Nottingham killer Valdo Calocane's sentence reviewed

he on mute this is a reference by the attorney Justice my lady uh I appear on behalf of the solicitor general in this case my learned friend Mr Joyce King's Council assisted by my learned friend Miss Tandy appears on behalf of the offender valdo cakan who is now 32 years of age yes this is an application made on behalf of the solicitor general for leave to refer as unduly lenient concurrent Hospital orders with restrictions imposed upon the offend for three offenses of manslaughter and three offenses of attempted murder yes unless it would assist the court I don't propose to open the fact in any detail but suffice to say uh that in the early hours of the 13th of June of last year the offender went out in Nottingham armed with a number of knives and over the course of about the next 90 minutes he attacked and killed two students who were walking home that's Barnaby Weber and Grace Malik Kumar he unsuccessfully tried to break into a hostel for the vulnerable homeless and he caused Ian coats to stop the van that he was driving killed him and then stole his vehicle he then drove to the city center where he deliberately drove the van at three pedestrians Wayne Burkett who suffered severe brain injuries Sharon Miller and Martin gavronski the court will be aware that in respect of the fatalities the offender was originally charged with three offenses of murder however having received psychiatric evidence the prosecution accepted pleas in respect of manslaughter for those offenses by reasons of of diminished responsibility this court knows but I say it because others listening may not that it is that this court has no power to inquire into that decision to accept the manslaughter pleas and the this is a reference against the sentences imposed on the basis that you say that they were unduly lenient and that is the only question for us today um miss here you will of course take whatever of course you wish but just equally so that everybody understands we have obviously prepared carefully for today's hearing understand we have read the papers and also in terms of managing expectations we do not intend to be giving judgment today we will be reserving our judgment and I hope that that helps everybody um get through the next few hours and and con see the way forward I'm very grateful for that indication my lady can I briefly set out the submissions made on behalf of the solicitor general and of course the court if it has any questions will invite me to respond thank you um the essential submission made on behalf of the solicitor general is that the exceptional level of seriousness of the offenses uh was such that the case required the imposition of a sentence with a penal element an element of punishment and in this case that would be a sentence of life imprisonment with a section 45a hospital and limitation Direction sometimes called a hybrid order let's call it that for today's purposes I'm grateful thank you I've made clear in the reference document submitted that no criticism is made of the learnard judge in his approach to the sentencing process which was in accordance with the guidelines and in particular the guideline for diminished responsibility manslaughter but there are two matters which the solicitor general invites the court to consider the first relates to the calculation of the minimum term everybody accepted I think in the court below that were there to be a a prison sentence it would have to be a a sentence of life imprisonment accepting that the judge was entitled to accept the psychiatric evidence which supported a finding that the offenders level of retained responsibility fell within the lower category within those guidelines nevertheless it is the submission of the solicitor general that there were aggravating features which should have resulted in an increase from the starting point of seven years for a single offense the learner judge made an upward adjustment to reflect totality uh but did not make an upward adjustment um according to his sentencing remarks to reflect the aggravating features which are set out in paragraph 79 of the reference document namely the significant degree of planning and premeditation the use of a weapon not just the knife that was used to kill but also the use of the vehicle which was used as a weapon he had three knives in his bag is that right that's correct Y and others were put at risk of harm by the offender actions not least when uh Mr coats van was driven at members of the public but also in respect of those Within cely first house which was that Homeless hosel uh which uh the offender tried to gain access to no uplift was made to reflect those features the learner judge having accepted uh that the offenses would not have been committed planned or otherwise due to the offender's psychosis however it is submitted that his culpability was not extinguished by his mental impairment but only reduced or diminished he knew what he was doing he acted deliberately and with the intent to kill and therefore these factors it submitted should have resulted in an upward adjustment allbe it from the lower starting point should we have a look at what the judge did um in terms of the minimum term that he arrived at for yes guilty please let's just turn to that if I [Applause] [Applause] may yes it's at um I don't know whether my lady's looking at the digital system but it's at y71 yes at the bottom of the page starting at G thank you um he first of all indicated that he accepted that the level of personal responsibility retained by the offended was at the lower level yes he then said If all other things were equal uh the relevant sentence under the guideline uh would attract a starting point of seven years and the range of course for the lower level of responsibility is between three and 12 years imprisonment yes he indicated that there would be a significant upward uh adjustment to take into account the number of victims involved and the three counts of attempted murder so effectively totality and that a life sentence would be appropriate with a long minimum term he then made an upward adjustment to reflect totality to um 30 years used by a third for guilty plea and