R v Gregor Bauld

This is a renewed application for leave to appeal against sentence following refusal by the single judge. An extension of time of 115 days is needed for the renewal. The delay was in part due to an administrative error by the applicant's solicitors using a wrong email address, and in part because of insurmountable difficulties in the solicitors being able to communicate with the applicant in order to take instructions. We grant the extension of time sought.

The applicant is represented by his trial counsel, Miss Mary Prior KC, who appears pro bono before us today in the best traditions of the Bar. We are grateful to her for her written and oral submissions.

On 2 October 2024, in the Crown Court at Leicester, the applicant (now aged 24) stood trial for the murder of his mother. On the first day of the trial he pleaded guilty to manslaughter on the grounds of diminished responsibility. The plea was not acceptable to the prosecution and the trial for murder proceeded.

On 18 October 2024, the jury acquitted the applicant of murder, but convicted him of manslaughter on the grounds of diminished responsibility. The case was adjourned for sentence.

On 8 November 2024, the applicant was sentenced by the trial judge, His Honour Judge Timothy Spencer KC, to life imprisonment, pursuant to section 274 of the Sentencing Act 2020, with a minimum term of 12 years and five months, less 248 days served on remand. The judge also made a hospital direction and limitation direction under section 45A of the Mental Health Act 1983, a so-called "hybrid" order. The effect of such an order is that the offender is detained in hospital, subject to the restrictions of section 37 and 41 of the Mental Health Act 1983. But if and when his mental health improves to the point that he would otherwise be discharged from hospital, the offender is instead transferred to prison, where he serves the minimum term of the life sentence. Having served that minimum term, he will only be released on licence if the parole board is satisfied that it is safe to release him.

Christine Bauld (the deceased) was aged 55 at the time of her death. She was married to Thomas Bauld. The applicant (then aged 22) was their son and only child. The family resided in a quiet cul-de-sac in the village of Burbage, near Hinkley. The applicant had been well brought up by two loving parents in a comfortable and relatively affluent environment. However, as he became older, his life had become blighted by chronic drug abuse and associated mental ill-health. He had started to take drugs when he was 13 or 14 years old. He developed increasingly serious mental health problems. In 2022 the applicant had been "sectioned" under the Mental Health Act 1983 following a serious incident at the family home. It was believed that during this incident the applicant had experienced a drug-induced psychosis as a result of smoking a large amount of cannabis.

On Thursday 29 February 2024, the applicant informed his parents that he had obtained a new job at a logistics firm in Coventry. In the early hours of the following morning, Friday 1 March, his father heard the applicant "howling" in his bedroom. He found the applicant hunched over, sniffing drugs from a saucer, using the plastic casing from a pen. His father picked up the saucer and flushed away the remaining drugs. He also confiscated a bag containing what appeared to be further drugs. The applicant was so affected by the drugs on this occasion that he was unable to walk and his father had to help him into bed. His father put the confiscated bag of drugs into a cabinet.

Later that morning his father became aware that the applicant was searching the house for the bag of drugs that had been confiscated. His parents asked the applicant why he had taken drugs the previous night, having just secured a new job. The applicant promised that he would not take drugs again. He admitted that he had been snorting ketamine the night before.

On the Friday evening his parents told him that they were expecting visitors. The applicant said that he would spend the night at a local Premier Inn. He promised again that he would not use drugs. There was CCTV footage of the applicant arriving at the hotel that night and leaving again on Saturday morning. The contrast in his behaviour and manner on arrival and on departure suggested that he had taken drugs again whilst he had been at the hotel.

The applicant returned home on the Saturday. In the evening he was upstairs in his bedroom. His parents were downstairs watching television.

On the Sunday morning, 3 March, at around 10 am, the applicant was on the driveway outside the house looking for something in his car, which made his father suspicious. A little later, while the applicant was taking a shower, his father checked the pockets of the applicant's tracksuit bottoms and found two plastic bags containing tablets. He confiscated them. This led to a confrontation between the applicant and his father. On being told that the tablets had been flushed away, the applicant became very angry and agitated. He started shouting that he needed the tablets to control his anxiety and nerves. His father offered to take him to the doctor’s to obtain help. The applicant declined and retired to his bedroom. His parents remained downstairs. They could hear the applicant banging around above them.

