In court
| DOI | 10.1177/0264550513507225 |
| Date | 01 December 2013 |
| Published date | 01 December 2013 |
| Subject Matter | In court |
In court
In court
General sentencing issues
Dangerousness: Significance of undiagnosed tumour
Aged in his mid-40s, H. had over a three month period engaged in robberies armed
with a sawn-off shotgun, involving carjacking by targeting drivers when they
stopped by the roadside to urinate and by holding up a post office and a bank.
Though he had multiple prior convictions these had mainly featured theft, fraud and
deception. Offending had become so normal for him that he would steal to order
items ranging from cigarettes and alcohol to valuable equipment, such as genera-
tors and diggers. As regards violence, he had a single minor conviction for ABH
back in 1988, attracting a fine. The PSR recorded H.’s explanation for committing
the robberies as being financial difficulties, criminal associates having demanded
that he pay them back £100,000. Though the recent escalation in his pattern of
offending had been unexpected by those who had supervised him, he was assessed
as posing a high risk both of re-offending and of causing serious harm to the public.
Following sentence of imprisonment for public protection, H. had been referred
to hospital and had undergone brain surgery to remove a previously unsuspected
but considerable tumour that had been growing for many years. As it grew it
had pressed against the frontal lobe of the brain. His family had observed
personality changes over the years, with instances of odd and bizarre behaviour,
and his current offences had appeared childish in their manner of execution. A
Consultant Neuropsychiatrist reported that the tumour would have led to the per-
sonality change with increased impulsiveness and lack of judgment, while reducing
H.’s insight into what was changing in his personality. He would still have known
perfectly well what he was doing, but the expert considered that his condition had
amounted to an abnormality of mind such that if he had been on trial for murder he
would have had a defence of diminished responsibility. If he had not suffered the
tumour it was highly unlikely that he would have resorted to armed robbery but
would have continued with his previous criminal career. As regards risk of serious
harm following the removal of the tumour, the expert noted that people who have
been under severe personal stress or experienced a life-threatening event frequently
have a personality change in which they re-evaluate their lives, becoming more
social and family orientated. Back in prison he had not evidenced the impulsive
aggression that latterly had characterized his previous behaviour.
Probation Journal
60(4) 453–470
ªThe Author(s) 2013
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DOI: 10.1177/0264550513507225
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The Journal of Community and Criminal Justice
On H.’s appeal against sentence, the Court of Appeal was satisfied that the
overall thrust of the scientific evidence was clear and, based on that, ‘no court would
conclude that it was satisfied that there is here a significant risk of future specified
offending causing serious harm to the public, now the tumour has been removed.
We are satisfied that the finding of dangerousness made by the judge should in
these highly exceptional circumstances be set aside’. The IPP term was thus qua-
shed. As regards the substitute determinate term, the Court identified that significant
culpability remained, justifying a substantial custodial sentence, in this instance a
total term of 11 years.
R v HAYES, February 2013 (not reported at time of writing).
Fraud: Conning vulnerable victims
On cold-calling at the home of an elderly man, described as vulnerable on account
of his learning difficulties, poor health and social isolation, W. purported to repre-
sent a roofing company and advised that the householder’s roof required urgent
repair costing £3000. Following completion of some unnecessary and unhelpful
work to the roof an accomplice visited the occupier, claiming to work for the local
authority and pressurizing the victim to part with a further £13,200 for further
‘essential’ work to the roof. Further pressure of this nature caused the confused occu-
pier to pay over a total of £25,600. A similar scam was pursued against a woman
aged 85 to pay W. a sum of over £3000 from her life savings for unnecessary and
incompetently executed work on her roof. At the time of committing these offences of
fraud, W. (aged in his mid-20s) had been on bail in respect of a similar exercise
netting £500 for which he later incurred three weeks’ imprisonment.
On his appeal against a term of four years’ imprisonment following guilty pleas,
W. argued that this sentence had been manifestly excessive. The Court of Appeal
acknowledged that the appropriate guidance set out in the Sentencing Guidelines
Council’s guidelines on sentencing for statutory fraud proposes for ‘confidence
fraud characterized by a degree of planning and/or multiple transactions’ a sug-
gested range of sentences for a first-time adult offender, after a trial, of two to five
years’ custody, with a starting point of three years. However, W. had been the
prime mover, playing the principal role in both offences. He had targeted, preyed
on and exploited elderly, vulnerable people living alone to obtain substantial
amounts of their money and had repeatedly pressured his male victim. He was not
a first-time offender. In these circumstances a departure from the guidelines had
been justified and W.’s appeal was dismissed.
R v WENMAN, February 2013 (not reported at time of writing).
Circumventing immigration and adoption laws: Desperation and
deterrence
Having migrated from the Philippines in her late-30s, T. had subsequently married in
the UK and secured British citizenship. By now in her late-40s she and her husband,
both childless, had decided to pursue adoption. Having travelled to the Philippines
454 Probation Journal 60(4)
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