R. v. KELLECI, IZZET

Criminal Appeal No. 190 of 1994

Headnote

Plea to manslaughter on the grounds of diminished responsibility. Appropriate sentence when Hospital Order appropriate but treatment not available. Life sentence or determinate sentence? Relevance to sentence of Convention on the Transfer of Prisoners 1983 when prisoner's home country is a signatory.

IN THE COURT OF APPEAL

1994, No. 190
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. Before I give reasons, I will, for the benefit of the applicant, announce the result of this application. We give him leave to appeal; we treat the application as the appeal; we allow the appeal and we substitute for the sentence of life imprisonment a sentence of 10 years imprisonment.

2. This is an application for leave to appeal against sentence for which we have given leave to apply out of time. The applicant pleaded guilty before Keith J on 5 January 1994 to manslaughter on the grounds of diminished responsibility. A second count of wounding with intent was ordered to remain on the file.

3. The applicant is Turkish and speaks little or no English. He presented the judge with a very difficult sentencing problem which was considered over four hearings. Finally, on 12 April 1994 he passed a sentence of life imprisonment.

The facts

4. At the time of the offence on 9 January 1993, the applicant was 33 years of age. He was a member of a crew aboard a Cypriot container vessel in Victoria Harbour. He and others had been paid off by the captain and were due to return to Turkey that day. The victim was also a Turkish seaman who was noticed not to be "his usual goodself" by a witness before the offence. Earlier, the victim and the applicant had quarrelled. The applicant had taken a considerable amount of drink and was acting in an agitated manner, complaining about his overtime pay. He had armed himself with a knife with which he had slashed his own chest.

5. Later, the earlier quarrel was resumed. The applicant suggests that the victim was swearing at him, making remarks about his girlfriend and kicked him in the stomach. In the event, the drink, the quarrel and the applicant's mental condition led to a frenzied attack upon the victim in which 8 serious stab wounds were caused to the victim's chest and back, 2 to his stomach and 11 less serious wounds to the body.

6. For sometime after the attack, the applicant was completely out of control. He threatened to kill anyone who touched the deceased; he slashed his own chest again; he threatened to kill the captain and the officers and he appeared on deck with both an axe and the knife. In due course when the police arrived, he gave himself up.

The medical reports at trial

7. The medical reports before the judge described the applicant's mental state at the time of the killing, the prognosis and suggested future treatment. These reports can be summarised:

(a) The applicant was suffering from a psychiatric disorder described as borderline personality disorder. This, coupled with alcohol, could disinhibit him and cause more violence and lack of control than in a normal person. That, although complete cure will not occur, this condition is amenable to treatment by psychotherapy which ought to be given in his case along with "alcohol education".

(b) That he was not suffering from any psychotic symptoms.

(c) That, but for difficulties presented by language and culture, a hospital order would be indicated but the necessary facilities for him were not available in Hong Kong.

(d) That, whether sentenced to prison or subjected to a hospital order, it is likely that his mental condition will deteriorate over time.

(e) All were agreed that the only hope of successful treatment to improve the applicant's mental condition would be afforded by his return to Turkey and treatment there in his own language and culture.

The proceedings below

8. The judge concluded rightly that the applicant fell between two stools. On the one hand, he was ill and this is not a case for imprisonment. On the other, if he is confined either in prison or in hospital in Hong Kong, his mental condition would probably deteriorate. In these circumstances, the judge considered the prospect of the applicant being removed to Turkey to serve any sentence imposed. Through the United Kingdom, Hong Kong and Turkey have ratified the Convention on the Transfer of Prisoners 1983. By this, it is possible for the applicant to be transferred to Turkey to serve any sentence. But whether this happens is not a matter over which the courts have any control. This must be achieved administratively by the executive authorities.

9. Having examined the problem with care together with the prospects of the applicant being returned to Turkey and the effect of any sentence passed in Hong Kong upon any sentence served in Turkey in consequence, the judge rightly said:

"I think it is dangerous for me to second guess the effect of the conversion of sentence because (a) we don't know and (b) it is a matter entirely for them. All I can do ... is to pass what I think is the appropriate sentence under Hong Kong law, while at the same time making it clear to the judicial authorities in Turkey the special meaning which a certain sentence in Hong Kong law actually has."

10. In sentencing, he said:

"I turn finally then to the length of the sentence of imprisonment that I should impose. Where for one reason or another an order for detention in a hospital in Hong Kong is inappropriate, the question as to whether the sentence of imprisonment should be determinate or indeterminate depends on whether the defendant constitutes a danger to the public for an unpredictable period of time. If he does constitute a danger to the public for an unpredictable period of time, the court has little alternative but to pass an indeterminate sentence of imprisonment, leaving it to the doctors and the executive to decide when the defendant's condition is such that he no longer constitutes such a danger.

On the basis of the report which I have on you, I have decided that you do constitute a danger to the public for an unpredictable period of time. The passage I have quoted from Dr Connell's report shows that he regards the chance of your mental capacity improving while you remain in Hong Kong is negligible. Moreover, he has expressed the view that the disorder from which you suffer is generally life-long and poorly amenable to treatment. I therefore propose to pass an indeterminate sentence on you."

11. The approach which the judge has taken over the four hearings can be summarised as follows. He concluded on the medical evidence and the facts of the offence that a life sentence was appropriate because nothing could be done to improve his mental condition here in Hong Kong, and that as the mental condition was likely to deteriorate and become unpredictable, this presented such uncertainty that an indeterminate sentence was the only proper disposal.

