R v Arbria Baja

On 22 August 2023 in the Crown Court at Guildford, Arbri Baja (“the offender”), born in April 1999, was convicted of one offence of rape contrary to section 1 of the Sexual Offences Act 2003. Sentence was adjourned more than once for the preparation of psychiatric and other reports. On 23 September 2024 the offender was made the subject of a hospital order pursuant to section 37 of the Mental Health Act 1983.

His Majesty's Solicitor General applies to refer the sentence to this court as unduly lenient pursuant to section 36 of the Criminal Justice Act 1988.

On the evening of 29 April 2021 C went to the home of the offender. He was then just 22 years old. He lived with his parents. C went to his home in order to meet a male friend to whom we shall refer as S. S was a friend of the offender. The purpose of the visit was to celebrate C's 19^th birthday. When she arrived, S and the offender were in a garden room separate from the main house. They had already drunk a bottle of vodka between them. As the evening progressed, all three drank a substantial amount of alcohol. At one point C and S had consensual sexual intercourse on a sofa bed in the garden room. The offender was not present when this happened.

At around midnight S passed out on the sofa bed. C and the offender continued to drink. C became "really quite drunk", as she described the position. As they were together in the garden room, the offender tried to kiss C. He made a comment about having a threesome involving C and S. C was taken aback by the comment. She went outside to get some fresh air. The offender followed her outside.

C went round the back of the garden room to go to the toilet. By now she was "really drunk". She pulled down her jeans and her knickers and crouched down. When she was in that position the offender grabbed her jeans. He ripped the jeans and broke one of the buttons. C asked the offender what he was doing. She told him to stop. His response was to make comments asking why his friend got to have sex with C when he got nothing. C tried to turn away from the offender. She lost her balance. The offender got hold of her. She again asked what he thought he was doing. She again said, "Get off me".

The offender ignored C. He pushed her so that she was bent over with her back towards him. From behind he pushed his penis into her vagina. C shouted, "Stop, stop, can you just stop?" The offender said, "No, it's fine". He ejaculated though C could not say where he had ejaculated. He was not wearing a condom. When sexual intercourse was over, C was able to go back into the garden room. At some point S woke up and said that he was going to get an Uber and leave the offender's house. C said that she would come with him. Once they were in the taxi C told S what the offender had done. When she got home, she contacted a friend to tell her something of what had happened.

In due course the police were informed. They interviewed C. They took her jeans. There was damage to the back of the jeans. A button was missing from the front of the jeans.

The offender was arrested on 18 May 2021. When interviewed, he said that C and S had been at his home. When S fell asleep there came a point at which he and C went out, each needing to go to the toilet. Outside they had removed the clothing from the lower half of their bodies. They were kissing and touching each other. The offender said he had not had sexual intercourse with C. He had not forced himself on her.

Scientific examination of C's jeans revealed semen deposited on various parts of the garment. Samples were taken from the crotch area, the lower back of the right leg and the back of the waistband. The DNA profile obtained from each of the samples matched the DNA of the offender. In the light of those scientific findings, the offender was interviewed again in December 2021. He said that he regularly masturbated on the sofa bed in the garden room. He believed that he had masturbated onto the sofa the night before the visit of C and S. He suggested that semen could have been transferred onto C's jeans from the sofa.

The offender was charged with rape in May 2022. His trial in 2023 took five days. In the course of the trial it was suggested to C that she had had consensual sexual intercourse with the offender. He did not give evidence in support of that proposition.

It was over a year between conviction and sentence. The judge ordered a pre-sentence report. There was already a psychiatric report from a Dr Acosta-Armas. The judge was told that this report would be updated. The case was listed for sentence on 29 September 2023. Dr Acosta-Armas by that date had prepared a further report. Unfortunately, an administrative error meant that no pre-sentence report was available. Sentence was adjourned until 1 December 2023.

On that date, although a pre-sentence report was by now available, an application was made on behalf of the offender to adjourn the sentence again because he was unwell due to a recent change in medication. The judge had a letter to that effect from a Dr Medjedovic, a clinician with the community mental health team.

On 2 February 2024 the case was listed for mention. It was said that the offender's mental health had deteriorated. The same doctor wrote another letter. A further adjournment was sought to allow a fresh psychiatrist to be instructed by the defence to prepare a report. The adjournment was granted. In due course the report dated 4 March 2024 from Dr Al-Taiar was obtained. The defence then instructed a second psychiatrist, Dr Lodhi. His report was served on 10 April 2024. The prosecution indicated that they did not intend to obtain psychiatric evidence of their own. Prior to the date of sentence, an addendum report dated 4 June 2024 was obtained from Dr Al-Taiar. It follows that, by the date of sentence, the judge had psychiatric evidence from a variety of sources.

