Cahill, R. v

HIV-positive status, reduced life expectancy and serious illness do not ordinarily require a reduced custodial sentence. Nor does difficulty in treating illness in prison automatically justify that result. However, sentencing remains an individual assessment. Exceptionally grave and vulnerable health, particularly where continuous specialist treatment and monitoring are critical, may justify suspending an otherwise appropriate custodial term.

The appellant pleaded guilty before magistrates to possessing ketamine, a class C drug, and amphetamine, a class B drug, each with intent to supply. He was committed to the Crown Court at Blackfriars and received concurrent nine-month sentences on 22 January 2009.

He appealed against the immediate custodial effect of those sentences. He had advanced HIV infection, active Kaposi’s sarcoma, multiple drug resistance and a critical need for continuity of specialist treatment and regular hospital monitoring. The central issue was whether those circumstances justified suspension of the custodial terms.

1. Appeal against sentence allowed. The court did not disturb the concurrent terms of nine months, which reflected persistent dealing in class B and class C drugs. It held, however, that the terms should have been suspended.

2. Bernard [1997] 1 Cr App R(S) stated the ordinary principles that HIV-positive status or reduced life expectancy will not generally affect sentence, and that even a serious condition which is difficult to treat in prison does not automatically justify a lesser sentence. Those principles did not determine the present case without regard to its exceptional facts.

3. The appellant had AIDS rather than simply HIV-positive status. His advanced and vulnerable condition, active Kaposi’s sarcoma, resistance to most available medication, and need for uninterrupted specialist drug treatment and hospital supervision made the case exceptional. Those circumstances justified suspension despite the seriousness and persistence of the offending.

4. The nine-month sentences were suspended for two years. The supervision and operational periods were each fixed at two years under the Criminal Justice Act 2003. A residence requirement was imposed requiring the appellant to live at his current address.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and suspended the concurrent nine-month sentences for two years.
• Crown Court at Blackfriars: On 22 January 2009 imposed concurrent sentences of nine months’ imprisonment for possession of ketamine and amphetamine with intent to supply.
• Magistrates’ court: On 18 December 2008 the appellant pleaded guilty and was committed to the Crown Court for sentence.