No: 2004/0957/A0 
Neutral Citation Number: [2004] EWCA Crim 3238
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 25 November 2004
 
B E F O R E:
 
LORD JUSTICE LAWS 
MR JUSTICE DAVIS 
 
THE RECORDER OF CARDIFF
(His Honour Judge Griffith Williams QC)
(Sitting as a Judge of the CACD)
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R E G I N A 

-v- 

A.N.
 
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MR J ROBERTSON appeared on behalf of the APPELLANT
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J U D G M E N T
1.	MR JUSTICE DAVIS:  The appellant, A.N., is a man now aged 42.  On 28th November 2003 at the Crown Court at Canterbury the appellant pleaded guilty to a count of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a class A drug, which in fact was cocaine.  On 16th January 2004 he was sentenced by His Honour Judge Van der Bijl to a term of 12 years' imprisonment.  Against that sentence he now appeals on the certificate of the sentencing judge that the matter was fit for appeal.  
2.	The relevant facts so far as the actual offence is concerned are of the simplest and can be very shortly stated.  On 22nd March 2003 the appellant arrived at Dover on a ferry from Calais.  He was stopped by Customs Officers and his Mercedes A Class car was searched.  In a hidden compartment underneath the car officers found approximately 30 kilogrammes of cocaine, which was equivalent to around 15.38 kilogrammes at 100 per cent purity.  The street value was estimated at around £1.8 million.  The appellant had travelled through France to collect the drugs and had then returned to the United Kingdom with them, on the instructions of a man called Mohammed who was known to the appellant.  
3.	During the course of various attempts to interview the appellant it became clear that he did not understand the meaning of the caution and also that he might be suffering from some form of mental illness.  The interviewing process was eventually discontinued and he was then charged.
4.	Before the sentencing judge were various psychiatric reports from a number of approved psychiatrists.  These stated that the appellant had a long history of psychiatric illness and was suffering from schizophrenia.  Two of the psychiatrists (they in fact being psychiatrists at the same unit) recommended a disposal under section 37 of the Mental Health Act 1983 and stated that a hospital bed was available for that purpose.  The judge declined to take such a step.  Instead he decided to impose the custodial sentence of a term of 12 years, as we have indicated.
5.	It is, we think, important to set out the judge's detailed and careful explanation for so deciding, as contained in his sentencing remarks:
"I want to deal with the principle - this was a plea of guilty to a substantial quantity of cocaine in full knowledge and awareness.  There is no causal link between mental condition and the offence here, much less so than in an offence of basic or specific intent, murder, manslaughter or rape where there can always be a mental capacity issue which may be relevant.  The clear state of mind of a drug importer is that he knows once he pleads what he is doing.  I emphasise that because all the cases presented to me seem to involve some mental intervention (sic) by the Court of Appeal designed to prevent recurrence, or to ensure that the public is protected.  Such considerations do not arise here.  Clear guidelines are indicated for drug importation from which it is very difficult to depart since they are designed to reflect the offence and not the offender, and it has been noted in the past that even issues such as good character do not count for much.  The sentences can be extremely high, frequently higher than rape and even manslaughter (and sometimes longer than the release date from murder).  The reason that they are so high, depending on the amount involved, is because of the desire of the Courts to protect society as a whole, and such sentences are not designed to take into account any personal circumstances.  
I have been assisted greatly by the authorities provided by counsel for the defence all of which deal with cases with a degree of mental health intervention.  I am afraid that I am not concerned with that.  I must sentence for the offence and that necessarily means that I must pass the usual sentence irrespective of the defendant's mental capacity or incapacity.  I do not believe that any other sentence or order can be justified.  
Sentencing for importation is fixed to a policy of deterrence and it is also a fact that most of those caught are couriers who have a variety of unhappy reasons for becoming involved.  Many are vulnerable people who the drug dealers target.  That is the nature of the trade and the court must take harsh steps to prevent this being available to ruthless men who are keen to get drugs onto the streets here.  
I have read the psychiatric reports dealing with fitness to plead and paragraphs 5.1 and the attendant medical forms which indicate that he suffers from schizophrenia.  It is a fact though that he travelled to France and back to the UK and is willing to bring back class A drugs.  He was aware (enough) to have claimed to have visited his sister and to be running a kebab shop.  The report says that he needs treatment and that there should be a section 37 Mental Health Act order.  Such a sentence or disposal would enable him to be released when he is psychiatrically fit and would not reflect the sentencing policy on drugs to which I have referred.  The report in its final paragraph indicates that there are ways that he can be treated within the prison system, and I have no doubt that is the case.  Only a prison sentence can therefore be justified.  No other sentence or order could be justified in relation to this type or this amount of cocaine." 
Then a little further on, the judge said this: 
"There can be no other sentence.  You had your eyes open and you brought the car back and when asked you said that you were not carrying anything.  I will take into account that Mohammed clearly has got you involved with taking class A with the knowledge that you were not well, and that he could turn you and persuade you to bring in drugs.  That is substantial mitigation.  I give maximum credit for pleading and for the fact that it will not be easy for you in prison, although I am sure that the prison authorities will help."