After a while, his mother decided to take the family dog for a walk. She went to the kitchen to collect the dog's lead. The applicant's father next remembered his wife shouting to him repeatedly that the applicant had a knife. The applicant chased his mother down the hallway and out of the house. Once outside, he stabbed his mother twice with a kitchen knife with a 12 inch blade, with which he had armed himself inside the house. As she cowered on the ground, he stabbed her again. This was witnessed by the applicant's father who then held his wife in his arms whilst screaming for help.

The fatal injury was a stab wound to the back which penetrated the aorta and the main blood vessels serving the heart. There were two further stab wounds to the chest, side and rear, and one to the right upper arm. Those additional stab wounds did not contribute to death.

The applicant had gone back inside the house. He apparently flushed some tablets down the lavatory, which seems to show a degree of presence of mind.

Within a short space of time, police officers armed with tasers approached the house. The applicant opened the front door. He was calm and subdued. He appeared to be under the influence of something. One of the officers asked him if he had taken drugs. The applicant said no. He then told the police that his mother was a paedophile. He added, "That's justice". Later he said that she had "deserved it". He was arrested initially on suspicion of attempted murder. When his mother's death was confirmed, he was arrested on suspicion of murder. After caution he said, "So she's dead then", in what appeared to be a matter of fact way.

Whilst the applicant was in custody at the police station, samples of blood and urine were taken. On analysis, there were traces of LSD, ketamine and a sister drug of ketamine, cannabis and another drug which was a sedative. These drugs had been ingested certainly within 48 hours, and quite possibly within the previous 24 hours.

A search of the applicant's bedroom revealed traces of ketamine and cannabis. The police found numerous re-sealable, clear plastic bags and a set of digital scales. In the applicant's car, which was parked on the driveway, the police found cannabis and a bag containing magic mushrooms. In the two bags of tablets which his father had found in the applicant's tracksuit bottoms, there were 38 tablets containing a Class C controlled drug which was a sedative, and containing caffein, a stimulant. Messages on the applicant's phone provided clear evidence of his involvement in using and supplying illegal drugs.

Psychiatric reports were prepared for the trial addressing the issues of fitness to plead and diminished responsibility. There was a consensus that the applicant was suffering from schizophrenia. The treating forensic psychiatrist, Dr Gareth Garrett gave evidence that at the time of the killing the applicant presented with acute psychosis, where his experience of reality was greatly altered. This would amount to an abnormality of mental functioning for the purpose of the defence of diminished responsibility. He said in his report that there would be a range of opinions in a case such as this as to whether that abnormality came about as a product of schizophrenia, substance misuse, or some combination of the two. In his view, a case could be made that the abnormality arose from a recognised medical condition which substantially impaired the applicant's ability to form a rational judgment at the material time because he had abnormal, paranoid delusional beliefs about his mother, that she was an alien, a devil or a paedophile. This abnormality of mental functioning was a significant contributory factor in the applicant's behaviour at the time of the killing; it should not be seen purely as a consequence of intoxication with illicit substances.

Another forensic psychiatrist, Dr Steffan Davies, instructed on behalf of the applicant, also gave evidence in support of diminished responsibility.

Dr Tim Rogers, the consultant forensic psychiatrist instructed on behalf of the prosecution, concluded that the applicant at the time was suffering an enduring mental illness, schizophrenia, and that the applicant's drug use both precipitated a recurrence of schizophrenia and likely also worsened that condition. However, the underlying issue was schizophrenia, and not a transient drug-related condition. He, too, supported a defence of diminished responsibility. The prosecution tendered Dr Rogers at trial. Accordingly, the jury heard from all three psychiatrists.

The applicant himself gave evidence. He described a global war between the two tribes of Nats and Bots. His mother led the Nats and wanted to end the world with a nuclear bomb. She sexually abused him in his sleep. He had many voices in his head, he said, that would not be quiet. He had no recollection of the killing. He took drugs, he said, to quiet the voices and to calm him.

The issue for the jury was whether the applicant's underlying schizophrenia substantially impaired the applicant's ability to understand the nature of his conduct to form a rational judgment or to exercise self-control, and whether his schizophrenia was a significant contributory factor in causing him to carry out the killing. The prosecution accepted that at the time of the killing the applicant was undergoing a psychotic episode, but contended that this was just as consistent with a drug-induced psychosis and that the cause of this was the abuse of illicit drugs..

