No: 96/8672/X2

IN THE COURT OF APPEAL
CRIMINAL DIVISION
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Monday 10th February 1997
 
                    B E F O R E :

                 LORD JUSTICE OTTON

               MR JUSTICE BUTTERFIELD

                         and

             HIS HONOUR JUDGE RANT CB QC
               JUDGE ADVOCATE GENERAL
           (Acting as a Judge of the CACD)
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                    R E G I N A

                       ‑ v ‑

                     LEON BROWN
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
    Tel No: 0171 831 3183   Fax No: 0171 831 8838
         (Official Shorthand Writers to the Court)
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MR P BRIEGEL appeared on behalf of the Appellant
 
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                      JUDGMENT
             (As approved by the Court)
 
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                  Crown Copyright 
                          Monday 10th February 1997
MR JUSTICE BUTTERFIELD:  On 29th August 1996 in the Crown Court at Southwark this appellant, Leon Brown, pleaded guilty to possessing a prohibited weapon. Sentence was adjourned in order to allow psychiatric and pre‑sentence reports to be obtained.  The appellant appeared for sentence on 16th December 1996, when he was sentenced to eight months' imprisonment.  He now appeals against sentence by leave of the single judge.
      The facts giving rise to his conviction occurred in the early hours of the morning of 26th December 1995.  At about 5 am the appellant was refused entry to a West End nightclub.  About half an hour later he returned to the premises and tried to gain admittance again.  According to the doorman who was preventing him getting access to the club, the appellant kept talking about such things as religion and the devil.  It made no sense to the doorman, who ignored the appellant.  After five minutes of such ramblings the appellant produced an electric stun gun.  He tested it and told the doorman that he could not be stopped gaining entry to the club and that he, the doorman, was incapable of taking the weapon from him.  The appellant waved the weapon around for about five minutes.  The police then arrived and the doorman was able to take the weapon from him.  In that  period the appellant had not attempted to use the gun either on the doorman or anybody else present.  But the doorman expressed himself as being wary of the appellant and had kept his distance from him.
      On his arrest the appellant said he had found the gun; that he was going to zap the bouncers and that he wished he had.
      The stun gun was a hand‑held electric shock device designed to be used as a weapon for personal protection. It is operated by two 9 volt batteries.  It is the size of a small mobile telephone and it was capable of delivering a high voltage non‑lethal discharge to the potential victim.  It is thus a prohibited weapon within the provisions of section 5 of the Firearms Act 1968.
      The appellant is now 22 years of age.  He has a number of previous convictions recorded against him for offences of theft, possessing controlled drugs, affray and possessing a bladed weapon.  Hitherto he has been dealt with by way of fines and conditional discharges.
      Before the sentencing court there were medical reports which indicated that at the time the appellant admitted the offence he was suffering from mental ill health.  His illness can best be categorised as a manic depressive illness.  He was in the manic phase when he committed the offences, resulting in his behaving in a  disinhibited fashion with significant impairment of his judgment.  After the commission of the offence he was re‑admitted to hospital, treated with anti‑psychotic drugs and made a gradual recovery over a period of two or three weeks.  By the time of sentence he was well and no longer suffering from any form of mental illness.
      The pre‑sentence report, whilst recognising the personal difficulties of the appellant, did not recommend a community penalty.  The author considered that the appellant's mother could ensure that the appellant received treatment if his condition were again to deteriorate.
      In passing sentence the highly experienced circuit judge acknowledged the appellant's plea of guilty, the accepted fact of his mental condition at the time of the commission of the offence and his previous convictions. He continued:
"...I believe in the particular circumstances of this case there must be passed an immediate custodial sentence." 
      We have to consider why such a sentence was required.  Once it is accepted that the offence was committed when the appellant was driven by his mental condition to behave as he did, the concept of punishment or deterrence really ceases to have any relevance.  The only realistic basis for the imposition of an immediate  sentence of imprisonment was that he represented a danger to the community.  No such fear was expressed in any of the number of reports which were available to the sentencing judge.
      It is submitted before us today by Mr Briegel, who appears on behalf of the appellant, that the mental condition of this appellant is such as to justify a court taking the highly exceptional step of suspending a custodial sentence.  He has referred us to authority in which that course has been taken in a number of cases where the mental condition of an offender requires the imposition of a custodial sentence because of the gravity of the offence committed but justifies the suspension of the whole of that sentence.  Mr Briegel further submits that, in the circumstances of this case, the length of sentence, one of eight months' imprisonment, was too long.
      We reject that second submission.  This was a serious offence, committed by a man who has in the past been found to be in possession of prohibited items such as blades.  However, we accede to the final submission. We conclude that this is a case in which the highly exceptional circumstances support the imposition of a suspended sentence.  The basis for that is that, should the appellant's condition deteriorate, it will be for  him to seek immediate help.  If he chooses not to do so and in consequence commits further offences, he has only himself to blame for that situation.  We propose to give effect to those conclusions by quashing the sentence of eight months' imprisonment and substituting therefor a sentence of eight months' imprisonment, but that that sentence will be suspended for a period of twelve months.  The appellant must fully understand that if he commits any further offence punishable by imprisonment in the course of the next twelve months he is liable to have that sentence, or part of it, brought into effect. No doubt if he were unwise enough so to offend, the sentencing court would have regard to the length of time he has already served in prison.  That will be a matter for that court and not for this.  No doubt counsel will fully explain to the appellant the full import of the sentence that we have imposed.
 
LORD JUSTICE OTTON:  Stand up, will you, Mr Brown?  I hope you understood what has happened.  Your sentence will be suspended for twelve months, which means you will be released immediately.  Mr Briegel will come and see you to explain precisely what that means.  Do you follow?
 
 THE APPELLANT:  Yes, your Honour.