No: 2009/0006/C4 
Neutral Citation Number: [2010] EWCA Crim 414
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 24 February 2010
 
B e f o r e:
 
LADY JUSTICE HALLETT DBE 
MR JUSTICE OUSELEY 
 
MR JUSTICE MACDUFF 
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R E G I N A 

v 

ANDREW NUGENT
 
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Computer Aided Transcript of the Stenograph Notes of  
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The Appellant appeared in person
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J U D G M E N T
1.	MR JUSTICE OUSELEY:  Mr Nugent appears in custody in person to pursue an appeal for which leave was granted by the single judge against an indeterminate sentence of imprisonment for public protection with a specified minimum term of 18 months imposed on 16th April 2008 by His Honour Judge Niblett sitting at Lewes, with 140 days on remand in custody to count towards sentence.  The sentence was imposed following an earlier plea of guilty to an offence of making a threat to kill.  The appeal concerns not the custodial sentence or the notional determinate length of three years, but whether the sentence should have been an indeterminate one of imprisonment for public protection.  When leave was granted an extension of time was also granted and this appeal comes on nearly two years after the sentencing date.  
2.	At the outset of the appeal, we dismissed an application contained in a letter dated 23rd February 2010 from Cunningham's Solicitors in which they asked for an adjournment of this appeal.  Cunningham's have been involved in this case since about the summer of 2009.  Although the letter makes a number of points on Mr Nugent's behalf about the indeterminate sentence, the real point of the adjournment was that it would enable grounds of appeal to be provided, supported by a new forensic psychologist's report, which was being obtained for the purposes of a forthcoming Parole Board hearing into the issue of dangerousness which arises as a consequence of the indeterminate sentence.  We refused the adjournment for reasons which were given, in particular the passage of time and the basis upon which it was sought, but in dealing with this appeal we emphasize, as was done during the course of the debate over the adjournment, that what we say relates to the judgment of His Honour Judge Niblett in April 2008 on the material before His Honour Judge Niblett in April 2008 and is not intended and should not be taken as a judgment about the risk, if any, which Mr Nugent now may represent.  That is entirely a matter for the Parole Board to decide.
3.	The brief facts are that on 9th November 2007 the appellant attended a clinic in Eastbourne, where he was being treated, to collect a Methadone prescription.  He was seen by Dr Perry who became concerned about him as he looked dishevelled and appeared to be under the influence of drugs.  The appellant told Dr Perry that he had been sleeping rough for the last few days and that his life was not worth living.  Dr Perry arranged for a mental health team to carry out an assessment of him and to find some temporary accommodation for him.  The appellant, contrary to what the prosecution opening of facts said, has never been diagnosed as a schizophrenic but the material before His Honour Judge Niblett described him, in a variety of ways, as a person with a personality disorder with aspects of paranoia.  We shall return to that.
4.	During this mental health assessment at which Dr Perry was present, the appellant first threatened to kill himself.  Shortly thereafter he said he had no intention of doing that, but that he would go to Poundland and kill someone else.  He would get a pair of scissors and stab someone through the heart with them.  He then said that he would simply stab a passer‑by.  He became increasingly agitated which led to one of the mental health workers calling the police.  He was shortly afterwards arrested.  He accepted telling the staff that he would hurt himself, but denied making any other threats.
5.	The appellant has been convicted on 30 previous occasions for 55 offences, the majority of which were for dishonesty and which have led to him serving many short sentences of imprisonment.  There had been one previous offence of threatening behaviour which had involved a degree of aggression but the instant conviction was his first for an offence of violence and his first sentence of imprisonment for public protection.  
6.	The judge took into account a number of reports and statements of medical opinion.  One was the witness statement of Dr Perry who had seen him on 9th November and in that statement said that Mr Nugent had a cold, calculating, menacing attitude towards life and in his opinion would not hesitate to carry out the threats he made if anybody was to get in his way.  There was a further incident on 20th November to which Dr Perry referred where Dr Ogeleye was also present.  The appellant said words to the effect that it would not worry him if in burgling a house he disturbed somebody and killed them by plunging a knife into them and he said that he would have no remorse about hurting people whether they were men or women, but he would not hurt children.  Dr Perry said that when he heard the appellant say this his blood ran cold, for Mr Nugent showed no emotion about what he had just said and it appeared to him to be something that was an everyday occurrence.  Dr Perry felt that although Mr Nugent might not carry out the threats immediately, "he will in the future have no hesitation in hurting somebody and quite likely a complete stranger and I feel that before long somebody may even get killed." 