then another third to reflect the the the time that he would serve if if such a sentence were imposed and I don't take issue with the the the matters of calculation that are set out in that paragraph uh he was obliged to make reductions to reflect the fact that the whole of the minimum term would be served rather than a proportion yes so that's what the learner judge said about it but it's submitted that a failure to make an adjustment to reflect the aggravating features which are set out uh in the reference doc document and reflect those that are set out in the manslaughter guidelines uh meant that the minimum term that he calculated and arrived at was too short now that in itself in a case like this doesn't mean that the sentence is unduly lenient but in order to determine whether a penal element is required um it was necessary for the court to properly assess the seriousness of the offending taking into account not just the mitigating features which principally uh address the effect offenders uh mental impairment but also the aggravating features to do with the commission of the offenses as well so that's the first point made on behalf of the solicitor thank you very much it's very clear the second point and perhaps the principal submission made on his behalf it reflects the need for a penal element in this case my lady will be more than amiliar with the guidance set out in the headline uh the guideline cases of Vols and Edwards I've set out the uh relevant paragraphs I hope in the reference document at reference paragraphs 75 in respect of vs and 77 in respective Edwards but there must be sound reasons it is established for departing from the usual course of imposing a sentence which includes a penal element punishment now involes the court of appeal identified four factors that the court would ordinarily need to take into account when determining whether there were sound reasons for departure from from that principle paragraph 75 of the reference document or or paragraph 51 of the the case itself firstly the need for treatment secondly uh the court had to consider the extent to which the offending was attributable to the offender's mental disorder thirdly the need for punishment and fourthly the protection of the public and the release regime now in this case there was no dispute that the offender needed treatment for his mental health condition and that his offending was attributable to a substantial degree uh to his mental disorder as to the third uh uh fourth forgive me of those factors the need for the public to be protected and the release regime um the court heard evidence from the doctors at the sentencing hearing three of them for three from three of them and in particular I think Professor Blackwood called on behalf of the prosecution perhaps gave evidence in the most detail yes uh if you want to reference uh he begins his consideration of the competing release regimes at page 1 y 96 But ultimately it was agreed I think between all three doctors that there was likely to be a lengthy period of treatment in hospital whichever sentence was imposed indeed the considered View and of course the doctors don't have a crystal ball but the considered view uh was that it was very possible that he may never be discharged more than that wasn't it very likely very likely yes they agreed that the test for release uh was different as between the two regimes the hospital and restriction order on one side and the hybrid order on the other but the parole board in determining whether the offender ought to be released would take a broader approach to risk without purely focusing on the medical need for detention that's dealt with it the transcript at y99 the parole board was likely to consider the psychiatric evidence in coming to that decision the principal difference between the two regimes would be supervision or the supervision regime within the community if it ever got to that the evidence was that the section 3741 regime would be more responsive because uh the medical team in the community would be more likely to spot if the offender was failing to comply with his treatment but the court was also referred to the guidance in Edwards at paragraph 22 of that report about the multi- agency approach to Supervision in the community following release from prison under the supervision of probation for an offense offenses of this nature anyway which would include input by the mental health agencies Professor Blackwood and indeed I think uh Dr mcweeny were also concerned about the risk to others in prison were a hybrid order to be imposed and the offender to be transferred back to a a a prison following discharge from hospital but it was acknowledged by both I think that the decision whether to transfer the offender from hospital to prison would involve the same kind of risk assessment that would need to be carried out were release into the community in contemplation and it was also accepted that in the event of a re relapse an administrative return to hospital could be affected by the Secretary of State under I think section 47 of the act and it also shouldn't be forgotten of course that the level of supervision in a prison would be much greater than the level of supervision within the community now it has to be acknowledged on behalf of the solicitor general that all of the doctors favored the regime under Section 37 and 41 Hospital order with restrictions but they also made clear in their evidence that their assessment um did not include the need for punishment or a penal element which was beyond their remit and was a matter for the sentencing judge and therefore in the crude nutshell they favored um the hospital with restriction order on the basis there will be greater protection for the public that's right for for the reasons that I've set out that the uh Supervision in the community would be more responsive and the risk to those in prison were he to be transferred to prison and um Authority you've um very rightly referred to on a number of occasions the comment is made isn't it at paragraph 12 um by uh Lady Justice Hallet that the Graver the offense and the greater the risk to the public the greater the emphasis the judge must Place upon the protection of