6.	On behalf of the appellant it is submitted by Mr Robertson that the judge was simply wrong in principle to impose a custodial sentence, or at all events that he erred in the exercise of his discretion in doing so.  Rather, submits Mr Robertson, the judge should have made a hospital order as recommended by the psychiatrists.  In the alternative, Mr Robertson submits that a sentence of 12 years' imprisonment was excessive as a matter of length.
7.	Mr Robertson does not dispute the finding of the judge that there was no causal connection, if one may put it in that shorthand way, between the mental illness and the commission of this particular offence.  Mr Robertson points out, however - correctly in our view - that even if in any particular case there is no causal connection between the mental illness and the offending in question, it does not necessarily follow as a general proposition that an order should not be made under section 37 of 1983 Act. McBride (unreported) 13th January 1972, cited at Thomas' Current Sentencing Practice, F2-2A, is, by reference to the statutory predecessor of section 37, authority for that proposition, if authority be needed; and that in any event accords with the wording of section 37 and the discretion expressly conferred by such section on the sentencing judge.
8.	The next stage of Mr Robertson's argument is to draw on various authorities set out in Thomas' Current Sentencing Practice at F3-2L.  These authorities, we think it worth emphasising, are contained under a heading reading as follows: "Where an offender is suffering from a mental disorder which is susceptible to treatment and a place is available in a special hospital the court should not impose a sentence of life imprisonment with the intention of preventing the release of the offender by the Mental Health Review Tribunal."  Such a position does not of course directly apply to the present case.  Nevertheless, Mr Robertson draws our attention to a statement by Lord Lane, CJ, in the case of Howell (1985) 7 Cr.App.R (S) 360, where Lord Lane said:
"... in circumstances such as these, where medical opinions are unanimous and a bed is available in a secure hospital, a hospital order [under section 37 of the Act] should be made together with a restriction order [without limit of time] under section 41."  
We note that circumstances such as those there referred to are different to the present case.  The same can be said of other decisions drawn to our attention by Mr Robertson, being Mbatha (1985) 7 Cr.App.R (S) 373, Fairhurst [1996] 1 Cr.App.R (S) 242 and also the case of Birch (1989) 11 Cr.App.R (S) 202 where Mr Robertson drew our attention in particular to certain comments of Mustill LJ, giving the judgment of the court, at page 215.  All those cases as cited to us involved what we might call a causal connection between the mental illness in question and the actual offending.  It is also perhaps worth noting that those cases involved the imposition of a restriction order under section 41 as well as the imposition of a hospital order under section 37.  
9.	The final stage of Mr Robertson's argument is to draw attention to the psychiatric reports.  In a report dated 7th May 2003, Dr Baxter, consultant forensic psychiatrist of the Three Bridges Unit of the West London Mental Health Team, referred to the appellant's history of depressive illness.  It was said amongst other things that his father who was Egyptian had a psychotic illness and that a sister had committed suicide.  The appellant himself had had a troubled and fractured personal life, at least since coming to the United Kingdom in 1989.  He was at that time, that is to say May 2003, assessed by Dr Baxter as having an acute psychotic illness and indeed as being unfit to plead.  Urgent admission to a secure hospital under section 48 of the 1983 Act was proposed.  A similar recommendation was made by Dr Phelan, consultant psychiatrist, by a report dated 29th May 2003.  
10.	By a report dated 29th September 2003, Dr Sangosanya, a registrar in forensic psychiatry at the Three Bridges Unit, noted aggressive and disorientated behaviour on the part of the appellant.  There were also symptoms of fantasising and suicidal ideation.  A major mental illness in the form of schizo-effective disorder was diagnosed.  The appellant's condition was such as to require regular medication and to be of a nature and degree that in the opinion of the doctor required hospital treatment.  As a result of his good response to medication, however, the appellant was assessed as by now being fit to plead.  
11.	On 5th January 2004, Dr Sangosanya provided a further detailed report.  He confirmed that the appellant suffered from schizo-affective disorder.  Auditory hallucinations and persecutory and grandiose delusions were noted.  In-patient treatment in a 24-hour care nursing environment was recommended to stabilise his medical condition, to reduce the risk to himself and others.  That report concluded in this way:
"On the basis of his health, safety and protection of others, I would respectfully recommend that Mr N. be detained under section 37 MHA 1983 in order for this treatment to be continued." 
Then he noted that a bed was available.  He went on:
"His mental illness will require treatment for the foreseeable future and is likely to be characterised by periods of relapses and remissions.  The long-term prognosis will depend on his ability to maintain a therapeutic relationship with the team, refrain from using illicit substances, and comply with his treatment plan.  
In the event that Mr N. is given a custodial sentence, there is of course provision for him to be transferred to hospital under section 47 MHA 1983 should he relapse into mental illness.  In my opinion, this would be detrimental to his mental health.  There is a significant risk that he will refuse medication and relapse to mental illness as there will be no statutory requirement that he receives the treatment he needs. There is also a risk of relapse to substance misuse and associated risks to himself and others." 
