Happe (Aka Peggy), R. v [2010] EWCA Crim 893

[2010] EWCA Crim 893

Case No 2010/01103/A2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday 15 April 2010

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

MR JUSTICE DAVIS

and

MR JUSTICE TUGENDHAT

__________________

- v -

Between

MARGARET (AKA PEGGY) HAPPE

__________________

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__________________

Mr M Tomassi appeared for Applicant

____________________

J U D G M E N T

[1]This application for leave to appeal against sentence has been referred to the full court by the Registrar.

[2]The applicant is a woman aged 71. On 4 November 2009, in the Crown Court at Maidstone, she pleaded guilty and on 23 December 2009 she was sentenced by His Honour Judge Gold QC as follows. On count 1, supplying a Class A drug (heroin), she was sentenced to 30 months imprisonment; and on count 2, supplying a Class B drug (cannabis), she was sentenced to a concurrent term of twelve months imprisonment.

[3]The background can be shortly stated. On 1 March 2009 the applicant went to visit her son. He was a serving prisoner at Her Majesty's Prison Swaleside. She was accompanied by her husband, her daughter and her granddaughter. Her behaviour attracted the attention of the prison authorities and the visit was monitored on CCTV. The applicant's movements were suspicious and she was seen to pass a package to her son. The prison authorities intervened and seized the package. It was found to contain 37 wraps containing in total 36.7 grams of heroin and 14.4 grams of cannabis. The applicant's fingerprints were found on the cellophane in which the packages were wrapped.

[4]The applicant was arrested. She declined to comment in interview.

[5]She offered a basis of plea in these terms. Her son was being held, rightly or wrongly, accountable for breaking a mobile phone owned by another inmate. He was told that he had to make reparation for the damage in the sum of £600. The debt was not paid. The applicant received telephone calls to this effect from people she did not know. Two black men attended her home address. They came into her house despite her protests. She offered to pay them the £600. The money was refused. She was told that instead she must take a package into the prison. She was informed that the content of this package was "only blow". It was made clear to her that if she did not do as was requested her son would be harmed. She was told, "You know what could happen to him". Veiled threats were also made to her disabled daughter:

"You have a daughter on sticks, haven't you?"

It was on this basis that the applicant took the drugs into HMP Swaleside and gave them to her son. It was accepted that such threats did not amount to a defence of duress.

[6]In the event, a Newton hearing was held before Judge Gold. The two issues identified by the judge were: first, whether the applicant had acted under a degree of duress; and second, whether she was under the impression that the drugs she took into prison were cannabis (a Class B drug) and not heroin (a Class A drug). The judge made no very specific findings on the extent of the duress, so called. He accepted, however, that two men had visited the applicant and made a series of threats (described by the judge as "more implicit than explicit"), pushed her and made reference to the daughter.

[7]The judge went on to deal with the state of the applicant's knowledge. The judge indicated his view that it was more likely than not that the applicant knew perfectly well that this was indeed heroin that she was taking into prison. However, as the judge rightly said, "more likely than not" did not suffice for the purpose of the burden and standard of proof that he had to apply. The judge found that he was quite sure that the applicant did not care whether the drugs which she took into prison, and which she knew she took in, were heroin, cocaine, cannabis, or anything else.

[8]The judge had before him a pre-sentence report which commented in detail on the personal and medical condition both of the applicant and of her adult daughter. Her daughter is very significantly disabled and has been cared for by the applicant for a considerable period of time. The pre-sentence report indicated that it was the view of the probation officer that a prison term would have a very detrimental effect on the applicant's wellbeing and that of her daughter.

[9]Medical evidence was also placed before the sentencing judge. We have seen it. The background is described. The applicant has spinal nerve block with pain and there is detrusor instability. She has asthma. She suffers from severe depression which was last assessed on 14 October; she is still moderately depressed. She is the carer for her disabled daughter. A further medical report from Dr Kumar also commented on the position both of the applicant and of the daughter.

[10]When

the judge came to pass sentence he said this:

"You are a 71 year old lady of previous good character with not inconsiderable medical difficulties. You have a very demanding daughter with a number of physical and mental difficulties. You are the last person in the world that any judge would want to send to prison. I am prepared to accept that you were acting under a degree of pressure when you embarked on this criminal enterprise. What you then did was to embark on an attempt to smuggle drugs into your son at Swaleside Prison. Your handicapped daughter and your granddaughter were with you when you did that, as well as your husband. You need to appreciate, indeed the community at large needs to appreciate, that taking drugs into prison is a very serious matter indeed. The courts have to make it clear that such offences will be dealt with severely. It is very often the case that vulnerable people, such as yourself, are used to commit such offences in the hope that their personal mitigation may enable them to escape the punishment that they deserve. I regret to say that despite your personal mitigation I have to harden my heart and to impose a sentence that, although very much reduced to reflect your personal mitigation, does result in an inevitable custodial sentence."

[11]Mr Tomassi, in the course of his excellent submissions on behalf of the applicant, which were greatly enhanced by the moderation with which they were delivered, accepts that it is difficult to fault the judge's reasoning and approach. Indeed it is. Mr Tomassi has referred us to a number of authorities, some of which in very broad terms (although each case must be considered on its own facts), indicate the range of sentences which the courts may pass on people who take drugs into prison, notwithstanding that such persons may have very strong personal mitigation, including age, illness, dependency of others and so on. Mr Tomassi placed emphasis on R v Batt

[1999] 2 Cr App R(S) 223

, in which the court felt able to reduce the sentence to one of a two year suspended sentence. However, it must be pointed out that in that case the personal mitigation was quite exceptionally pressing -- more so than in this case. Moreover, the quantity of drugs taken into prison in that case was of a far lesser amount than in the present case.

[12]Mr Tomassi says, rightly in our view, that this is a desperately sad case. It is clear that the judge below formed a similar view. Mr Tomassi submits that this is a case which calls for mercy. He submits, and he is right, that mercy has a part to play in the criminal justice system. Equally, there must be borne in mind the proper application of a principled approach to the given facts of a particular case.

[13]We have received a recent prison report. It indicates that the applicant is coping adequately whilst in prison. Indeed, she has responded well in a number of respects and is gaining in self-confidence. The report says:

"Despite Margaret's age and health status, she has adapted to the prison environment and manages herself appropriately."

[14]Mr Tomassi, however, has urged upon us today not just the position of the 71 year old applicant in prison -- although he said that her husband has noticed a further physical decline in her -- but also the position of her family and in particular of her daughter. We were told that her daughter has been dependent on her mother as carer, has reacted very badly to her mother being absent, and that understandably the husband is having very great difficulty in coping.

[15]We have anxiously considered Mr Tomassi's submissions. This is indeed a very sad case. However, it seems to us that precisely the points that Mr Tomassi has powerfully made were clearly fully factored into the sentence passed by His Honour Judge Gold. His approach was impeccable. Were it not for the extremely powerful personal mitigation, the sentence, not least because of the amount of drugs involved, would have been far greater than otherwise proved to be in this case. We must ask ourselves whether it can be said that this sentence was either wrong in principle or excessive. We cannot say that it is. Nor do we think that any further consideration of mercy can weigh with this court over and above the very significant weight it was given by the sentencing judge. Accordingly, and notwithstanding everything Mr Tomassi has said, this application is refused.