No. 2002/03068/R3
Neutral Citation Number: [2003] EWCA Crim 1824
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Thursday  12  June  2003
B e f o r e:

LORD  JUSTICE  JUDGE

MR  JUSTICE  HEDLEY

and

SIR  BRIAN  SMEDLEY

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ATTORNEY GENERAL'S REFERENCE No. 71 of 2002

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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W. M.
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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
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MR E BROWN appeared on behalf of the ATTORNEY GENERAL
MR T BANKS appeared on behalf of THE OFFENDER
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J U D G M E N T
Thursday 12 June 2003
LORD JUSTICE JUDGE: 
1.	This is an application under section 36 of the Criminal Justice Act 1988 by Her Majesty's Attorney General. We grant leave. The offender is W.M.. On 1 May 2002, in the Crown Court at Reading before His Honour Judge Lait, he was sentenced to a total of three years' imprisonment. 
2.	This is a troublesome case. The offender is now 23 years old. He was born on 16 November 1979. On 1 May 2002, he pleaded guilty to three offences: first, abduction with intent to have unlawful sexual intercourse, contrary to section 17(1) of the Sexual Offences Act 1956; second, indecent assault; and third, possession of an imitation firearm with intent to cause fear of violence. For the offences of abduction and indecent assault, he was sentenced to two years' imprisonment, and for possession of the imitation firearm with intent, he was sentence to three years' imprisonment. All the sentences were ordered to run concurrently. In addition, the offender was ordered to register with the police as a sex offender for ten years. 
3.	The facts of this case are distressing, but it is necessary to set them out in some detail. At about 8.05am on a Monday in February 2002 a 13 year old schoolgirl, dressed in her school uniform, was walking from her home through the middle of a large green. This was her ordinary route to school. It took her past the home of the offender. The offender was not known to the victim, who was walking to the place where she anticipated meeting the school bus. While she was on her way there she heard a man behind her. She stopped to read a text message on her mobile phone. After she had stopped, the offender overtook her and stopped five feet ahead of her. She walked on past him. He continued walking behind her. Eventually she felt something hard between her shoulder blades. The offender told her it was a gun. He said words to the effect: “If you scream or try to run away, I'll kill you.” 
4.	He ordered her to walk to a house which he shared with his parents. When they arrived at the house he opened the door. He ordered her upstairs on to landing. There he told her to take off her clothes. She described herself as very scared, but she complied. She turned around. She noticed the offender watching her and that he held a silver hand gun which was pointed at her stomach. During the later investigation by the police they recovered a number of imitation firearms from the offender's bedroom and the victim was able to identify a Bruni automatic 8mm pistol as the weapon which she had seen pointed at her stomach. It was in fact a decommissioned firearm, incapable of firing. 
5.	The victim removed her clothes. When she was naked the offender told her that he wanted her to keep her tights on. So he put them back on. He then told her to go to the bedroom. In the bedroom he told her to kneel on the floor, sitting up straight. He knelt behind her, touched and fondled her breasts for a short time before momentarily fondling her buttocks. The victim described the physical actions as gentle. She added that it appeared as though the offender did not know what he was doing. She was then told to remove her tights. She pulled them down to her knees before stopping. She asked the offender what he was going to do to her. He replied, “Rape you”. She began to plead with him, asking him to leave her alone. The offender himself was later to describe her state as one of “wide‑eyed terror”. Perhaps because of that he then said to her, “You can either stay here and I will rape you, or go and change and leave”. The victim went to the landing to get dressed. As she left, she was told by the offender to remove her tights again and leave them on the landing. He told her not to tell anyone. She left by the front door and he followed her. 
6.	The girl went straight back home to her mother who described her daughter falling through the door in hysterics. She told her mother what had happened. The police were called. When she was talking to the police the victim was able to point out the house at which this nasty incident had taken place and to give a description of the offender. 
7.	Later that morning the offender was arrested. His house was searched, as we have already indicated. In addition to the gun which was used in the course of this incident, in a box on top of his bedroom wardrobe the police found the young victim's tights. 
8.	On arrest the offender recounted much of what had happened to the doctors who were called to examine him at the police station. According to what he was saying then, he could not remember how the girl had become stripped of her clothes. He spoke of hearing a male voice in his head. He said, “The voices told me to abduct and rape the girl”. He added, “When I saw her kneeling in front of me I realised that what I was doing was wrong. So I stopped”. He was deemed not to be fit for interview. He was, however, charged. 
9.	The victim made a victim impact statement. Nothing in it comes as any surprise. She said that after the incident her life had changed. She was embarrassed about what had happened and about what she had been made to do, and embarrassed that her parents knew all the details of the incident. She was troubled about the fact that her own parents had been through the incident, but also ‑‑ and this was a sign of great magnanimity ‑‑ she was concerned about the offender's parents. She described how she had lost her confidence. It was some time before she was able to pluck up the courage to walk to school on her own. At school she found it difficult to concentrate. She had problems with sleeping and she suffered from nightmares when she fell asleep. She was extremely concerned at the offender being released because he only lived a very short distance away from her own. That fact that she could have been raped constantly went through her mind.
10.	In the course of mitigation before the court at Reading it was stated that the offender and his family already had a firm intention to move away from the area. 
11.	The offender was a young man of previous good character. No pre‑sentence report was available to the judge, but a psychiatric report prepared by Dr Duggan was presented to him. The report described how the offender, although suggesting that he had no recollection of the events, suffered nightmares which depicted a scene similar to that described by the victim. The psychiatrist described him as having a solitary lifestyle and intermittent contact with the psychiatric services since the age of 12. He described hearing voices in his head which took him over and referred to a wish to hurt others. He was assessed as having a personality disorder “schizo-typal as evidenced by his long‑standing social withdrawal, eccentricity and odd beliefs about being taken over, suspiciousness, ruminations about rape and hurting others.” 
