Heron, R v [2009] EWCA Crim 94

Case No 2008/05678/A8[2009] EWCA Crim 94
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 15 January 2009
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE McCOMBE
and
MR JUSTICE DAVID CLARKE
Between
R E G I N ACrown- v -
Between
AMBROZINE HERON
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Miss A Milligan appeared for Applicant
J U D G M E N TThursday 15 January 2009
[1]This is an application referred by the single judge to the full court for leave to appeal against sentence. We grant leave and proceed to deal with the appeal.[2]The appellant, Ambrozine Heron, is 77 years of age. On 26 September 2008, in the Crown Court at Canterbury, before Her Honour Judge Williams and a jury, she was convicted of an offence of importation of a Class A drug (cocaine). On 6 October 2008 she was sentenced to thirteen years' imprisonment, with a direction under section 240 of the Criminal Justice Act 2003 that 199 days spent on remand should count towards the sentence.[3]The appellant's daughter, Paulette Chambers (aged 49) was a co-defendant. She pleaded guilty to the offence and was sentenced to fourteen years' imprisonment. A male co-defendant was acquitted by the jury.[4]The prosecution arose from the following facts. On 21 March 2008 a Nissan Pathfinder motor vehicle was stopped by Customs officers at Dover Docks. The male co-defendant was the driver. The appellant was sitting in the back of the vehicle. Her daughter was in the front passenger seat. The driver said that they had been away for three days visiting friends in the South of France. The lady in the front, he said, was his girlfriend and the appellant was her mother. A detector dog showed interest in a bag which was in the front of the third row of seats of the vehicle. On a more detailed search two large shopping bags were found which contained a number of items. At the bottom of each bag were twenty tins which purportedly contained fruit, but in fact contained cocaine. Subsequent analysis found that they contained 25 kilograms of powder, which represented 16 kilograms at 100% purity with a street value a little over £1 million.[5]The appellant was the registered owner of the vehicle. She had obtained it under the Motability scheme, she being both elderly and disabled. Enquiries showed that it had been taken to France on the previous day. There was mobile telephone evidence revealing contact between the defendants. It was also shown that the vehicle had made fourteen trips to France in the previous six months. The appellant had been present on some of those trips.[6]When arrested, the appellant said that although the vehicle was hers she could not drive. She did not know where they had gone in France. She had slept two nights in the vehicle. Her daughter had arranged the trip and bought the tickets. She had a bad memory and could not remember what had taken place during the trip. She had no previous convictions.[7]No pre-sentence report was sought or prepared. A brief medical report from the appellant's general practitioner set out that she suffered from asthma, hypertension, diabetes and osteoarthritis. She took a substantial number of prescribed drugs for those conditions. She suffered a stroke in 2006, but no details are give as to the degree of gravity or ongoing disability arising from that. She is registered disabled. She walks with some difficulty with the use of a stick. The Motability vehicle was used by her to get about. It was normally driven by her daughter, who was also her carer.[8]In passing sentence the judge referred in clear (albeit conventional) terms to the seriousness of the importation of cocaine and the damage which it causes in society, as well as the vast profits to be made from the importation. The judge emphasised the quantity involved in this case and then said:
"The vehicle in which you were travelling was the Motability scheme vehicle which you, Ambrozine Heron, were entitled to by reason of your disabilities."