7.	One of the points made in the solicitor's letter of 23rd February 2010 was that the judge should have disregarded that expression of opinion by Dr Perry, for Dr Perry was not a qualified psychiatrist.  We reject that submission.  Dr Perry was a qualified doctor who had had some years experience of dealing with those who were drug addicts and affected also by alcohol problems.  He was working in a specialist clinic dealing with patients of that sort.
8.	There was a pre‑sentence report prepared by Mr Cooper before the judge which recorded Mr Nugent's contention that the offence was being blown out of all proportion and that the threats he had made were not genuine threats at all.  This report referred to the particular problems posed by the extensive and long‑term drug use in which Mr Nugent had engaged and recorded that Avenida Lodge, where Dr Perry worked, had decided that he was too dangerous and too challenging to go to that clinic any longer on release.  A psychiatric assessment was that he had had a personality disorder incorporating paranoid perceptions and he was currently on anti‑psychotic medicine as well as Methadone.  After referring to the incidents recounted by Dr Perry, Mr Cooper said that the risks posed by Mr Nugent could not be adequately managed in the community: "The behaviour he has threatened and also the behaviour he displays to witnesses are of the most serious kind." Mr Nugent and his solicitor point out, correctly, that Mr Cooper recommended a custodial sentence.  He did not recommend an indeterminate sentence.  
9.	However, the matter then proceeded in this way.  The court asked for a psychiatric report and a psychiatric report on behalf of Mr Nugent was prepared by Dr Baginski.  Dr Baginski is approved under section 12 of the Mental Health Act.  In his report he recounted the progress of Mr Nugent's mental state from the late 1980s, including his detention briefly under the Mental Health Act, and the disturbance associated with paranoid beliefs and his extensive drug taking.  Although he presented a fairly normal mental state on examination, with no elements of depressed mood, clear thinking, coherent speech and comprehension with overall well preserved judgment and appeared well motivated to deal with his drug habit, the psychiatric report referred to information in addition to that to which we have already referred.  The prison report, and it is borne out by the report that we have seen, described him as alternating between co‑operation and intimidation towards staff and other inmates. He had a quite severe anti‑social personality disorder, complicated by drug abuse, and Dr Baginski adopted in his opinion the report of Dr Ogeleye that Mr Nugent's overall risk to the public should not be "underestimated".  Mr Nugent was suffering from quite pronounced personality disorder with antisocial traits, complicated by perpetual substance misuse.  Criminal activity had persisted since he started abusing drugs, without major evolution or relief despite the number of prison sentences.  None of the other interventions ‑ Methadone, support or supervision ‑ had had any significant effect.  Mr Nugent, he said, could be potentially dangerous to the public and his psychiatrist asked the court to consider any legal means to reinforce his compliance and address his dangerousness in the community.  
10.	It was in the light of that report that Mr Edwards, another probation officer, prepared a further report.  Although, as indeed is the case, he pointed out that Mr Nugent has a lack of previous violent convictions, the evidence of the previous assessments and the details of the events indicated an identifiable risk of serious harm and he assessed the risk of serious harm to the public to be high and that he met the criteria for sentencing under the public protection legislation.  He agreed with the previous assessments.  
11.	Mr Nugent and his solicitors complain that that report was compiled without an interview of Mr Nugent himself, but it is and is properly to be seen as an assessment drawn from a variety of sources which did include those such as Mr Cooper who had previously had the advantage of interviewing Mr Nugent.  The criticism that Dr Baginski's conclusions were arrived at without the use of formal diagnostic assessment tools is not one which it is really open to allege in respect of the report which is obtained from the psychiatrist whom his solicitors instructed, however much Mr Nugent may now complain about the competence of the solicitors then acting.
12.	The judge in his sentencing remarks, having set out those matters which we have elaborated, came to the conclusion that he could not ignore all the material that he had and was of the view that there was a significant risk to members of the public of serious harm being occasioned by the commission of further specified offences.  It is our judgment that on the material then before the judge he was fully entitled and indeed it was inevitable on that material that a sentence of imprisonment for public protection be imposed.  Accordingly, we dismiss this appeal, emphasising that it is now for the Parole Board on the material before them to decide whether Mr Nugent can be released at the conclusion of the minimum term.