DM, R. v

A serious medical condition or reduced life expectancy does not ordinarily justify appellate interference with an otherwise appropriate sentence. The sentencing court may give limited weight to age and health where imprisonment will have a greater impact, and may exceptionally reduce the sentence as an act of mercy. Those factors must be balanced against the seriousness of the offending, harm to victims and the public interest. Later deterioration in a known condition may be considered only in rare cases and on fresh evidence. Treatment, hospital transfer and compassionate release remain matters for the Secretary of State and prison authorities; life expectancy alone does not justify reducing sentence.

This was an appeal against sentence by a 77-year-old appellant convicted at the Crown Court at Aylesbury of six historic indecent assaults against his daughter, A, committed between 1971 and 1980. On 15 February 2019 he received a total custodial sentence of nine years, including a sentence under section 236A of the Sexual Offences Act 2003 for the count involving penetration.

The appeal concerned whether the sentencing judge had sufficiently considered the appellant’s prostate cancer and whether deterioration after sentence, together with his reduced life expectancy, required a reduction. The full court granted leave and directed further medical and prison reports, including information about compassionate release. The central issue was whether the sentence was or had become manifestly excessive.

Appeal dismissed. The sentence was not manifestly excessive.

1. The court applied the approach in R v Stephenson [2018] EWCA Crim 318, which followed and applied R v Bernard [1997] 1 Cr.App.R (S) 135. Reduced life expectancy or a serious medical condition does not generally justify appellate interference with an otherwise appropriate sentence. A serious condition, even if difficult to treat in custody, does not automatically entitle an offender to a lesser sentence.
2. Medical condition may nevertheless be considered in mitigation where imprisonment will have a greater impact, or exceptionally as an act of mercy. The approach in R v Clarke and Cooper [2017] EWCA Crim 393 requires age, health, diminished life expectancy and the prospect of dying in prison to be balanced against the gravity of the offending, harm to victims and the public interest in appropriate punishment. Grave illness does not preclude imprisonment.
3. Where a medical condition known at sentence has significantly deteriorated, the Court of Appeal may adopt a more flexible approach, but such cases are rare. The appellant must come within the Bernard principles, and the medical evidence establishing deterioration must be received as fresh evidence under section 23 of the Criminal Appeal Act 1968.
4. The sentencing judge had taken account of the information then available. The later medical evidence would not have demonstrated greater mitigation, and reduced life expectancy would not have altered the sentence. The appellant was receiving appropriate care. Any later transfer to hospital or compassionate release was a matter for the Secretary of State and prison authorities, not the court.

1. Court of Appeal (Criminal Division) — The renewed appeal against sentence was dismissed on 11 February 2021. The full court had granted leave on 10 September 2020 and directed further medical and prison reports. [2021] EWCA Crim 203
2. Crown Court at Aylesbury — The appellant was convicted on 22 January 2019 and sentenced on 15 February 2019 to a total of nine years’ imprisonment.