In addressing the appellant's daughter, the judge said: 9. "You, Chambers, I have no doubt on all the evidence before me were a prime mover in this importation, but you, Heron, .... on all the evidence before me, including your own evidence which I saw and heard you give, were a willing participant in this importation. I have no doubt that your role in the car was to add some respectability to the journey by reason of your age and your health problems, but it has been said that the personal circumstances of the defendant in cases such as these are of far less weight that in other cases. In mercy I give some credit and account for your age and ill health as far as you are concerned, Ambrozine Heron. 10. You, Chambers, pleaded guilty at the door of the court. I accept that some damning evidence had been served quite recently prior to your plea of guilty. I give you credit for your plea of guilty." 11. "You, Paulette Chambers, the least sentence in my judgment I can impose upon you is one of fourteen years' imprisonment. That would have been on the basis of sixteen years had you continued to contest the case. 12. You, Ambrozine Heron, the least sentence in my judgment I can pass upon you is one of thirteen years' imprisonment."[9]Those were concise sentencing remarks. The Advice and Grounds of Appeal prepared by Miss Milligan are no less concise. No criticism is made of the starting point of sixteen years taken in the case of Paulette Chambers. Nor does counsel criticise the conclusion of the judge that the appellant was a willing participant whose presence was for the purpose of adding some respectability and diverting suspicion. She had taken part in some of the earlier journeys as well as this one. The judge said that she gave credit for the appellant's age and state of health in arriving at the sentence of thirteen years' imprisonment following a contested trial.[10]The submission made, however, is that the sentence was nevertheless too high in the light of those factors. A sentence of thirteen years' imprisonment, of which she can be expected to spend half in custody (less the period of six months spent on remand), would mean that she will remain in prison until she is 83 years old.[11]We have been referred to a number of decisions of this court reviewing sentences passed on elderly defendants. The cases illustrate that where elderly people are involved in offending of this nature, it is because they are being used to give some cloak of respectability to such enterprises and to divert suspicion from them. But the cases establish that regard must be had to the risk that, owing to age and ill-health, the offender may become ill or die in prison. It is not a risk that can be avoided, but it is one to be taken into account.[12]We do not derive from the authorities any clear principle as to the amount of further discount which should properly be made. It must be case specific. We have been referred to two older cases in the context of sexual offending: R v W (Times, 26 October 2000) and R v Anderson [1999] 1 Cr App R(S) 273. In W it was said that the age of the defendant is to be taken into consideration in sentencing and that the sentence should accordingly be reduced if the appropriate sentence for the offences of which the offender had been convicted or pleaded guilty would result in his release when he is well over the age of 80. There can be no general principle that the age of 80 is in any sense a cut-off, but it is a factor that must be given weight.[13]We are assisted by the decision in R v Fontes [2005] EWCA Crim 2103 (Nelson and Henriques JJ, 15 July 2005), in which the appellant, who was a man aged 75, pleaded guilty to an offence of importing a quantity of cocaine which on a tariff basis after a contested trial would have justified a sentence of eleven or twelve years' imprisonment. The appellant had health problems. The judge, who imposed a sentence of seven-and-a-half years' imprisonment, said that he had given credit for the appellant's early plea and his good character, but that he had become involved in this high value scheme even though he was sick and elderly. No mention was made in the sentencing remarks of the appellant's age and health, but following sentence counsel queried whether the judge had taken them into account. He said that he had. This court agreed with the judge as to the tariff sentence. In giving the judgment of the court Nelson J held that the discount for the early plea was appropriate, but went on to conclude that the judge did not give sufficient further discount for the appellant's age and poor health. He said this:
"13. .... The risk of the appellant becoming ill in prison or indeed so ill that he is unable to return home or indeed even of dying in prison is one which must be taken into account by the court. It seems to us to be right to reflect the age and health in substantially greater discount than the court has given in spite of the seriousness of this case. We consider that a sentence of five years would meet the justice of the case in this particular matter."
The court therefore reduced that sentence to one of five years' imprisonment.[14]That, albeit a decision of a two judge court, is one which carries considerable weight with us. There is a further decision of a two judge court in R v Mendel Rand [2007] EWCA Crim 840, although that is a case at a much lower level of seriousness, where the appellant's age and frailty, coupled with the long delays which had occurred in the proceedings as he was growing yet older, persuaded this court to order immediate release.[15]We have concluded in this case that the judge made insufficient allowance for the age and poor health of this appellant. There is still room in the sentencing process for the exercise of some modicum of mercy. It is not entirely clear from the sentencing remarks whether the judge took the same starting point of sixteen years that she had taken for the daughter. If so, our view is that the starting point could properly have been a little lower in the light of the appellant's subordinate and inactive role in the expeditions. Counsel, however, has not criticised the starting point in her written grounds and advice. We consider that the discount to thirteen years' imprisonment was insufficient to reflect those important factors in the case.[16]We fully recognise the gravity of this case in view of the amount and the value of the drugs involved. We further recognise that this was a sentence passed by the resident judge at Canterbury Crown Court who has great experience of dealing with drug importation cases. However, we have concluded that the sentence must be reduced. We have received further information from the prison where the appellant is presently held, setting out her continuing medical state. The arthritic condition causes her problems and there are other conditions which are under further investigation. In particular her blood pressure is not well controlled. She has a good, polite, well-behaved attitude within the prison. She was previously in another establishment where her daughter was also detained, but she is now in semi-open conditions.[17]In the circumstances we quash the sentence of thirteen years' imprisonment and substitute for it one of ten years' imprisonment. The appeal is allowed accordingly.