The judge also had two victim personal statements from C and a statement from C's mother. They disclosed that C was not the person she once was. It was only in September 2023 that she was able to start to think about getting her life together. She had broken down with flashbacks, hallucinations and panic attacks many times and had had to put her life on hold. She had undergone private counselling and therapy. Relationships and friendships were now different. She was cautious and guarded. She found it difficult to trust people. She used to love going out and meeting people but now she kept herself sheltered.

The author of the pre-sentence report had seen the reports of Dr Acosta-Armas before writing their report. The offender's account was described thus:

When asked about the circumstances of the offence, the offender simply said that it was in the reports, ie, the psychiatric reports. In fact, the offender had told the psychiatrist that nothing untoward had happened. The author of the report also achieved no insight from the offender as to his sexual experience. The conclusion was that "the factors underpinning his risks of serious sexual harm are unknown and therefore present a significant challenge to be able to effectively manage within the community."

The report noted that the offender stated that at the time of the offence he was not experiencing any mental health problems at all. The psychiatric reports available then did not suggest that the offender's culpability was reduced due to poor or declining mental health during April and May 2021. The pre-sentence report concluded that the offender presented a high risk of serious harm to adult females from further serious sexual offending. The author concluded that the offender could not be managed safely in the community as at the date of the report.

Dr Acosta-Armas's first report dated 19 August 2022 was written principally in order to assess whether the offender was fit to plead and to participate in a trial. He had reviewed the evidence in the case. He set out the offender's version of events which was that he and C had been kissing at one point but that nothing serious had happened. However, he also provided an overview of the offender's psychiatric condition albeit that at that stage he did not have access to the offender's medical records. Based on his assessment of the offender which included information provided by the offender's father, Dr Acosta-Armas concluded that the offender had had an episode of drug-induced psychosis in 2019, the drug being cannabis. After his arrest in 2021 the offender had been admitted to hospital under section 2 of the Mental Health Act 1983. He was then an in-patient for a month. Dr Acosta-Armas was not able to say what had led to this admission. However, the offender in August 2022 was not on medication and was not suffering from any significant mental disorder.

The same doctor reported again in September 2023, after the offender's conviction. He met the offender with the offender's mother. The doctor had access to some medical records. These confirmed that the offender had experienced a psychotic episode in late 2019. He had been referred to the local Early Intervention in Psychosis Service (EIPS). When discharged from that service in April 2020 the diagnosis was possible drug-induced psychosis. The records in relation to the admission in 2021 showed that this resulted from an attendance at an A&E department of a local hospital. The offender had gone there with his mother who said that her son had been unwell since 2019. Dr Acosta-Armas had no reports from the hospital to which the offender had been admitted and no discharge summary was available. It was apparent from GP and EIPS records that in 2022 the offender was being prescribed an antipsychotic drug. He was discharged from the EIPS care in January 2023. At a GP appointment in March 2023 the offender (who was in the company of his father) said that he was feeling better and he no longer needed the antipsychotic medication. On 31 August 2023 the offender, accompanied by his mother, was reviewed by the GP. This was shortly after the conclusion of the trial. The history given by the offender was one of delusions, hallucinations and poor thought process. The GP considered that an urgent referral to EIPS was needed.

In his conclusions Dr Acosta-Armas observed that there was "lack of clarity regarding the nature of his [the offender's] mental health problems". He said that the offender needed to continue to receive input from mental health services. He stated that:

The letters from Dr Medjedovic were written from the perspective of the clinician with responsibility for the offender at EIPS. In her first letter dated 29 November 2023 she said that the offender had a diagnosis of drug-induced psychosis. She described the course of the offender's contacts with her service and the medication provided. She had seen the offender at his home on 28 November 2023. She believed that then he was in the middle of a psychotic episode. The offender's medication was in the process of being changed. The second letter was dated 30 January 2024. The doctor had seen the offender the day before. She reported that the change in medication had not had the desired effect. The offender's mother reported increasingly paranoid behaviour on the part of her son. The offender himself did not respond to most questions. He presented as "aloof and occasionally smirking to himself". The doctor had the impression that the offender was still in the middle of a psychotic episode. She offered a range of options as to the sentence which might be imposed.

