LATHAM LJ, ANDREW SMITH J, JUDGE SCOTT-GALL QC (sitting as a judge of the CACD)

Transcription

1 R v Smallshire Sentence Imprisonment Length of sentence Wounding with intent Six years' imprisonment Defendant's state of mind at time of offence affected by medication for depression Whether sentence manifestly excessive [2008] EWCA Crim 3217, COURT OF APPEAL (CRIMINAL DIVISION) LATHAM LJ, ANDREW SMITH J, JUDGE SCOTT-GALL QC (sitting as a judge of the CACD) 17 DECEMBER 2008 D Lyons for the Appellant/Applicant J Gau for the Crown Registrar of Criminal Appeals; Crown Prosecution Service ANDREW SMITH J: (reading the judgment of the court) [1] Ronald Smallshire pleaded guilty on 29 August 2006 to a charge of causing grievous bodily harm with intent and on 22 September 2006 he was sentenced to 78 months' imprisonment. He appeals against sentence by leave of the single judge, to which appeal we shall come in due course, but he has also applied for an extension of time of some 20 months to appeal against his conviction and the single judge has referred that application to this court. [2] The incident that led to the conviction took place on 16 December 2005, some time after 10.00pm. That evening a 23-year-old man called Michael Oakley was walking two dogs. His three stepsisters were with him. One of the dogs, an Alsatian, was off the lead and attacked Mr Smallshire's dog. It seems that Mr Smallshire might have been bitten as he rescued the dog. Mr Smallshire took his dog back into his nearby house.

2 [3] He came back out of the house and attacked Mr Oakley. Mr Smallshire had brought a knife, an old steak knife with a serrated blade and wooden handle, from the house. His account was that he took the knife from the kitchen drawer because he could not find a broom, which, as we understand it, he might have used to ward off the dogs. When outside he put Mr Oakley to the ground with a blow or blows to the head and then, in a frenzied attack, he repeatedly stabbed Mr Oakley to the head and back, inflicting nearly 20 wounds and breaking the knife in doing so. Mr Smallshire returned to his house and the police were telephoned. The Applicant was arrested. [4] Mr Oakley suffered a pneumothorax and stab wounds. He stayed in hospital overnight. He made a good recovery but he and his stepsisters suffered psychological effects. [5] Mr Smallshire was aged 56 when this incident took place. He is a hard working family man, with no previous convictions and his good character was described in numerous references before the court. It is quite apparent that this conduct was quite out of character. [6] There was evidence before the court that Mr Smallshire was suffering from an adjustment disorder by way of a response to major stressful events in his life and the attack reflected an acute stress reaction. In 1996 he had suffered from irritable bowel symptoms and medical treatment had been largely ineffective. In June 2005 he had had depressants for a short period but stopped taking them because they appeared to aggravate his condition. [7] On 5 December 2005, after Mr Smallshire had stated that he felt increasingly paranoid, his general practitioner prescribed an anti-depressant, Citalopram. It was a small dose of ten milligrams, described in one medical report as half the usual starting dose, for what was recorded as irritable bowel syndrome, with anxiety and depression features. He continued to take the medicine until 16 December That evening he took his dose at about eight o'clock. At about 9.00pm he had a meal with his wife and they shared a bottle of wine. [8] The basis for the application for leave to appeal against conviction is that as a result of the medication, at the time of the attack Mr Smallshire was in a state of automatism. For present purposes that state can be described as a complete loss of voluntary control that is not caused by what the person could reasonably foresee and is not a self-induced incapacity or one that was a result of a disease of the mind. It is said that therefore notwithstanding the guilty plea the conviction is unsafe. The court does have jurisdiction to determine an appeal against conviction in these circumstances (see R v Boal [1992] QB 591, [1992] 3 All ER 177, (1993) 95 Cr App Rep 272).

