Practice and Procedure


PUBLISHED June 12, 2003

On an Attorney-General's reference the court could not pass a sentence merely to enable eligibility for the pilot Dangerous and Severe Personality Disorder scheme (DSPD) at Broadmoor hospital. However, a total sentence of three years for abduction, indecent assault on a 13 year old girl and possession of a firearm was unduly lenient and a sentence of eight years was appropriate.Application by the Attorney-General to refer under s.36 Criminal Justice Act 1988, a total sentence of three years for abduction with intent to have sexual intercourse, indecent assault on a female and possession of a firearm with intent to cause fear. The defendant ('M') pleaded guilty on 1 May 2002 to the offences and was sentenced by HH Judge Lait. In February 2002 the victim ('V') a 13 year old school girl was walking to school and was followed by M. M pressed a gun to her back and told her if she screamed he would kill her. He made her walk to his house, forced her to go upstairs and made her take her clothes off. M watched her undress, pointing the gun at her stomach. V was made to kneel on the floor, he knelt behind her and touched her breasts and buttocks. M said he was going to rape her and she pleaded with him to let her go. M told her she could either stay and he would rape her or she could go. V got dressed and left, she ran home to her mother. M was arrested and told a police doctor that he had heard a male voice in his head which told him to abduct and rape V, however, when she had knelt down he realised it was wrong. He was deemed unfit for interview but was charged. When sentencing the judge had only a brief psychiatric report before him which referred to M as being schizotitle. The Attorney-General referred the sentence as unduly lenient and the reference had been previously adjourned by the Court of Appeal to allow a more detailed analysis of M's psychiatric condition and to assess the risk to the public, in particular 13 to 14 year old girls. The court had two reports from two different doctors. The first stated M was suffering from schizotitle disorder and also suffered from paedophillia. However, paedophillia was not a mental illness and M could therefore not be detained under the Mental Health Act 1983. He posed a very serious risk to peri-pubertal girls and he needed treatment in hospital with high security facilities. The other report recommended that M should be admitted for assessment under ss.47 to 49 of the 1983 Act in conditions of maximum security. A possibility was recommended by Broadmoor hospital's admissions panel, namely a pilot scheme called the Dangerous and Severe Personality Disorder scheme ('DSPD'). The DSPD was currently assessing for admission, under ss.47 to 49 of the 1983 Act, prisoners who met three criteria; (i) had severe personality disorder; (b) represented a high risk of sexual assault against children; and (c) had a significant period of imprisonment left to serve.HELD: (1) On the evidence the criteria for an order under s.37 of the 1983 Act and restrictions under s.41 were not available to the court. The case was different to the case before the sentencing judge as the present court had the benefit of much more information from psychiatrist's reports of the risk represented by M. (2) The court could not just simply pass a sentence to make M eligible for the pilot scheme. However, what it could do was to examine the sentence imposed in light of the material now available. Notwithstanding the mitigating features of the early plea of guilty and M's previous good character the sentence passed was unduly lenient. (3) The appropriate sentence under s.85 Powers of Criminal Courts (Sentencing) Act 2000, should be one of ten years for the indecent assault. That should be divided to reflect five years for the offence itself and three years for the purpose of s.80(2)(b) of the 2000 Act and the need to protect the public, giving a total sentence of eight years imprisonment.Leave to refer granted, application allowed.