AS, R. v

Serious disability, grave illness, terminal illness and old age do not exempt an offender from immediate custody. Save for the very rare Article 3 case, a sentence may be reduced only where the individual circumstances justify exceptional mercy because imprisonment bears much more heavily on the offender than on an ordinary prisoner.

Fresh medical evidence of a significant deterioration in a condition known at sentence may be received under the Criminal Appeal Act 1968, but only rarely and in compelling cases. A terminal prognosis does not itself justify release before death. It is nevertheless relevant to the exceptional-mercy assessment, which must balance personal hardship against the gravity of the offence, harm to the victim and the public interest in appropriate punishment.

Two unrelated sentence appeals were heard together because each appellant relied on serious ill health. AS had pleaded guilty to causing or inciting a child to engage in sexual activity. She received 20 months’ imprisonment and contended that her severe physical conditions and depression justified suspension of the sentence.

SM was convicted of rape of a highly vulnerable adult and received nine years’ imprisonment. He had motor neuron disease. He contended that the sentencer had failed to allow for his terminal condition and that subsequent medical reports showed a marked deterioration and a much shorter prognosis.

The court adjourned both appeals for further medical evidence. The central issues were the proper sentencing effect of grave and terminal illness, and when post-sentence medical evidence may be received under section 23 of the Criminal Appeal Act 1968.

1. AS’s appeal was dismissed. SM’s appeal was allowed. The court quashed SM’s nine-year sentence and substituted five years’ imprisonment. It declined to admit AS’s psychiatric report because, although capable of belief, it could not afford a ground for allowing her appeal. It admitted the later evidence concerning SM’s condition under section 23 of the Criminal Appeal Act 1968.

2. The court followed the principles in R v Bernard [1997] 1 Cr App R (S) 135. A serious medical condition, even one difficult to manage in prison, does not automatically warrant a lesser sentence. Exceptional mercy may justify a reduction where custody will bear exceptionally heavily on the individual, but serious offending can still require imprisonment. The court adopted the need, stated in R v Clarke; R v Cooper [2017] 1 WLR 3851, to balance the offender’s age and health against the gravity of the offending, harm to victims and the public interest in punishment.

3. A significant deterioration after sentence in a medical condition already known to the sentencer may exceptionally be considered on appeal. The appellant must satisfy the Bernard principles and the fresh evidence must be receivable under section 23. Those linked requirements create a substantial obstacle except in compelling cases.

4. A terminal prognosis is not, by itself, a reason for reducing a sentence beyond what the Bernard principles justify. The possibility that the offender will die in custody is for the Secretary of State’s compassionate-release powers. However, the knowledge that death is likely to occur in prison, and the increasing hardship during the decline, are relevant to whether custody is exceptionally more onerous.

5. AS’s health made custody harder, but the judge had already made a substantial reduction and her evidence showed no direct causal connection between depression and the offence. Her circumstances did not justify both a markedly reduced sentence and its suspension.

6. In SM’s case, the sentencing judge erred in treating his terminal illness solely as a matter for the Secretary of State. The fresh evidence established serious deterioration and near-term death. Nonetheless, immediate release or suspension would not preserve the necessary balance for this grave rape. Five years was the shortest sentence properly available; any earlier compassionate release remained for the Secretary of State.

• Court of Appeal (Criminal Division) AS’s appeal against a 20-month immediate custodial sentence was dismissed. SM’s appeal against a nine-year sentence was allowed; the sentence was quashed and replaced with five years’ imprisonment.
• Crown Court at Birmingham AS was sentenced on 29 August 2017 following her guilty plea.
• Crown Court SM was sentenced on 9 December 2016 following his conviction for rape.