the public that's absolutely you take no issue with that of course not thank you so just drawing the threads of what I've said so far together then the submission is this that where as here the Practical difference in the regimes is limited because a very lengthy custodial term would be warranted within the provisions of a life sentence where a section 45 order uh to be imposed and where the evidence is that due to the nature of the offender's illness it's a treatment resistant type of paranoid schizophrenia then release from hospital under any regime is highly unlikely and in those circumstances it's submitted that the features identified by the doctors do not amount to sound reasons for departing from the usual course of imposing a sentence with a penal element in the exceptional circumstances of this case I I've made it I hope clear in the reference document that there's no attempt to criticize uh the sentencing judge's approach he followed the available guidance but the harm caused and the harm risked in this case to members of the public by the offender's crimes uh was extreme there are no decided cases of a similar level of seriousness and therefore the court is invited to consider whether in the particular circumstances of this case a penal element was required and whether the sentencing judge Ed in imposing the hospital order with restrictions that he did concurrently on each offense I hope that's put the position clearly I don't know whether the court has any questions very well put very clear um very effectively done thank you very much indeed can I go back to your first submission just with one question before asking my lords whether either of them have any question questions this relates to the submission that there was an inadequate um uplift to take account of the aggravating features that you've identified yes could I take you to Professor blackwood's evidence in Cross examination at y 108 why sorry 108 page 31 of 66 the transcript for the second day of the fullo hearing yes I have the 24th yeah 24th of January it was yes I have page y 108 so so Mr Joyce asks Professor Blackwood um and in fact it starts at y 107 letter H page 30 question when it's put that there are aggravating features of planning and so on as you've heard we're actually talking are we not about one psychotic episode in which all these other events took place answer by Professor blacko yes all the features that were mentioned in terms of purchasing weapons changing SIM cards calling his brother changing his shoes discarding the hold all Etc all occur in the context of an active psychosis question missing out um the first three lines which don't matter it in fact comes down does it not to all this to this all those aggravating features that you say make it worse or that that are said to make it worse are in fact part of one psychotic episode of intense severity and Professor Blackwood answerers yes does that affect your submissions well I can't go behind the evidence that was called in the court below and that and this court is bound by that evidence and I have to accept that I suppose there are two points to be made the first is that even accepting that this was or these were offenses committed within the context of a psychotic episode nevertheless the impairment though substantial did not extinguish the culpability of the offender and therefore although the lower starting point of seven years was taken nevertheless an upward adjustment was required allbe it perhaps not to the same extent as would be required if a a higher starting point was taken because the impairment was less understood so that that's the way in which I Joyce my lady has effect ly dealt with the question of planning that was raised by the sister at the end of their document by quoting at the foot of page 30 and the top of page 31 from the transcript of my cross-examination of Dr Blackwood those were the very lines I was going to address the court with in answer to the suggestion that has been made throughout the case as to the question of planning what is plain is that any planning took place under the influence of the psychosis and I'm going to if necessary go into a little detail as to that psychosis so we can see from the evidence of Dr Blackwood Professor Blackwood just how grave it was and I say that for these reasons I don't imagine for a moment that the court hasn't carefully read the transcripts of all the three psychiatrist evidence do Professor Blackwood Dr mcweeney and also Dr mvis the treating clinician at Ashworth Hospital the effect though of that is that all agreed and these are very important words but for the psychosis these offenses none of them would have been committed and that has to be seen in light of the evidence again dare I say in cross-examination of Professor Blackwood that in this particular case this particular man had been suffering from oid schizophrenia since 2019 it was forly diagnosed in 20120 again the court will have seen reference to the various episodes in which the psychosis or outbreaks of his psychosis subject to paranoid schizophrenia Afflicted him and that's relevant for a number of reasons first there is no concoction here at all because that seems to have been at least at the time part of the suggestion by some others that is not right there was no concoction this was a man as the court heard from all the evidence who until he was stricken and again the court would have seen the early part of my my cross-examination of Professor Blackwood he was stricken by this Dreadful condition through absolutely no fault of his own he didn't cause it to happen to him by taking drugs he didn't cause it to happen to him by his behavior he didn't cause it to happen to him by taking alcohol it could and this is the evidence it could happen one in aund of us at any time without it being anyone's of our fault this was a hardworking man who had put him through University perversely in a degree of engineering that contributed in no small part to the effect of the psychosis upon him he did it in this way he had studied radiophonics and the like and he came to believe that he was being controlled by outside forces and he hated it and my lady will have seen and my lords will have