R v Valdo Calocane

Where an offender’s mental disorder satisfies the conditions for a hospital order, the sentencing court must consider all available disposals, including a hybrid order. A hybrid order is not the default. The court must assess the need for treatment, the causal link between disorder and offending, the need for punishment, and public protection under the applicable release and recall regimes.

The need for punishment depends on both the gravity of the harm and the offender’s retained responsibility. Even exceptionally grave offending may properly attract a hospital and restrictions order without a penal element where responsibility is low, the offending is wholly attributable to mental illness, and that order affords better protection to the public.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient concurrent hospital and restrictions orders imposed on Valdo Calocane.

At Nottingham Crown Court, Turner J accepted guilty pleas to three counts of manslaughter by reason of diminished responsibility and three counts of attempted murder. The psychiatric evidence was unanimous that the offender had paranoid schizophrenia. It substantially impaired his rational judgment and self-control, and the offences would not have occurred but for the psychosis.

The judge held that a life sentence with a hospital and limitation direction under section 45A of the Mental Health Act 1983 was less suitable than a hospital order with restrictions. The central issue was whether that disposal, without a penal element, was unduly lenient.

1. Leave was refused. The concurrent hospital and restrictions orders were not arguably unduly lenient. The sentencing judge made no error of principle and his evaluative choice between a hybrid order and a hospital and restrictions order was properly open to him.

2. A sentence is unduly lenient only if it falls outside the range which a judge, considering all relevant factors, could reasonably regard as appropriate. The Solicitor General had to show more than a preference for the alternative hybrid disposal.

3. Where the conditions for a hospital order under section 37 of the Mental Health Act 1983 are met, the court must consider a hybrid order under section 45A before making a hospital order. However, following R v Vowles [2015] EWCA Crim 45 and R v Edwards [2018] EWCA Crim 595, a hybrid order is not a default. The court must assess treatment needs, the link between disorder and offending, punishment, and public protection, including the release and recall regimes.

4. The need for punishment depended on the gravity of the consequences and the offender’s retained responsibility. The harm and multiplicity of offences were of the utmost seriousness. However, the medical evidence established that retained responsibility was low, the schizophrenia was the sole identified cause of the crimes, and the preparatory conduct relied on as aggravation formed part of the same psychotic episode. The judge was therefore entitled to conclude that a penal element was unnecessary.

5. Public protection strongly supported the section 37 and 41 regime. A hybrid order could lead to imprisonment, less specialist community monitoring, and delay in recall and re-hospitalisation if the offender’s condition deteriorated. The hospital and restrictions order provided closer forensic supervision and swift recall. Given the treatment-resistant condition, extreme risk on relapse, and likely lifelong need for treatment, release into the community was very unlikely under either disposal.

• Court of Appeal (Criminal Division): On a Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court refused leave to challenge the sentences as unduly lenient.
• Crown Court at Nottingham: On 24 January 2024, Turner J imposed concurrent hospital orders under section 37, with restrictions orders under section 41, of the Mental Health Act 1983.