The jury found that the defence of diminished responsibility was made out. They acquitted the applicant of murder and convicted of manslaughter.

Sentence was adjourned for three weeks. The applicant remained in the medium secure psychiatric hospital where he had been a patient since May 2024. There were updated psychiatric reports to assist the judge in the difficult task of deciding on sentence. It was common ground that the choice was between a section 37/41 order under the Mental Health Act 1983 (a hospital order with restrictions), or a life sentence of imprisonment with a "hybrid" order under section 45A of the Mental Health Act 1983. Dr Garrett had said, before trial, in his addendum report, dated 23 September 2024, that if convicted the case should be dealt with by a section 37/41 order. He said, however, that a case could be made for a hybrid order under section 45A if the applicant was also to receive a life sentence.

In a further note for the court, dated 8 November 2024, Dr Garrett set out his reasons for recommending a section 37/41 order, rather than a hybrid order with a life sentence. He said that the main public protection advantage of a restricted hospital order is that forensic psychiatry would remain the lead agency in the longer term, and psychiatric follow-up is mandated as part of the order, which could be lifelong. By contrast, once the patient returns to prison under a hybrid order, assuming robust handovers occur through the course of the sentence and through the parole board process, psychiatric follow up could be a licence condition, but this was generally regarded as far less robust for a host of reasons.

Dr Garrett gave oral evidence at the sentencing hearing and expanded on his opinion. He said that as psychotic symptoms were the dominant driver for the offence, it should be the professionals, who are best placed to manage psychotic symptoms, who should be leading the risk management for potential future offences, and that would be a forensic psychiatrist, rather than "colleagues in the criminal justice system", as he put it. The applicant would never recover from his schizophrenia. He would have it for the rest of his life. He would be at risk of relapses into psychosis. Dr Garrett said that if there was a sentence of life imprisonment with a hybrid order, and if the applicant was released by the parole board years down the line, psychiatric follow-up with a community forensic psychiatric team could be part of his licence conditions; but it would still be probation officers who would be leading on his risk management. If he did not adhere to the conditions – for example, to take his medication or to attend follow-up appointments with a doctor or nurse – the main public protection mechanism would be recall into custody. A section 37/41 order would be preferable because there was something really powerful in saying that this was the forensic psychiatrist's responsibility. Such an order made it plainly obvious whose responsibility it was. That, he said, was the main practical benefit.

Dr Garrett's evidence was that the applicant would require medication for the rest of his life. Overall, the prognosis was poor. Regardless of how the court dealt with him, it was most likely that the applicant would remain in a psychiatric hospital for years. If he were ever transferred to prison under a hybrid order, he would be going from a hospital with 24/7 expert nursing care to observation by prison officers and infrequent review by a mental health team. The management, the medication, and compliance with treatment would be more limited.

Dr Steffan Davies also supported the making of a section 37/41 hospital order, rather than a life sentence with a section 45A hybrid order. Under the latter, the applicant's management on release from prison would be by the probation service, whereas at that point psychiatric supervision would be the most essential part of risk management.

The judge had helpful sentencing notes from prosecuting counsel and from defence counsel, Miss Prior. The judge was also addressed upon the well-known relevant authorities in relation to the choice between a section 37/41 hospital order and a life sentence with a hybrid order. Those authorities were: R v Vowles[2015] EWCA Crim 45; R v Edwards[2018] EWCA Crim 595; R v Nelson[2020] EWCA Crim 1615; and R v Calocane [2024] EWCA Crim 490. In the latter case, giving the judgment of the court, the Lady Chief Justice reviewed those authorities and the principles generally in the context of a complaint by the Solicitor General that a sentence of a section 37/41 hospital order was unduly lenient.

In his sentencing remarks, the judge described the killing as "awful beyond imagination". It was, he said, "a brutal, shocking taking of life". The applicant's mother had died in the road outside her house with her husband next to her as her life expired, with the applicant watching. The impact of the killing on her husband and her family was incalculable.