seen as well the evidence of Professor Blackwood as to the effect upon him he describes how he is afflicted by Voices That control him voices that he hates voices that he can do nothing about and that is part of the reason as Dr mvis in his latest report says he believes he still doesn't fully believe that he's suffering from a mental illness Because he believes that those voices are real those voices he is still hearing those voices are gloating at the trouble they have got him into here that they got him into back in nating him and they are pleas pleased at the result of the effect that they've had on him that's the effect of Dr M's report so it's entirely legitimate Mr Joy to emphasize the gravity of the condition and we um hear what you say but we are familiar with the the medical evidence and the cross examination so if there's anything particular think we might be missing then by all means emphasize it but I think there are two submissions against you that you could perhaps just encapsulate your I deal with the one yeah I deal with the other in this sense if but for this condition he would not have committed any of these offenses it is in my submission wrong and it's not found to be other than Wrong by the authorities to which you've been referred including the last case which Mr Justice Turner was good enough to bring to our attention at first instance it's wrong to say in those circumstances is if the responsibility retained is at the very lowest end bordering on being no responsibility through Insanity it actually comes to this he is to be punished for being mentally ill and that is wrong our submission really goes completely opposite as you know to the solicitor submission and our submission comes to this they concede that the Learned judge and he had all the appropriate guidelines and cases brought to his attention you can see from the sentencing remarks that he went through all those considerations carefully steadily sensibly and not emotionally you can see that he applied the law on the authorities fully and he came to this conclusion the conclusion that the proper sentence was a hospital order under Section 37 together with the Restriction under Section 41 having um read the submissions over the two days um is it fair to say that neither you nor Prosecuting Council below um was suggesting that either option was if I can use the phrase out of bounds the judge had a choice to make but nobody was saying the other order the one that that person was not going for was out of bounds M lady original defense note we said that the prosecution were absolutely wrong and it could only be a section 37 section 41 and what about the prosecution oh they they were saying it should be a hybrid order I know were they saying that anything else was out of bounds yes right that's difference I'm drawing a distinction of course between saying we suggest that this order a hybrid order is appropriate more appropriate obviously more appropriate was it being said that a hospital restrictions order was out of bounds completely wrong as a matter of principle or fact no it was being saying it was preferable that it should be a hybrid well that's that's how I read the submission so I'm drawing a distinction between saying on the one hand this is the better preferable right course of action yes um to saying that something is completely out of bounds and wrong nobody was saying either option was out of bounds as I read it no no not any that sense no thank you I interrupted you Mr Joyce no no it's quite all right I suppose in the simplest possible language what we on behalf of Mr cakan are saying is this on all the evidence he is very likely to spend the remainder of his days in a secure or to a degree secure mental hospital for what happened in Nottingham on that Dreadful day it follows from that and when one reads the evidence from the latest statement of Dr mvis that whatever the case he's going to be there receiving treatment for a long time it doesn't seem as if there is a particularly active response if I can say that to the latest drug therapy yet and it doesn't seem as if yet according to Dr mvis he has been persuaded want of a better word that he is ill rather than afflicted by these voices and outside controllers the doctors were right he's never likely to see the light of day again and if that's right and if that's the effect of the sentence that Mr just his turn have passed upon him the question we pose if you like in layman's language is how can that possibly be an unduly lenient sentence in anyone's Parliament lady may I finish like this please we have tried to help by setting out in our eight page defense document all the matters that we relied upon and rely upon to repeat them now would be mere repetition knowing that you've all read them since you're going to reserve judgment in this case can we invite you to read them again but particularly to read again the evidence of the three psychiatrists because they make it absolutely plain that they were in full agreement and they make it absolutely plain that this defendant's moral culpability if I can so describe it was at the very bottom end of the scale because of the degree of the illness in which he is still grievously suffering and you can see part of that in one of the replies that Professor Blackwood gave to me that he wasn't at all surprised that Mr cakan took months before he even trusted usart from going through the documents I'd be repeating myself no thank you Andrew you got any questions question no thank you Mr Joyce Mr uh there's nothing further that I'd want to add unless the court has any questions of me no um thank all Council involved for their very helpful submissions what uh we will do now is Rise shortly just to consider where we go next as I've indicated um we uh will be reserving uh judgment but I think we should have a final discussion before we come back and confirm that so for the members of everybody in public and online we're just going to rise now for 5 minutes or so and then we'll come back into court and tell you what our next steps will be thank you hi [Applause]

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Length: 36min 37sec (2197 seconds)

Published: Wed May 08 2024