Happe (Aka Peggy), R. v

Supplying controlled drugs within a prison is a grave offence for which immediate custody will commonly be required. Powerful personal mitigation, including age, ill health, caring responsibilities and pressure falling short of duress, must be given substantial weight. It does not, however, make a custodial sentence wrong in principle or excessive where the seriousness of the offending, including the quantity and class of drugs, requires deterrent sentencing.

On an appeal against sentence, the appellate court will not substitute its own view merely because mercy could be urged. It will intervene only if the sentence was wrong in principle or excessive.

The applicant, aged 71 and of previous good character, pleaded guilty at the Crown Court at Maidstone to supplying heroin and cannabis. She had taken packages containing 36.7 grams of heroin and 14.4 grams of cannabis into HMP Swaleside for her imprisoned son.

At a Newton hearing, the sentencing judge accepted that she had faced implicit threats to her son and disabled daughter, although those threats did not amount to duress. The judge found that she did not care which drugs she was importing. He imposed 30 months’ imprisonment for the heroin offence and a concurrent 12 months for the cannabis offence.

Her application for leave to appeal against sentence relied on her age, medical problems, pressure, and the effect of imprisonment on her disabled daughter for whom she had been a carer. The central issue was whether the custodial sentence was wrong in principle or excessive.

1. Application for leave to appeal against sentence refused. The sentencing judge had properly identified both the applicant’s exceptionally powerful personal mitigation and the gravity of introducing substantial quantities of drugs into prison.

2. Drug supply in prison requires severe treatment. Vulnerable people may be used in such offending in the hope that their personal circumstances will avoid the appropriate punishment. Age, ill health, caring responsibilities and pressure short of duress were therefore substantial mitigating features, but did not preclude immediate custody.

3. The judge had already given the mitigation very significant weight. The 30-month sentence was markedly reduced from the sentence otherwise warranted, particularly given the quantity of heroin. The Court distinguished R v Batt [1999] 2 Cr App R(S) 223, where the personal mitigation was more exceptional and the quantity of drugs was far smaller.

4. Mercy is capable of playing a part in criminal justice, but must operate through a principled application to the facts. The Court could not say that the sentence was wrong in principle or excessive, and no further reduction was justified.

• Court of Appeal (Criminal Division): application for leave to appeal against sentence refused: [2010] EWCA Crim 893.

• Crown Court at Maidstone: on 23 December 2009, following guilty pleas entered on 4 November 2009, the applicant received 30 months’ imprisonment for supplying heroin and a concurrent 12 months for supplying cannabis.