Singleton, R. v

LORD JUSTICE DYSON: I will ask Mr Justice Maddison to give the judgment of the court.

MR JUSTICE MADDISON:

1. On 10 January 2007, at the Crown Court at Birmingham, the applicant was convicted of one count of arson being reckless as to whether life would be endangered. On 15 February 2007 he was sentenced by His Honour Judge Hodson to five years' imprisonment (less the days that he had spent remanded in custody). His application for leave to appeal against sentence was referred by the single judge to the full court, which on 21 December 2007 granted leave and directed that a further report be obtained from the Probation Service before the appeal was heard. We now have that further report from Mr Mohammed Rahim.

2. The relevant facts are that the appellant, who had a history of depression and mental health problems, was released from a psychiatric hospital in May 2006 where he had been detained because of his bizarre behaviour. He returned to live with his parents at their home, a semi-detached house. His father (aged 77) was deaf and his mother (aged 73) was disabled and could only walk with the aid of crutches. At about 5.45am on 16 May 2006, whilst his parents were asleep downstairs, the appellant set a fire by lighting combustible material in a room on the first floor that was used to store cardboard boxes and the like. The smoke alarm went off and his father got up to investigate after his wife had told him that the alarm had gone off. He went to the kitchen and saw the appellant coming downstairs. He asked him if he had set the alarm off. The appellant was abusive towards him, so his father went upstairs and found the fire in the room. He summoned the fire brigade and waited in the house until they arrived. He then left with his wife while the fire was extinguished. It is apparent from photographs amongst our papers that significant fire damage was caused to the house.

3. The appellant was aged 40 when he was sentenced. He had no previous convictions. The judge had two reports from Dr Rao, a Consultant Psychiatrist instructed by the appellant's solicitors. The first of these reports indicated that the appellant had first come to the attention of the psychiatric services in 1999 when he had been diagnosed as suffering from paranoid schizophrenia. However, in December 2004 he had been diagnosed as suffering from alcohol dependency syndrome. Dr Rao's view was that there was no clear evidence of schizophrenia and that the appellant had probably been in an alcohol withdrawal state when he committed the offence of arson. Dr Rao thought that it would be unwise for him to return to his parents.

4. In an addendum to that report, Dr Rao said that the appellant was now quite rational, but had now been abstinent from alcohol for some time whilst in custody and had been taking his anti-psychotic medication for some months. Although in Dr Rao's opinion alcohol dependency syndrome was the primary diagnosis, he did not dispute that continuing medication for schizophrenia was appropriate.

5. The judge also had a pre-sentence report which recommended a community order with a supervision requirement. Also before the judge was a letter from the appellant himself, expressing regret for what he had done.

6. Passing sentence, the judge described this as a very serious offence. The appellant knew that his parents were in the house and that it would not be easy for them to escape. Arson was an extremely serious matter because the person who started the fire had no control over it. The appellant did not have the mitigation of a plea of guilty, but it was accepted that no accelerant had been used. The judge continued:

"The offence obviously is far too serious for any form of non-custodial sentence. Punishment must follow for this sort of offence. At the time you were depressed, there is no doubt about that, but you were not suffering from any psychiatric condition which would justify the making of a hospital order. Therefore imprisonment is the only option available to me."

7. Since sentence was passed, a number of further reports have been prepared. A report from the prison in which the appellant is serving his sentence states that he presents no problems. A report has been received from another probation officer, Mr Fish, who thought that the appellant would need work and support in relation both to alcohol abuse and to his mental health, as and when he was released. Subject to those precautions, it was the opinion of Mr Fish that the risk presented by the appellant could be managed successfully in the community.

8. There is also a report from Dr Simon Halstead, dated 25 November 2007. He takes a very different view of this case. In a carefully considered report he concluded, having reviewed all relevant medical records and having spoken to the appellant and his family, that alcohol was not the primary problem and that at the time of the fire the appellant was in a state of schizophrenic relapse exacerbated by his failure to take his medication. Dr Halstead said:

"I agree that a supervision order in the community, if properly monitored and maintained, is an appropriate way of managing Mr Singleton's illness and his risk to himself and to others."

9. Most recently we have the report from the probation officer, Mohammed Rahim, to which we have referred. He shares the view that the appellant would be manageable in the community and he recommends the appellant's release. He puts forward in his report a detailed plan for the supervision and management of the appellant's case when released.

10. The grounds of appeal settled by counsel are to the effect that the sentence was manifestly excessive and that the learned judge failed to have proper regard to various mitigating features, including the history of mental illness, to the dual diagnosis to which we have referred, and to the fact that mental illness clearly played a part in the offending. Moreover, the judge failed properly to have regard to the supportive attitude of the appellant's elderly parents and the extent to which the appellant's condition had improved in prison as a result of his abstaining from alcohol and taking proper medication for his schizophrenia.

11. As appears from the history of this case, a number of the features now urged upon us would not have been known to the judge who passed sentence. The only medical evidence available to the judge pointed much more strongly to alcohol dependency syndrome than to schizophrenia. However, as we have said, there is nothing in Dr Rao's reports to contradict a diagnosis of schizophrenia, and that is the carefully reasoned diagnosis of Dr Halstead.

12. In those circumstances, we accept that at the time he committed the offence the appellant probably was suffering from a schizophrenic relapse. Taking into account the combined opinions of all of the recent reports to the effect that a release into the community would be appropriate and manageable, we take the view that the appropriate course in this case would be to allow the appeal and to substitute for the sentence of imprisonment imposed by the learned judge a community order.

13. That is an order which will have to carry with it certain requirements. First, there will be a requirement of residence at the address of the appellant's parents. Secondly, there will be a supervision requirement, requiring him in general terms to be under the supervision of the Probation Service. Thirdly, in our view it is also appropriate to make, pursuant to section 207 of the Criminal Justice Act 2003, a mental health treatment requirement. The most recent probation report refers to the fact that it is anticipated that the appellant will receive assistance from both his general practitioner, Dr Sagoo, and from a consultant psychiatrist, Dr Mahmood, in relation to his mental condition which, for the reasons we have indicated, we take as incorporating primarily the schizophrenia, but also the alcohol dependency syndrome.

14. Having regard to the provisions of section 207, we make a mental health treatment requirement, requiring the appellant to submit to treatment by or under the direction both of Dr Sagoo and Dr Mahmood. We are satisfied, having regard to the written reports of Dr Rao and principally Dr Halstead, to which we have referred, that the mental condition of the appellant is such as requires, and may be susceptible to, treatment, but is not such as to warrant the making of a hospital order or a guardianship order within the meaning of the Mental Health Act 1983. We are also satisfied, having read the recent probation report, that arrangements have been made for the treatment specified in the order.

15. The statute provides that such a requirement can only be imposed if the offender has expressed his willingness to comply with such a requirement. We are conscious of the fact that we are giving this judgment in the absence of the appellant. Accordingly, we will make the mental health treatment requirement subject to the consent of the appellant to be notified to this court within a period of fourteen days.

16. It seems to us that with that combination of requirements, there is no need to make any specific reference to the low intensity alcohol module to which reference is made in the most recent probation report.

17. The community order to which we have referred will be of three years' duration. In that way the appeal is allowed.

18. LORD JUSTICE DYSON: The order will not take effect for fourteen days or until consent is given (if it is given in less than fourteen days). If consent is not given within fourteen days, then the order does not take effect.

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