3 [9] In support of the application for an extension of time to appeal against conviction, there is before the court an affidavit of Mr Ian Brazier, a solicitor whose firm was first instructed by Mr Smallshire shortly after he was sentenced. Mr Brazier sets out the history of his firm's conduct of the matter until the appeal papers were lodged in June In particular, he explains the need to find medical expert evidence. If there is merit in the application for leave, we would not think it right for it to be refused because of the delay in bringing it. We grant the necessary extension of time. [10] Mr Smallshire relies, in support of his challenge to conviction, upon evidence of Dr Andrew Herxheimer, a consultant clinical pharmacologist, experienced in the investigation and evaluation of the adverse effects of drug therapy and who in recent years has studied a large number of reports of effects relating to SSRI (Select Seroxat Inhibitors) antidepressant drugs, of which Citalopram is one. [11] Dr Herxheimer wrote a report dated 12 February 2008 and a supplementary report dated 14 March In the former he concluded that:... citalopram very likely contributed decisively to Mr Smallshire's actions on 16 December He had started taking this antidepressant medication 11 days earlier; its concentration in his brain would have been steadily increasing from about seven days. It is highly probable that alcohol augmented the effect of the drug: on its own alcohol would not account for his behaviour. [12] In his supplementary report Dr Herxheimer stated that in his opinion that it was more likely than not that because of a mixture of medication and alcohol, Mr Smallshire would have been in a state of non insane automatism at the time of the incident. [13] It is said that the evidence of Dr Herxheimer should be admitted on an appeal against conviction. The questions to which the court has to have regard in deciding whether to receive evidence include whether it appears capable of belief; whether it appears that it would afford any grounds for allowing the appeal; whether it would have been admissible in the lower court and whether there is a reasonable explanation for a failure to adduce the evidence in the lower court proceedings. [14] We should say something about this last point. Psychiatric reports had been prepared about Mr Smallshire before he pleaded guilty in August They were prepared by Dr Anwar El-Komy and Dr Jane Ewbank. In a report dated 7 February 2000 Dr El-Komy simply stated that Mr Smallshire was unable to give the name of the antidepressant that he was taking but he, Dr El-Komy, did not believe that any available anti-depressant could have any major impact on his behaviour on the day of the incident.

4 [15] In a report dated 3 August 2006 Dr Ewbank, who had been specifically asked whether Citalopram had affected his behaviour, reported that Mr Smallshire said that, having started to take the medication, he felt agitated and unreal and confused. She opined that Whilst Mr Smallshire's actions are to some extent understandable within the context in which they occurred... it is impossible to rule out that the Citalopram... had affected his presentation in some way. She concluded, however, that Mr Smallshire was able to form intent at the point he took the knife from his kitchen and began the alleged attack on the victim. [16] In his supplementary report Dr Herxheimer dealt with the question: What was the general state of medical knowledge at the time of the earlier reports were written?, the earlier reports being those of Dr El-Komy and Dr Ewbank. He replied that at the time little or nothing definite was known by psychiatrists and GPs about the behavioural and emotional adverse affects of SRRI antidepressants and that the papers cited in his first report were not directly concerned with Citalopram and attracted little attention when published. He said that a more directly relevant paper was published only in 2006, after the earlier reports, that is to say the reports of Dr El-Komy and Dr Ewbank. That is a paper which Dr Herxheimer himself had not cited in his main report. We have seen the paper. It identifies as possible mechanisms of anti depressant induced violence (i) apathesia and emotion blunting, which could not give rise to a state of automatism, (ii) somnambulism, which is not suggested in this case, and (iii) mania and psychosis, which again would not generally amount to a state of automatism. Reference is made to the possibility of delirious states reflecting brain disturbances, rather than a function psychosis or mania. Dr Herxheimer does not support delirium as a mechanism giving rise to Mr Smallshire's violent behaviour and that would not be supported by the factual evidence. [17] We are prepared to accept that there was not available to Mr Smallshire, when he pleaded guilty to the offence, medical evidence to support a defence of automatism. However, the question of the affect of the medication upon Mr Smallshire had undoubtedly been examined and the plea was entered in the light of the advice received. Undoubtedly further research and further publications have been produced since August 2006 but the important question is whether this explains why Mr Smallshire seeks only now to advance a defence of automatism. [18] It is against this background that we turn to the question as to whether Dr Herxheimer's evidence is capable of belief and whether it affords grounds for allowing the appeal on the basis of a defence of automatism. The account given by Mr Smallshire to the police who went to his house on 16 December 2008, after the incident, was that after the trouble between the dogs, he went inside my house and took a knife from the kitchen drawer. I went outside and stabbed the man who was with the dogs. The knife broke and I had no idea where it is. He said after arrest: I know I have done wrong. What I have done is totally out of proportion to what happened.