The judge summarised pats of Dr Garrett's evidence at the sentencing hearing and said this:

Turning to the Sentencing Council guideline for manslaughter by reason of diminished responsibility, the judge first had to determine what level of responsibility the applicant retained – high, medium or lower. This required the judge to “consider the extent to which the offender's responsibility was diminished by the mental disorder at the time of the offence with reference to the medical evidence and all the relevant information available to the court". The guideline goes on to state:

The judge observed that neither Dr Garrett nor Dr Davies had addressed the concept of retained responsibility under the guideline, possibly because that concept is a legal one rather than a medical one. The judge referred to the comprehensive guidance given by this Court in Calocane, and quoted from the other authorities reviewed in that case which we have already listed. The judge noted from Vowles that there must always be sound reasons for departing from the usual course of imposing a penal sentence and that the court must pay very careful attention to the different effect in each case of the conditions applicable to and after release. He noted from the authorities that the fact that two psychiatrists are of the opinion that a hospital order with restrictions under section 37/41 is the right disposal is never a reason on its own to make such an order. He noted that section 45A hybrid orders were particularly appropriate where, notwithstanding the existence of the mental disorder, a penal element to the sentence was appropriate.

The judge found that the applicant's responsibility for the killing was a heavy one; it fell within the category of high retained responsibility under the guideline.

In terms of impairment of his mental functioning, the judge noted that Dr Garrett, the treating clinician, had found that the applicant was aware of the nature of his act and that he retained the ability to exercise self-control. In other words, those two potential grounds for finding diminished responsibility did not apply. It was only the third of the statutory grounds, the applicant's ability to make a rational judgment, that Dr Garrett relied on to support diminished responsibility.

The judge reviewed the applicant's history of mental health problems. It was characterised by his voluntary ingestion of drugs of abuse. The judge quoted Dr Garrett:

The judge said that the applicant must have been aware that drug abuse was a factor in his mental health difficulties, but he continued to take drugs. He took high strength cannabis, chemical morphine, ketamine, LSD, magic mushrooms, and illegally accessed prescription drugs. The judge reviewed the evidence at trial about the applicant's use of drugs in the days and hours leading up to the killing. The judge said that the applicant's responsibility for his own psychotic condition was both clear and heavy. The prosecution had listed ten factors suggesting that the applicant's retained responsibility for the killing was high. The judge found nine of those ten persuasive.

As an offence of high retained responsibility, the starting point under the guideline was 24 years' custody, with a range from 15 years to 40 years.

The judge turned to the aggravating factors under the guideline. He did not treat the deceased as particularly vulnerable, but it was an aggravating factor under the guideline that the offence involved the use of a knife.

As to mitigating factors under the guideline, although the applicant had no previous convictions, that was tempered by the reality that for years he had been offending by taking illegal drugs. The judge was satisfied that it was a mitigating factor that there was a lack of premeditation. Something within the applicant triggered this extreme violence, but it was not premeditated.

The judge was satisfied that a hybrid order under section 45A was the right sentence for the reasons he had explained. He was satisfied that the statutory test of dangerousness under section 308 of the Sentencing Act 2020 was met. The applicant clearly represented a continuing danger. Life imprisonment was, therefore, appropriate, with a section 45A hybrid order.

The judge had to fix a minimum term for the life sentence by reference to the appropriate notional determinate sentence for the offence. The judge considered that an upwards adjustment of six years from the guideline starting point of 24 years to 30 years was called for. That took account principally of the nature of the offence. The judge said:

The mitigating factors brought the sentence down again to 28 years. The judge allowed a full one-third credit for the applicant's guilty plea to manslaughter at the start of the trial, which brought the notional sentence down to 18 years and eight months. This then had to be reduced by a further one-third to calculate the minimum term actually to be served, which resulted in a further reduction to 12 years and 5 months. Credit was given for 240 days served on remand.

In her written submissions in the grounds of appeal, Miss Prior contended that the sentence was manifestly excessive for a number of reasons: (i) the judge erred in imposing a hybrid order rather than a hospital order with restrictions; (ii) he erred in placing the sentence within the highest bracket for retained responsibility; (iii) he erred in failing adequately to reflect the findings of the jury; (iv) he erred in considering that this was one of the worst offences ever; (v) he failed adequately to take into account that the applicant's mental disorder was undiagnosed and untreated at the relevant time.

We should make clear that in her oral submissions this morning, Miss Prior has revised her overall position, as we shall explain in due course. She now no longer challenges the imposition of a life sentence and the making of a section 45A hybrid order. She has focused on the length of the notional determinate sentence and consequently the length of the minimum term of the life sentence. However, as they have been raised and may be matters of more general interest, we shall address briefly the grounds which were originally advanced and our response to them.

