N A

‑ v ‑

D.C.
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040   Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MISS C BRYANT appeared on behalf of the Appellant

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JUDGMENT
1.	MR JUSTICE HOOPER:  On 19th January 2000 in the Crown Court at Ipswich, the appellant, now aged 17, pleaded guilty to four counts of indecent assault, count 8, one of which was added on that day. He had earlier pleaded not guilty to the other three counts. On 9th June 2000 he was sentenced to detention under section 53 of the Children and Young Persons Act 1933 in the following way:  count 8, three‑and‑a‑half years’ detention; counts 1, 2 and 5, two‑and‑a‑half years’ detention on each count concurrent and concurrent to the sentence on count 8. He appeals against that sentence by leave of Gage J.
2.	Count 1:  on 7th August 1998 the appellant, then aged nearly 15, knocked at the door of a house of a woman whom he had approached in the street on two previous occasions. He asked for a hug and when told to go away he grabbed the woman’s breast.
3.	Count 2:  on 12th October 1998, the appellant, then 15 years old, was out with his Rottweiler dog and spoke to another dog walker. He tried to hug her and grab her breasts and then asked for a kiss.
4.	Count 5:  on 31st October 1998, the appellant was with his younger brother and knocked on the complainant’s door playing “trick or treat”. A few minutes later the appellant returned to the same house  alone and asked the complainant if she had a boyfriend. He asked for a kiss. When the complainant refused he forced a kiss on her, pushed her into her house and grabbed her breast.
5.	Count 8:  on 12th November 1998, the appellant returned to the house of the complainant in count 5 and at first apologised. He then tried to kiss her again. He pushed her inside and onto her sofa where he touched her breasts and genital area. He pulled down his trousers. He then struck her on the head, perforating her ear drum. The complainant believed that she would be raped or killed.
6.	In her statement she had said that the appellant had told her: “I’ve got a knife and I will kill you.” That allegation led to a Newton hearing on 20th January 2000. Having heard the evidence, the learned judge ruled that he was unable to conclude whether the appellant was in possession of a knife, but that he was satisfied that the complainant believed that he was. He excluded the use of a knife as a consideration in the sentencing.
7.	We turn now to the somewhat complex history of this case. The appellant was charged with these and other offences in November 1998. Ultimately the prosecution did not proceed on those other offences. He  appeared before the Crown Court on 16th April 1999, aged 15, and pleaded not guilty. After a number of adjournments and following legal argument as to severance, the matter was listed for trial on 17th January 2000. The first day of trial was taken up in legal argument. Before the conclusion of the hearing D.C. offered pleas of guilty to four counts of indecent assault. Those pleas were accepted by the Crown, subject to the one issue which was revolved at the Newton hearing.
8.	The appellant had remained on bail throughout the proceedings, albeit with strict conditions including a curfew which commenced at 6.00 pm.
9.	On 20th January 2000, the case was adjourned for sentence for psychiatric reports. The reports of Dr Anthony Kearns, dated 16th July 1999 and 29th February 2000, diagnosed a learning disability of a significant degree and conduct disorder, and recommended disposal by way of a hospital order under section 38 of the Mental Health Act. There was significant delay in obtaining a second report, due to the difficulties of finding a suitable expert who could assess the appellant within a time scale acceptable to the court.
10.	The report of Dr Staufenberg, dated 23rd May 2000, described D., then aged 15 years, as having the mental  age of a 9 year old and also recommended disposal by way of a hospital order. Dr Staufenberg gave evidence before His Honour Judge Devaux on the occasion when the appellant was sentenced. He confirmed his report, but went on say that there was a lack of available resources for the appellant and it was not, at that time, possible to find a bed for him in a suitable institution. The doctor thought that the finding of a bed could take some months.
11.	Because there was no bed then available, counsel made an application to the judge for a further adjournment of the case so that a bed could be found somewhere in the country. Having heard that application to adjourn, the learned judge, we are told, retired to consider the position and upon returning to court sentenced the appellant without hearing further from counsel. Thus, counsel was apparently denied the right to mitigate on behalf of the appellant.
12.	No pre‑sentence report was ever ordered by the court, notwithstanding the requirements of section 3(2A) of the Criminal Justice Act 1991. It seems to us that such a report should, at some stage, have been ordered in this case in view of that sub‑section particularly in the light of the age of this appellant.
13.	The appellant had findings of guilt for assault  occasioning actual bodily harm, common assault and threats to kill all arising out of an incident in 1995. For those offences he had received a conditional discharge for 1 year. The report prepared for that court by Dr Daly was before His Honour Judge Devaux.
14.	In passing sentence, the learned judge said that he declined to obtain a pre‑sentence report, it having only been requested on the day of sentence, and on the basis that it was unlikely to add any further information. The learned judge noted that the appellant was 16, had pleaded guilty and that there had been a long delay. He had a learning difficulty described as either borderline to mild or moderate. He pointed out that the appellant had committed the offences in counts 2, 5 and 8 after being interviewed by police in connection with other matters. He noted that count 8 was the most serious of the offences as this involved a second attack on the same complainant. He pointed to the fact that there had been no episodes of reoffending for at least the last year. He was given credit for his guilty pleas, although it was noted by the learned judge that these were not offered on the first available occasion. The learned judge rejected any suggestion that the appellant was confused at an earlier stage of the proceedings, this being the explanation proffered  for the failure to plead guilty earlier.
15.	The learned judge said that notwithstanding any views expressed by the medical profession in respect of the appellant’s suitability for assessment or treatment, there was no alternative but to pass a sentence of detention and, due to the gravity of the offences, a general sentence of deterrence was required.
16.	Before this Court there is additional material. We have been provided with reports from the detention centre. According to one of the reports the appellant’s behaviour has been erratic. He may appear to behave well but it is suggested that behind the scenes he can be manipulative towards other trainees.
17.	More importantly, we now have the benefit of a further report, prepared by Dr Gralton, a forensic psychiatrist in development disabilities. He reaches the same conclusion as the other two psychiatrists and believes that the proper way to deal with this appellant is to make an order under the Mental Health Act. However, before making any such firm recommendations he would like to accept the appellant under the terms of section 38 of the Mental Health Act for a period of assessment prior to recommendation for a definitive disposal. We take the view that that is the proper order to make.
18.	We therefore quash the sentence passed by the learned judge, and make an order under section 38. Because of the provisions of section 11(3) of the Criminal Appeal Act 1968, this Court only has the power to make an interim hospital order under section 38, if it first quashes the trial judge’s sentence. That is obviously unsatisfactory and it is hoped that the legislation can be changed as soon as possible. At the conclusion of the period of assessment, under the law as it now stands, the matter must be considered by the Crown Court and not by this Court.
19.	We therefore make an order under section 38. At the conclusion of the assessment period the case should be listed in the Crown Court and before another judge. That judge should be provide with the material which has been made available to this Court.
20.	In those circumstances, this appeal succeeds.