Dr Al-Taiar was then instructed on behalf of the offender. He provided two reports in March and June 2024. He assessed the offender via Teams meetings (ie, he did not see the offender in person). The offender's mother was at those meetings. Dr Al-Taiar had the reports that had already been prepared in relation to the offender, to which we have just referred. He did not have any medical records. His conclusion in March was that the offender was suffering from paranoid schizophrenia. He favoured that diagnosis over a drug-induced psychosis because of the persistence of the symptoms. It was of a nature and degree, he said, which made hospital treatment appropriate. In-patient treatment was necessary for the protection of the public. He also said that it was likely that the offender was experiencing manifestations of his psychotic state at the time of the offence. He noted that criminal acts associated with psychosis were typically public order offences or confrontations with the police. He did not set out any account of the events involving C as given to him by the offender. Dr Al-Taiar considered that an order pursuant to section 37 of the Mental Health Act 1983 would be the most appropriate disposal. He reached the same conclusion in June 2024. He said then that the offender's psychotic illness had worsened and now was severe.

On behalf of the offender a second psychiatrist was instructed, namely Dr Lodhi. He assessed the offender at the end of March 2024, again remotely, via a Zoom meeting. Initially he spoke at length to the offender's mother. The offender at this time was still in bed. When the offender did appear, he was very guarded in his response to questions. Insofar as he did respond, his answers were brief. After a short time, Dr Lodhi decided that he had no option but to bring the interview to an end. As to diagnosis, he said:

The judge had all of this material at the sentencing hearing. Dr Al-Taiar gave oral evidence at the hearing. The essentials of his evidence were as follows:

The judge had no evidence from any clinician at the hospital at which a bed was available. The view from that hospital that an interim order would be the proper course emerged only by a sidewind in the course of Dr Al-Taiar's evidence. Emails indicating that view had been forwarded to the court listing officer by those defending the offender. They had not been drawn to the attention of the judge until Dr Al-Taiar was giving evidence.

After the evidence of Dr Al-Taiar had concluded, the judge sought the assistance of prosecution counsel. The judge said that the sentencing decision was for him but that he would be grateful to receive assistance from counsel. Prosecution counsel offered the view that (a) the judge was bound to act on the evidence of Dr Al-Taiar and (b) an order pursuant to section 37 of the 1983 Act would protect the public.

In his sentencing remarks the judge referred to Vowles [2015] EWCA Crim 45 and Edwards [2018] EWCA Crim 395. The latter authority required consideration of the importance of a penal element in the sentence where the offence required it. In considering that issue, both culpability and harm had to be assessed. The judge rehearsed the impact that the offence had had on C. He then reviewed the psychiatric evidence. He said that Dr Al-Taiar had confirmed that the offender suffered from chronic schizophrenia. He adopted the recommendation of Dr Al-Taiar as supported by Dr Lodhi.

When application was made to this court to refer the sentence as unduly lenient those representing the offender were required by the Registrar to obtain an up-to-date report from the offender's responsible clinician at the hospital at which he was detained. The Registrar sensibly took the view that, given the issues that had arisen at the sentencing hearing, the court would be assisted by what had transpired once the offender was an in-patient. Dr Boyle, the responsible clinician, reported in writing on 17 December 2024. By this point the offender had been an in-patient for about twelve weeks. From the outset of his admission, the clinicians and nursing staff had not observed any of the overt symptoms which had been reported to Dr Al-Taiar and Dr Lodhi. There had been no change or increase in the offender's medication. Dr Boyle questioned the previous diagnosis of schizophrenia. She had seen no signs of significant mental disorder during his time under her care. She was unable to identify any link between such mental disorder as existed and the offence. She did not consider that detention under section 37 of the 1983 Act was justified. A very early discharge was a possibility. That would be the likely outcome and were the offender not to be discharged then he would make an application to the Mental Health Appeal Tribunal.

The court had been due to hear the application by the Solicitor General on 19 November 2024. Those representing the offender had asked the hearing to be vacated because they had not had the chance to review the report of Dr Boyle. As a lawyer in the Criminal Appeal Office observed, the contents of the report were not what they expected. The hearing was vacated. The offender's solicitors obtained a further report from Dr Al-Taiar. The report was dated 5 February 2025, based on an assessment of the offender conducted on 1 February 2025. The mental state examination as set out in the report by Dr Al-Taiar disclosed no symptoms of psychosis.

The doctor did refer to the information provided by the offender's mother. Based in part on that information, he maintained his opinion that the offender was suffering from a serious mental disorder. At the end of the report he said that, given the uncertainty about the link between the mental illness and the offence, an order under section 45A of the 1983 Act could be considered.