In her written grounds, Miss Prior submitted that in finding that the applicant had high retained responsibility, in reliance on Dr Garrett's evidence that only one of the three factors of diminished responsibility was made out, the judge reduced the value of the findings of the jury who must have felt that the applicant's inability to form a rational judgment was seriously impaired by schizophrenia. She submitted that the judge ignored the evidence of the applicant's father that symptoms of schizophrenia remained even when the applicant was drug free. We shall return to that point.

Miss Prior submitted that the judge was wrong to criticise the applicant for continuing to take drugs when the applicant must have understood that drug abuse was a factor in his mental health. The applicant was seriously ill and his thought processes were determined by attempts to quiet the voices in his head.

Miss Prior submitted that the judge was wrong to limit the reduction in credit for lack of previous convictions because, she said, the drug offending had already been taken into account as a factor leading to high retained responsibility.

As to the notional determinate sentence of 28 years, Miss Prior submitted first that the judge was wrong to go as high as 30 years before coming down again to 28 years for mitigation. She said that the judge was wrong to allow only two years’ reduction for mitigating factors. The applicant relied heavily on his parents to function in the world. His parents had failed to alert the medical treatment team of the true extent of his illness, but pretended that he was well and improving. She submitted that the notional determinate sentence was far too high and failed adequately to reflect the facts of the offence itself and the significant mitigating factors.

In her oral submissions, as we have indicated, Miss Prior refined these submissions very considerably. First, she made it clear that in the light of authorities since the applicant's sentence was passed – and another authority in particular to which her attention was drawn by the Court, to which we will come shortly – she would not pursue the complaint that there should not have been a life sentence with a hybrid order. Instead, she has focused her oral submissions on developing the point that insufficient credit was given for the applicant's personal mitigation. She submits that the judge was wrong to go as high as 30 years. She suggests that it involved an element of double counting in that although the judge had taken into account the drug abuse of the applicant in putting the offence into the high category of retained responsibility, it must have been taken into account again in the increase of 6 years to reflect the seriousness of the offence.

Miss Prior addressed us helpfully and in some detail about matters which had not been fully articulated in the advice and grounds of appeal, based upon the evidence given at trial. A point she had made – and we have already alluded to it – was that the applicant's parents had apparently not been as frank as they might have been with the mental health authorities who were looking into the applicant's condition; they had failed to disclose that even when he was not obviously taking drugs, he was still suffering from mental problems. The submission based upon that is that had the authorities been made aware timeously of the parents' knowledge, an earlier diagnosis of schizophrenia might have been made. Whether that, in the event, takes the matter any further, we have some doubt, but Miss Prior was right to draw it to our attention. It arose from evidence that the father gave at the trial. The psychiatrists had been unaware of it.

Miss Prior stressed in her oral submissions the young age of the applicant. He was only 22 at the date of the offence. She has told us more about the evidence given at trial, for example, from work colleagues. Although the applicant appeared to function normally at work, there clearly was a very serious underlying mental health problem, as well as the drug abuse in which he participated. She explained that although he also supplied drugs to others, that was more in the context of friends sharing drugs, and that, if anything, he had been exploited by others because of his comparatively affluent lifestyle. He was working and earning for much of the time.

We have also had the benefit of a respondent's notice settled by prosecuting counsel at trial. It addresses each of the grounds of appeal in some detail. In short, it was the submission of the prosecution that the judge was ideally placed to determine the proper form of the sentence, having presided over the three week trial. In the respondent's notice it is submitted that it was open to the judge to conclude that the psychotic episode that led to the killing was caused by a combination of schizophrenia and the voluntary use of drugs. According to Dr Garrett, the applicant understood the nature of his conduct when he killed his mother and was able to exercise self-control, but he chose not to do so. Although his ability to form a rational judgment was substantially impaired by a psychotic episode, that episode was caused, in part, by his use of drugs. His retained responsibility was therefore high.

We have very carefully considered all of Miss Prior's submissions, but we are unable to accept that they give rise to any arguable ground of appeal. We bear in mind, as Hallett LJ emphasised in Edwards at [35], that we are an appellate court, not a court of review. The sole question for us is whether the sentence imposed was manifestly excessive or wrong in principle. The fact that another judge might have dealt with things differently does not mean that the sentence passed on the applicant was either manifestly excessive or wrong in principle.