12. In this, on the information before him, the judge could not be faulted.

The medical evidence on this application

13. Mr Mullick, who appears for the applicant, invites the court to consider the "catch 22" situation. Hope of improvement in the applicant's mental condition depends upon him receiving appropriate psychiatric treatment. This is not available in Hong Kong. Indeed, here his prospects of improvement are diminished. Also, because he will be incarcerated, his condition is likely to deteriorate, with the result that because of the sentence itself, the applicant may present an unpredictable danger for an unpredictable period of time. This led to the imposition of the indeterminate life sentence.

14. Mr Mullick invites us to consider a recent medical report of Dr Singer. Mr Grenville Cross QC, for the Crown, concedes that we may do so.

15. Mr Mullick relies heavily on Dr Singer's conclusions which we summarise as follows:

(a) that the appellant was and is suffering from a personality disorder which does not fit exactly into any particular category but of which the main features are anger and lack of impulse control. He assesses this disorder as mild to moderate.

(b) Having rated the disorder as "mild to moderate" he gives reasons for concluding that "the prognosis is probably not as bad as might be expected" and would improve with treatment by psychotherapy and possibly medication over a period of about two years.

(c) Because of his language problem, the applicant cannot be treated in a psychiatric hospital in Hong Kong. If sent there, he would deteriorate. In normal prison without psychotherapy, he will also deteriorate slightly because of his social isolation. He points out that the period in prison for longer than two years would be detrimental to his mental health and agrees with all the doctors who have reported that he should be transferred to a prison or prison hospital in Turkey.

(d) That the pre-sentence medical reports do not directly address the question of the dangerousness of the applicant's mental condition.

16. For present purposes, the most important part of Dr Singer's report is his conclusion upon "dangerousness to the public". On this he says:

"I have touched upon this under 'Prognosis'. Dangerousness is difficult to predict. He is not highly dangerous. He is no more dangerous nor unpredictable than a mentally normal person with a similar history of violence. Provocation contributed as much as if not more than the Personality Disorder to the offence. By the same token he is not highly dangerous because of the Personality Disorder alone. Neither considerations of appropriate length of period of treatment required nor the need to protect the public from his dangerousness requires that he be kept in a custody for more than a few years."

The submissions on sentence

17. Mr Mullick submits that in the light of this latest report, this case does not fall into one those most exceptional cases in which a life sentence ought to be imposed and that a determinate sentence of imprisonment is correct in principle. He cites the well-known passage in R v Wilkinson (1983) 5 CrAppR(s) 105 at 108 where the Lord Chief Justice of England said:

"It seems to us that the sentence of life imprisonment, other than for an offence where the sentence is obligatory, is really appropriate and must only be passed in the most exceptional circumstances. With a few exceptions, of which this case is not one, it is reserved, broadly speaking, as Lawton LJ pointed out, for offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act, yet who are in a mental state which makes them dangerous to the life or limb of members of the public. It is sometimes impossible to say when that danger will subside, and therefore an indeterminate sentence is required, so that the prisoner's progress may be monitored by those who have him under their supervision in prison, and so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large".

Mr Mullick further contrasts the circumstances in AG's Reference No. 34 of 1992 (1994) 15 CrAppR 167 at 171 in which a life sentence was said to be appropriate on these facts:

"There was the serious offence in relation to the girl and a year later the possession of two extremely dangerous knives and there is a background suggesting mental aberration in regard to sexual proclivity as well as the unanimous medical evidence that this man is highly dangerous to the public at large and to women in particular."

18. Sentences in cases of manslaughter by reasons of diminished responsibility were considered specifically in R v Stephen Francis Chambers (1983) 5 CrAppR(S) Mr Mullick relies upon the passage in Leonard J's judgment at p.193-194 where he says:

"There will however be cases in which there is no proper basis for a hospital order; but in which the accused's degree of responsibility is not minimal. In such cases the judge should pass a determinate sentence of imprisonment, the length of which will depend on two factors: his assessment of the degree of the accused's responsibility and his view as to the period of time, if any, for which the accused will continue to be a danger to the public".

19. For the Crown Mr Grenville Cross submits that in spite of Dr Singer's views, the maintenance of the applicant in custody will result in unpredictability concerning his mental condition, its possible deterioration and its danger to the public for an unpredictable period of time. He cites a number of cases which readily support this proposition and rightly concedes that over recent years, the English courts have tended to apply the conditions necessary for the imposition of life sentence more strictly. Indeed, this accords with the practice in Hong Kong.

Conclusion

20. We also find this an extremely difficult case on sentence. The judge's approach and sentence were impeccable on the information before him. We have the advantage of an additional medical report in which Dr Singer has been able to review the whole case and the applicant's condition after his sentence. Giving full weight to Dr Singer's views, we conclude that the applicant does not represent such a continuing danger to the public consequent upon his mental condition - which it is to be noted is not psychotic - as to warrant an indeterminate life sentence. In these circumstances, we give the applicant leave to appeal. We treat the application as the appeal, and allow the appeal. We quash the life sentence and substitute a sentence of 10 years imprisonment which we consider adequately reflects Dr Singer's assessment of the applicant's mental condition, the danger he represents and the particular circumstances of the offence.

Transfer to Turkey

21. We also express the hope that in pursuance of the international arrangement, the applicant will be transferred to Turkey as a matter of urgency so that he may serve his sentence either in prison or hopefully in a prison hospital in which he can receive appropriate treatment. However, these are not matters over which the court has any control or influence. The most that the court can do in these circumstances is to pass a sentence which is the most appropriate on the basis that it will be served in Hong Kong. There are few circumstances in which the possibility of a prisoner being transferred to his home country to serve his sentence becomes relevant to the sentencing judge. One is when there is a genuine choice as to the appropriate sentence, the court may then seek to avoid a sentence which may prevent an appropriate sentence or proper treatment being given to him in his home country.