Before us the Solicitor General submits that the evidence available to the judge did not support the conclusion that a hospital order pursuant to section 37 was the appropriate disposal. There was uncertainty in the evidence in relation to the offender's disorder and the link, if any, between the disorder and the offence. Moreover, the clinicians at the hospital at which the offender was to be treated had asked for an interim order to allow full assessment to be carried out in an in-patient setting. The judge was not required to make a final sentencing decision in September 2024. Nor was he obliged to accept the evidence of Dr Al-Taiar. Finally, although the judge referred to Edwards, he did not make any finding as to the offender's culpability for the offence.

At the sentencing hearing the offender was represented by Ms Molly Pinkus. She appeared before us to make submissions on his behalf. She argues that the judge was justified in reaching the conclusion that he did in relation to the disposal by way of a hospital order. There was no proper basis upon which he could have ignored the evidence of Dr Al-Taiar, evidence which had been confirmed in his later report.

The correct formulation of what amounts to an unduly lenient sentence is still that as provided by the then Lord Chief Justice in Attorney-General's Reference (No 4 of 1989) [1990] 1 WLR 41:

In this case, therefore, the issue is whether it was reasonable for the judge to consider that a hospital order under section 37 of the 1983 Act was an appropriate disposal of the case.

We consider that the judge was not given the assistance by counsel to which he was entitled. The prosecution informed the judge that he was bound to accept the evidence of Dr Al-Taiar. This was wrong. In Vowles at [51] this court emphasised that in a case of this kind the judge was not to feel circumscribed by psychiatric opinions. It was for the judge to determine the extent to which punishment was required. That was not a matter on which any psychiatrist was entitled to opine. It was also for the judge to have regard to the protection of the public. Again, that was not an issue for psychiatric opinion save in respect of how an order under section 37 of the 1983 Act would operate in terms of length of detention and release provisions. In this case, Dr Al-Taiar's belief as to the former was not realistic. An order under section 37 in the first instance will last for six months. It is then renewable for a further six months and thereafter for periods of twelve months at a time. It is commonplace for an order under this section to last no more than twelve months. Dr Al-Taiar said nothing about release provisions where an order under section 37 was made. A person may be discharged from hospital where such an order is in place by more than one route: application to a Mental Health Tribunal; hospital managers' hearing; responsible clinician. The second and third routes may lead to discharge even before the expiry of the first six months of the order. There are only very limited circumstances in which the Secretary of State can intervene to prevent release. It may have been unintentional but the judge in our view was left with a misleading picture of the effect of the order he was invited to make.

The judge, in any case of this kind, must determine the extent to which the offending was attributable to the mental disorder. The judge will be assisted by psychiatric opinion on this issue. Such opinion will not be determinative. As well as Vowles there is guidance from the Sentencing Council in the overarching guideline Sentencing Offenders with Mental Disorder etc. Paragraph 13 is relevant on this point:

At no point was it spelt out to the judge that the offender had given no satisfactory account of the incident which culminated in the rape of C. He did not give evidence at the trial. His account to the psychiatrists and the probation officer was that there had been some sexual activity but of no real significance, yet it had been put to C in the trial that she had had consensual sexual intercourse. In those circumstances, any suggestion that mental disorder played a part in the offending necessarily was at best problematic. The reality was that the offender denied that anything untoward had occurred. Dr Al-Taiar asserted that the offender was in a psychotic state at the time of the offence and that criminal acts can be associated with psychosis. Whatever the validity of the first aspect of that assertion, Dr Al-Taiar gave no adequate evidence to support the proposition that the mental disorder affected the offender's culpability.

Although Dr Al-Taiar gave oral evidence at the sentencing hearing, this was not the only psychiatric evidence available to the judge. Dr Acosta-Armas considered that there was a lack of clarity in relation to the mental problems affecting the offender. He did not identify any specific mental disorder. It is to be noted that, unlike Dr Al-Taiar, Dr Acosta-Armas had seen the bulk of the offender's medical records. Dr Medjedovic had the benefit of being the offender's responsible clinician at EIPS. She maintained that the offender's diagnosis was drug-induced psychosis. While Dr Lodhi supported the opinion of Dr Al-Taiar, his support was equivocal.