It is evident from his sentencing remarks that the judge gave very careful consideration to all the relevant factors in concluding that life imprisonment, with a hybrid order under section 45A, was the appropriate disposal, rather than a section 37/41 hospital order with restrictions. The judge set out very clearly his reasoning for reaching that conclusion which, we repeat, is now no longer challenged. As the authorities we have cited make clear, the court must have sound reasons for departing from the usual course of imposing a sentence with a penal element. The graver the offence and the greater the risk to the public on an offender's release, the greater emphasis the judge must place upon the protection of the public and the release regime.

In addition to the authorities cited to us, we have looked at the decision of this Court in R v Sowerby[2020] EWCA Crim 898. That was the authority to which we referred earlier in this judgment and which we drew to Miss Prior's attention before the hearing of the application proceeded.

Sowerby was a not dissimilar case. A man had killed his mother while suffering from schizophrenia. The court upheld the imposition of a sentence of life imprisonment with a section 45A hybrid order. In relation to the two different regimes, the court said at [55]:

The judge was fully entitled to conclude that the level of the applicant's retained responsibly was high for the reasons he explained. He was right to emphasise that the applicant had exacerbated his mental disorder by his voluntary abuse of drugs. We agree with the single judge that it was not arguable that the finding of high retained responsibility was wrong or outside an assessment open to the judge on the evidence.

The judge was entitled to conclude that the psychotic episode that led to the killing was caused by schizophrenia and by the voluntary abuse of drugs. That was in no way inconsistent with the findings of the jury.

We agree with the single judge that the contention that the judge failed to take into account an undiagnosed mental disorder ignores the diagnoses previously made, the treatments that were given and the applicant's substantial drug abuse in the knowledge of its effect upon him. There had been earlier psychotic episodes with accompanying self-harm, aggression and making threats of violence towards his mother. Although there had been no formal diagnosis of schizophrenia, the applicant had received treatment for drug-induced psychosis. He had been detained under the Mental Health Act, prescribed antipsychotic medication and had been referred to "Turning Point", which is a service for drug users. He also had the benefit of a supportive family and general practitioner.

We have read the statement of the community mental health nurse, Darren Wileman, dated 16 July 2024. Miss Prior tells us that he gave evidence at trial. We note that following the applicant's compulsory hospital admission in June 2022, the applicant had told the community nurse that prior to his admission he had been taking cannabis and felt that it had impacted his mental state. The applicant was able to reflect on the incident and could see that cannabis had played a significant role in destabilising his mental health. It is clear, therefore, that, notwithstanding the treatment and support that he received, the applicant chose to continue to take drugs.

The applicant was plainly dangerous. The sentence of life imprisonment was inevitable. The guideline starting point was 24 years' custody. The judge went up to 30 years. He was unarguably entitled to do so. We observe that the breadth of the guideline range for high retained responsibility, 15 years to 40 years, demonstrates the flexibility which is necessary in order to reflect the seriousness of the particular case. Here, as the judge made clear in his sentencing remarks, the uplift to 30 years reflected the overall seriousness of the case, as well as the guideline aggravating factor of the use of a knife. The judge was uniquely well placed to make that assessment, having presided over the trial. The circumstances of the offence were indeed truly appalling.

There was no double counting. The seriousness of the offence, which was part of what justified the six year increase to the notional figure of 30 years, was separate from the element of drug abuse which put the offence into the high category of retained responsibility.

As for the reduction of only two years for the mitigating factors, it would have been artificial to treat the applicant as a young man of good character, given his involvement in using and supplying drugs, albeit supplying only on a limited scale and apparently only to friends. In the event, in a case of this seriousness, good character and the absence of previous convictions can provide only very limited, if any, mitigation.

It is true that the applicant was only 22 years old at the time. However, we must not lose sight of the fact that this experienced judge had the benefit of presiding over the applicant's trial for three weeks. He was uniquely well placed to make such assessments as the seriousness of the case, culpability, harm and all other relevant matters.

For all of those reasons, we are satisfied that there is no arguable ground of appeal. Despite Miss Prior's powerful and measured submissions, for which we repeat our gratitude, this renewed application for leave to appeal against sentence is refused.