5 [19] The next day, when arrested on suspicion of attempted murder, he responded that he had flipped but did not say anything indicative of the loss of voluntary control that would be required for a defence of non insane automatism to be available to him. [20] In his interview on 19 December 2005, he said that he just went absolutely berserk. Again, there is nothing that would amount to an assertion of automatism. He described choosing the knife as a split second decision and that he ploughed into the bloke because: I saw the situation that I had got to get the upper hand. He spoke of his intention being to get Mr Oakley away from his wife. He said that when he struck with the knife: My main concern was to get the situation under control. [21] These are not accounts that amount to an assertion of automatism or state anything indicative of the loss of voluntary control that would amount to a defence of automatism. Dr Herxheimer's opinion that Mr Smallshire's actions are more likely than not the result of automatism do not explain these accounts of what happened. Without that, we are unable to accept that the evidence affords any grounds to allowing the appeal. The bald assertion that Mr Smallshire was more likely than not in a state of automatism is not, without attributing to Dr Herxheimer any intention to mislead whatsoever, capable of belief. The question is not whether the effects of Citalopram are capable of giving rise to a state of automatism in other circumstances, but whether there is a credible evidence that they did so in this case. Dr Herxheimer's reports do not provide credible evidence that they did. [22] In these circumstances the evidence of Dr Herxheimer is not evidence that should be received on the appeal. Without it, the appeal is hopeless. The application for leave to appeal against conviction is, for that reason, refused. ANDREW SMITH J: (Submissions re: sentence) [23] We have set out the facts of this case in our judgment giving our reasons for dismissing the application for leave to appeal against conviction. We come to the appeal against sentence.

6 [24] This was a frenzied attack. Although the physical injuries to Mr Oakley were less serious than they might have been, very much less serious, nevertheless they were significant. The psychological effect on him and his sisters was undeniably profound. [25] Against that the judge recognised that Mr Smallshire is a man of impeccable character. The judge also recognised that his psychological state is an explanation for what he did. The judge having decided that he could properly pass a determinate sentence, concluded that the appropriate sentence, after a trial, would have been one of nine years custody and that a discount of 25% should be made by way of credit for the guilty plea and so imposed a sentence of six-and-a-half years. [26] The sentence is criticised on the basis that it does not properly take account of the medication likely to have had on Mr Smallshire. A sentence of nine years custody, after a trial, for an attack of this ferocity might sometimes be appropriate but it was, in our judgment, severe, given the Appellant's character and the background to this incident with the trouble between the dogs. It is also clear to our mind that the frenzied nature of the attack was attributable to Mr Smallshire's mental turmoil, which was likely to have been influenced to some degree by his medication, albeit admittedly together with the alcohol that he had drunk. [27] Whilst Mr Smallshire went outside with the knife, it is not clear that he went out intending to use it aggressively. His account of taking the knife as an alternative to a broom suggests otherwise, that it was taken for protection. Again, we readily accept that his thinking was confused and the confusion of thought too was probably referable to the medication. [28] In these circumstances and bearing in mind the Appellant's character, we are persuaded that the sentence was too long. In light of the information before us, not all of which was available to the sentencing judge, we consider that a sentence of six years would have been appropriate after a trial. Giving discount for the plea, the sentence would then be one of four-and-a-half years in custody. We reduce the sentence from six-and-a-half years to four-and-a-half years and allow the appeal against sentence to that extent. Appeal allowed. Source [All England Official Transcripts ( )] Date/Time Sunday, February, 26, 2012, 15:57 GMT

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