Philip, R v (Rev 1)

When sentencing an offender who has committed serious offending while suffering from a severe mental disorder, the court must balance the need for treatment, the extent to which the disorder caused the offending, the need for punishment, and the need to protect the public. Under section 166(2) of the Criminal Justice Act 2003, a community sentence may be appropriate even where the seriousness of the offence would normally require custody. Effective community treatment and supervision may rationally provide the better means of protecting the public. An exceptional community order will not be interfered with on an unduly lenient sentence reference where the sentencing judge has carefully undertaken that assessment on the medical evidence.

The offender pleaded guilty in the Crown Court at Inner London to sexual assault contrary to section 3 of the Sexual Offences Act 2003 and false imprisonment with intent to commit a sexual offence contrary to section 62 of that Act. The offences arose from a sustained attack on a stranger. The offender was acutely psychotic at the time and suffered from chronic paranoid schizophrenia.

The sentencing judge imposed concurrent three-year community orders with a mental health treatment requirement, rehabilitation requirement and curfew, together with protective orders. The Solicitor General applied under section 36 of the Criminal Justice Act 1988 for leave to refer the sentences as unduly lenient, contending that immediate custody and an extended sentence were required. The central issue was whether the exceptional community disposal inadequately reflected the gravity of the offences and public protection.

1. Leave to refer the sentences was refused. The offending was extremely serious and terrifying for the victim. The court nevertheless held that the Reference had not adequately addressed the sentencing effect of the offender’s severe mental disorder.

2. Applying R v Edwards and Others [2016] EWCA Crim 595, the court identified four required considerations: the offender’s need for treatment; the extent to which the disorder caused the offending; the need for punishment; and the need to protect the public. The sentencing judge had carefully addressed each consideration. He first assessed the custodial sentences that would have been appropriate without the mental disorder and gave full credit for the guilty pleas.

3. The medical evidence showed that the offender was acutely psychotic at the time of the offences, although he knew that his conduct was wrong. It also showed that continued Clozapine treatment, engagement with community services and supported accommodation were important safeguards. Custody risked disrupting that treatment and causing a relapse. The judge was entitled rationally to conclude that continued support in the community was the better way to manage the danger to the public.

4. The court endorsed the judge’s reliance on section 166 and section 166(2) of the Criminal Justice Act 2003, which permit a community sentence for a mentally disordered offender despite the normal seriousness threshold for custody. The comparable section 62 authorities, R v Newton and R v Kight, gave little further assistance because sentencing depended on their particular circumstances.

• Court of Appeal (Criminal Division) — refused the Solicitor General leave, under section 36 of the Criminal Justice Act 1988, to refer the sentences as unduly lenient.

• Crown Court at Inner London — on 14 June 2019, imposed concurrent three-year community orders for sexual assault and false imprisonment with intent to commit a sexual offence, including a mental health treatment requirement.