Heron, R v

In sentencing an elderly and unwell offender, the court must give weight to the risk that imprisonment may cause serious illness, prevent a return home, or result in death in custody. There is no fixed age at which that consequence requires a particular reduction. The appropriate additional allowance is case-specific and must be balanced against the gravity of the offending, the offender’s role, and the need for deterrent punishment. A sentence may be reduced where the sentencing judge has made insufficient allowance for age and poor health, while preserving the seriousness properly attached to substantial drug importation.

The appellant, aged 77 and in poor health, was convicted after trial at Canterbury Crown Court of importing cocaine. Twenty-five kilograms of powder, with a street value exceeding £1 million, had been concealed in tins in a vehicle registered to her under the Motability scheme.

The sentencing judge found that the appellant had willingly participated in the importation and that her age and health lent apparent respectability to the journey. She imposed 13 years’ imprisonment. The appellant sought leave to appeal against sentence on the ground that insufficient allowance had been made for her age and medical condition.

1. Appeal allowed. The court quashed the sentence of 13 years’ imprisonment and substituted a sentence of 10 years.

2. Age and ill health are relevant mitigating circumstances even in very serious drug-importation cases. The court must consider the real risk that an elderly and unwell offender may become seriously ill, be unable to return home, or die in prison. That risk cannot be eliminated, but it must carry weight in fixing the sentence.

3. There is no general rule that release after the age of 80 requires a particular result. The extent of any further reduction for age and health is necessarily case-specific. The court endorsed the approach in R v Fontes [2005] EWCA Crim 2103, while recognising the exceptional gravity of importing a large and valuable quantity of cocaine.

4. The judge had properly treated the appellant as a willing participant. The court also accepted the seriousness of the offence and the sentencing judge’s experience in such cases. Nevertheless, the reduction from the possible starting point had been insufficient to reflect the appellant’s age, continuing poor health, and comparatively subordinate and inactive role. A substantial but lesser sentence achieved the justice of the case.

• Court of Appeal (Criminal Division) — leave to appeal against sentence was granted. The sentence was quashed and replaced with 10 years’ imprisonment: [2009] EWCA Crim 94.
• Crown Court at Canterbury — the appellant was convicted by a jury on 26 September 2008 of importing cocaine and, on 6 October 2008, was sentenced to 13 years’ imprisonment.