Rendell, R. v

Where an offender satisfies the medical conditions for a hospital order, the sentencing court must decide the most suitable disposal by considering the need for treatment, the extent to which the offending is attributable to the mental disorder, the need for punishment, and public protection both on release and afterwards. A penal sentence remains the usual course and departure requires sound reasons.

The comparative protection afforded by a hospital order with restrictions, a hospital direction or an imprisonment regime is a fact-sensitive question. It requires evidence of the actual release, supervision, treatment and recall arrangements. Where current psychiatric evidence establishes that treatment and monitoring under Mental Health Act 1983 orders would best protect the public, and the punitive element has been served, an appellate court may quash an indeterminate sentence and substitute orders under sections 37 and 41.

The appellant pleaded guilty at Oxford Crown Court to wounding with intent and received an indeterminate sentence of imprisonment for public protection under the Criminal Justice Act 2003, with a three-year minimum term. The sentencing judge had no psychiatric evidence that a mental-health disposal was available.

After completing the minimum term, the appellant was transferred from prison to hospital under the Mental Health Act 1983. Fresh psychiatric evidence diagnosed a personality disorder, established that hospital treatment was appropriate and available, and described substantial therapeutic progress. The appellant appealed out of time against sentence and sought admission of that evidence. The central issue was whether the indeterminate sentence should be replaced by a hospital order and restriction order.

1. Appeal allowed. The court admitted the fresh psychiatric evidence under section 23(2) of the 1968 Act. It quashed the indeterminate sentence of imprisonment for public protection and substituted orders under sections 37 and 41 of the Mental Health Act 1983.

2. The conditions in section 37(2)(a) were met, both at sentence and on the appeal. The appellant had a mental disorder, detention in hospital for medical treatment was appropriate, and treatment was available. His improvement in hospital demonstrated both his need for treatment and its effectiveness.

3. Applying the approach in R v Vowles [2015] EWCA Crim 45, the court considered treatment need, the relationship between disorder and offending, punishment, and public protection under the alternative release regimes. The reference in that approach to illness meant mental disorder within the Act. Although the appellant chose to consume alcohol and drugs, the court accepted that his personality disorder formed part of his inability to cope with stress and emotions, including through substance misuse. His culpability for the index offence was therefore moderate.

4. The comparative public-protection question was fact-specific. On the evidence, conditional discharge under sections 37 and 41 would enable robust conditions, continuing specialist treatment and routine substance testing. Those arrangements were better suited to monitoring the risk factors central to the offending than a life-licence regime.

5. A penal sentence is ordinarily imposed and sound reasons are required to depart from it. Those reasons existed here: the offence was serious but culpability was moderate; the appellant had served its punitive element and had been detained for twice the minimum term; and the hospital-order regime would most effectively protect the public.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted orders under sections 37 and 41 of the Mental Health Act 1983.

• Oxford Crown Court (HHJ Mowat): On 28 March 2012 imposed an indeterminate sentence of imprisonment for public protection, with a three-year minimum term, after the appellant pleaded guilty to wounding with intent.