Although the judge was not given as full a picture as he ought to have been, the judge was told something about the view of the clinicians at the hospital at which it was proposed that the offender would be treated. It should have been made clear to the judge that those clinicians, who must have seen the material available to Dr Al-Taiar, wanted to assess the offender before reaching a final view as to the appropriate disposal of the case. In the course of the hearing, the judge was left with the impression that there was a binary choice -an interim order under section 38 or a hospital order under section 37. This was not the position. An interim order potentially was the first step on the road to a full order under section 37. At no point did either counsel point out to the judge the pitfalls of making an order under section 37 when the clinicians who were to be responsible for the offender had not assessed him.

The reason given by Dr Al-Taiar for not recommending that any hospital order should be subject to a restriction on release pursuant to section 41 of the 1983 Act was misconceived. The offender presented a high risk of serious harm to females. The fact that he had no previous convictions and had academic potential was of minimal relevance. A restriction order must be made where "it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of him committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do." The evidence (including that of Dr Al-Taiar) showed clearly that the protection of the public required a restriction order.

As we have said, the judge is not to be criticised for his failure to appreciate all these matters. He was not alerted to them as he should have been. The consequence was that he sentenced on a false basis. Moreover, at no point did the judge grapple with the fact that the offender had committed a very serious offence for which punishment ought to have played a significant role. A section 37 order would not fulfil that requirement. We also must bear in mind that the judge was sentencing a man a little over a year after his conviction for an offence where all concerned wanted some finality, but that does not excuse proceeding on a false basis.

Whatever had transpired after the offender arrived at the secure hospital pursuant to the section 37 order, we are satisfied that the sentence imposed would not have been one that was reasonably open to the judge. The preferable course would have been to make an interim hospital order. If the judge considered that a final disposal was essential, on the information available to him the options were either a restriction order under section 41 in addition to the section 37 order or a hybrid order under section 45A of the 1983 Act. A hybrid order, amongst other things, would have involved a restriction order. In very short terms, it would have involved the imposition of a custodial sentence but with immediate dispatch to hospital in order for any mental disorder to be treated before the prison sentence could be served.

As it turns out, no final disposal involving a hospital order of any kind is appropriate. Had the judge taken the proper course, the case would have come back to him after twelve weeks or so. He would have been provided with the report from Dr Boyle. Dr Boyle would have indicated that this case is not and was not one for any medical disposal. The proposition that we should now take the course of imposing a restriction order whether as part of a hybrid order or otherwise is unsustainable. The evidence of Dr Boyle is that the core criterion for any order involving detention in hospital - namely the offender has a mental disorder amenable to mental treatment - is missing. Dr Al-Taiar continues to assert that the offender should be treated as an in-patient in a hospital setting. He has not had the advantage of the continuous assessment conducted by Dr Boyle and her colleagues over a period of twelve weeks or more. Even his own mental state examination disclosed no significant symptoms.

We are driven to the conclusion that the offender should be, and should have been, sentenced within the ordinary sentencing framework. Had the judge taken the proper approach, he would have been bound to reach the same conclusion by the end of the sentencing process. It was agreed in the court below that by reference to the relevant Sentencing Council guideline, the offence of rape fell into Category 3B. The Solicitor General does not criticise that categorisation. We agree it was the correct categorisation. The starting point for such an offence is 5 years' custody with a range of 4 to 7 years. The aggravating factors were ejaculation and the commission of the offence whilst under the influence of alcohol. The mitigating factors were the offender's good character and his age: he was just 22 at the date of the offence. We conclude that the aggravating and mitigating factors balance each other out. The appropriate custodial term is 5 years' imprisonment.

The issue of dangerousness must be considered. The author of the pre-sentence report was satisfied that the offender presented a high risk of sexual harm to adult females from further serious sexual offending. Dr Al-Taiar apparently agrees with that conclusion. Indeed in his most recent report he suggested that a hybrid order under section 45A might be appropriate. By definition that involves an acceptance of a risk of offending from which the public requires protection. Thus, the proper sentence must provide the public with a degree of protection. In this case that means that an extended determinate sentence will be appropriate.

We give leave to refer the sentence imposed by the judge. We quash the hospital order pursuant to section 37 of the Mental Health Act 1983. We shall substitute for that sentence an extended determinate sentence. The custodial term will be 5 years' imprisonment. The extended licence period will be 3 years.

The offender will have to serve two-thirds of the custodial term before his case can be considered by the Parole Board. He may serve the entirety of the 5 years' custodial term. If he breaches the terms of the extended licence, he will be returned to prison for the balance of that extended period.

Mr Baja will need to surrender himself to Staines Police Station, 22 Kingston Rd, Staines TW18 4LQ by 4 pm tomorrow.