12.	Further short psychiatric reports dated 7th January 2004 from Dr Sangosanya and 8th January 2004 from Dr Baxter were also before the sentencing judge.  These again recommended a hospital order under section 37 of the 1983 Act.  The illness was there described as severe and enduring, characterised by relapses and remissions.  It was also observed that because of his lack of insight the appellant was "unlikely to receive treatment voluntarily".  Various psychiatric reports have been obtained since sentence was passed from Dr Ardron, Dr Feeney and Dr Baxter.  These indicate a degree of relapse as a result of non-compliance with his medical treatment, albeit the appellant's overall condition is not as severe as it was in 2003.  These reports also refer to a continuing risk to the appellant himself and to others in the absence of the appropriate treatment and medication; and a recommendation for a hospital order is maintained, albeit with an alternative recommendation (if the custodial sentence is to stand) of a transfer to hospital under the provisions of section 47 of the 1983 Act.
13.	Founding himself on all of that, Mr Robertson submits that a hospital order should have been made.  That was the recommendation of the psychiatrists and there was no good reason, he submitted, for that recommendation not to be followed here.  He accepts, of course, that this was not a case where a life sentence was being imposed to prevent release by the Mental Health Review Tribunal, and he also accepts here that there was no causal connection between the mental illness and the offending.  Nevertheless, he seeks to extract a general proposition from cases such as Howell, Mbatha and others as cited as in effect requiring the judge to have made a hospital order in this particular case.
14.	We do not agree.  Nor do we agree that there is in truth any real point of principle involved here.  Section 37 of the 1983 Act confers a discretion which may be exercised where (as here) the statutory preconditions are met.  In the present case it is indeed of the greatest significance to the ultimate disposal that, as the judge found, there was no causal connection between the mental illness and the offending.  The appellant knew at the time of the offending what he was doing.  He knew that it was wrong and he went into this offending "with his eyes open", as the judge put it.  Further, as the judge observed in the course of his sentencing remarks, in this field the courts tend to focus primarily if not solely on the offence itself, and it is the case, for clear policy and deterrence reasons, that factors personal to the offender ordinarily tend to account in the usual case for relatively little in this context.  We would not go so far as to say that where, as here, there is no causal connection between the mental illness and the offence of drug importation, and where, as here, the offence of drug importation was committed by the offender knowingly with his eyes wide open, then a hospital order can never be justified.  There is after all a discretion in the court under the terms of section 37 itself.  But what we would say is that, in circumstances such as the present, we at present find it difficult to envisage a case where the discretion to make a hospital order will be likely to be exercised.
15.	For the avoidance of doubt we would not wish to be taken as impliedly endorsing any converse proposition: that where there is a causal connection between the mental illness and the offence of drug importation then, if the statutory preconditions are otherwise met, a hospital order ordinarily will be appropriate.  In our judgment all must depend on the circumstances of each case.  We suspect that (assuming fitness to plead) such a factual situation is or ought to be likely to be quite rare, even allowing for the ruthlessness and ingenuity of those masterminding drugs importations and even allowing for the ingenuity of couriers astute to run every possible argument in defence or mitigation.  But even in such a situation, we think that the sentencing court will still be very careful in deciding whether to make a hospital order pursuant to its discretion under section 37; and at all events will certainly need to bear very carefully in mind the important policy considerations which cause the courts in dealing with offending of this particular kind to focus primarily on the offence itself and on the need to retain effective deterrence.  
16.	It is also to be borne in mind in this context that treatment is, or at least ought to be, ordinarily available to mentally affected offenders when in prison.  Further, powers (for example under section 47 or section 49 of the 1983 Act) are available so that their transfer to hospital can be arranged as appropriate.  Indeed, as we have said, the latest reports before us allude to this and recommend this step with regard to the appellant in the event that a custodial sentence is maintained.  In the present case, moreover, it may be noted that the present assessment is that the appellant can and does respond to medication.  It would in the present case be disconcerting if, were a section 37 Hospital Order to be made in his case, there could come a time - very possibly in the next few months or so, as the reports suggest - when the appellant could therefore be released from hospital.  Quite apart from considerations of the adequacy of punishment and deterrence were that to be the result, there is the further point that if, as the reports indicate is likely, he thereafter voluntarily failed to continue treatment, he then would be likely to relapse, to the potential harm both of himself and of the public: which, as the reports have mentioned, could be a real risk in the absence of continuing treatment.  In this context, we might add, no report has recommended the imposition of a restriction order and Mr Robertson has eschewed such a proposal.
17.	For all these reasons, we conclude that the judge exercised his discretion properly in declining to make a hospital order in this case.
18.	As to Mr Robertson's alternative submission, that a custodial sentence of 12 years' imprisonment was excessive in terms of length, we can deal with that shortly.  The judge in imposing such a sentence expressly took into account every possible mitigating factor, including the plea, including the influence of the principal Mohammed on the appellant and including the appellant's personal circumstances and the position that he faced if put in prison.  Given the huge quantity of drugs involved and given that the appellant went into this drugs offending with his eyes open, we do not think that it can be said that his sentence of 12 years' imprisonment is excessive.  
19.	In the result we can see no fault in the conclusions reached by the judge.  The appeal is dismissed.