12.	The aggravating features of this case are self‑evident. The victim was a 13 year old schoolgirl, walking to school, abducted from the street by a stranger and forced at gun‑point to strip and expose herself to whatever it was that the offender intended do. She was threatened with rape and, without repeating the details of the incident, although it is true that no physical harm was done to her, the ordeal must have been particularly frightening for her. She has suffered seriously in consequence. 
13.	It is an unusual feature of this case that, having the victim at his mercy, the offender released her voluntarily. He pleaded guilty at an early stage, having made no attempt to avoid detection, and he was a young man of good character. 
14.	We do not think it helpful to look at previous decisions of this court which do not replicate the particular and rather unusual facts of this case. When the application came before the court differently constituted it seemed obvious to us at that time that we needed a much more detailed analysis of the offender's psychiatric condition. We were concerned about the level of risk to the public, and in particular to girls of about the age of 13 or 14 which the offender might represent. 
15.	We have been supplied with two further medical reports, one from Dr Meux, dated 30 December 2002, and a second from Dr Dunn, dated 2 April 2003. We are grateful to both doctors for the care with which they have addressed the problem posed by this offender. It will be seen that there is a slight difference of emphasis between them. Both are agreed that the offender suffers from schizo-typal disorder. He also suffers from paedophilia. That is not a mental illness; nor does it amount to a personality disorder for the purposes of the Mental Health Act 1983. Accordingly, he cannot be detained under the Mental Health Act on the ground that he is a paedophile. Paedophilia can be said to amount to a psychopathic disorder and it is a life‑long disorder. According to Dr Meux's view, at the very least the offender represents a moderate risk even in the context of a structured setting, but, he emphasised, he represents a very serious risk to peri‑pubertal girls. If he becomes an inpatient, his treatment will have to take place in a hospital in which there are facilities of high security. Dr Meux's particular concern is that if the offender were to abscond from a medium security hospital ‑‑ and obviously the risk of him absconding from a medium security hospital is greater than it would be from a high security hospital ‑‑ he would then, and particularly after such an escape, present a “very significant risk” to young females. 
16.	So far as Dr Dunn's diagnosis is concerned ‑‑ and again we acknowledge immediately that our brief summaries do not do full justice to the care with which the doctors have approached the problem ‑‑ actuarially the offender is a high risk offender so far as peri‑pubertal girls are concerned. So far as the assessment of him as an individual, as opposed to an actuarial consideration, Dr Dunn was not prepared to express a final view because he believed that the risk represented by the offender was not clear; he required further psycho‑sexual assessment as an inpatient. Dr Dunn believed, doing the best he could with the material he had, that he represented a grave but not an immediate risk. Accordingly, Dr Dunn recommended that an assessment should be carried out under sections 47‑49 of the Mental Health Act in conditions of maximum security. 
17.	We have a report from the Acting Chairman of the Admissions Panel to Broadmoor Hospital. The last paragraph of that report reads: 
“A further suggestion put forward at the Admissions Panel was that Mr M. might be considered suitable for admission for the pilot DSPD service at Broadmoor Hospital (Dangerous and Severe Personality Disorder). The admission criteria to this specialist service are not the same as to the high security hospital. The DSPD Service is currently assessing for admission under Section 47/49 of the Mental Health Act 1983 prisoners who are severely personality disordered who represent a high risk of sexual assault against children and who have a significant period of imprisonment left to serve. Mr M. appears to meet the first two criteria. If the third were also to apply, the DSPD service would be willing to assess Mr M. with a view to his admission to the DSPD pilot ward. The assessment could occur either whist Mr M. is in prison or on Section 28 of the Mental Health Act 1983. The DSPD Service would not currently admit patients under Section 37 of the Mental Health Act.” 
18.	Accordingly, the criteria the criteria to justify an order under section 37 of the Mental Health Act, and in particular with a restriction under section 41, which would be a minimum condition that a sentencing court could apply, are not available to us. 
19.	The case before us is different from the case as it was before Judge Lait. We have much more information from distinguished psychiatrists about the offender and the risk that he represents to the public. We cannot simply pass a sentence on him in order to make him eligible for the pilot scheme to which the Chairman of the Admission Panel has referred. What we can do, and what we have decided that we should do, is to examine the sentence imposed by Judge Lait in the light of the material before us. We have come to the conclusion that, notwithstanding the mitigation available to the offender, the sentence actually imposed on him was too lenient and unduly so. The opposite was not contended for before us. 
20.	We have considered whether, quite separately from the sentence for the offence in the circumstances already outlined, we should consider exercising the court's Power of the Criminal Courts Sentencing Act 80 (2) (b) of the Act to reflect the need of the public for protection from the offender. We have concluded beyond doubt that the public does need such protection and in particular that young females do. 

21.	Finally, we have reflected on the powers available to us under section 85 of the Act. Having reflected on all those matters and the material before us, the conclusion to which we have come is that the appropriate sentence now to be imposed on the offender should be a sentence imposed under section 85 of the Act for a period of ten years for indecent assault. That will be divided so as to reflect this analysis: for the offence itself, a sentence of five years' imprisonment and a further three years for the purposes of section 82(b), making a total sentence of imprisonment to be served of eight years. 
22.	The medical reports from Dr Meux and Dr Dunn must accompany this offender. They must be sent to the prison in which he is currently serving his sentence for the personal attention of the governor, who must be also be supplied with a copy of this judgment.