R v Nicole France

In sentencing a parent for a serious drug-supply offence, the court must treat the effect of imprisonment on dependent children as a distinct consideration. It must identify, assess and weigh that impact, and explain how it affects the custody threshold and sentence length. The proportionality exercise requires attention to family-life interference, its lawful and legitimate purpose, and the balance between offence seriousness and child impact. There is no standard reduction. Even where immediate custody remains necessary, compelling care responsibilities, personal vulnerability and rehabilitation prospects may justify a shorter term. Immediate custody may nevertheless be required where festival drug supply, public-safety risks and general deterrence make suspension disproportionate.

The appellant pleaded guilty in the Crown Court at Chester to possessing MDMA and ketamine with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. She was accepted to be a lesser-role courier and was sentenced to 30 months’ imprisonment on the principal count, with a concurrent 12-month sentence on the second count. She appealed against sentence, arguing that the court had failed to give proper weight to her role as the primary carer of a vulnerable child, her health, personal mitigation and rehabilitation prospects. The central issues were whether the starting point was excessive, whether mitigation had been properly assessed, and whether custody should have been suspended or materially reduced.

Leave to appeal was granted. The appeal was allowed to the extent that the sentence on the principal count was quashed and replaced with one of 22 months’ imprisonment. The concurrent 12-month sentence and ancillary orders were confirmed.

1. Starting point. The festival context, quantities of drugs, community impact and antecedents were legitimate aggravating features. An 18-month category 4 starting point, elevated within the range towards three years, was not wrong in principle.
2. Child impact and personal mitigation. The principles in R v Petherick [2012] EWCA Crim 2214 required the court to treat the welfare and likely impact of imprisonment on the appellant’s dependent child as a distinct consideration. The Recorder’s focus on whether the appellant had thought of her son when offending did not apply the correct test.
3. The Recorder also failed to analyse the appellant’s serious physical and mental health difficulties, rehabilitation prospects, remorse, educational engagement and cessation of drug use. His conclusion that the guilty plea was her only mitigation was inconsistent with the evidence.
4. The court applied the structured proportionality analysis derived from HH(Tanzania) and endorsed in R v Petherick. The court had to assess whether custody was truly unavoidable and, if so, whether suspension was appropriate, having regard to the child’s interests, rehabilitation and the disproportionate impact of imprisonment on a vulnerable offender.
5. The custody threshold was crossed because the offence involved Class A drugs brought into a large festival environment, with significant public-safety concerns and a need for general deterrence. Suspension would fail to reflect the seriousness of the offending. Nevertheless, the powerful personal mitigation and child impact required a substantial downward adjustment, resulting in a sentence of 22 months.

• Court of Appeal (Criminal Division): allowed the sentence appeal in part and substituted 22 months’ imprisonment on the principal count.
• Crown Court at Chester: sentenced the appellant to 30 months’ imprisonment on count 1 and 12 months concurrently on count 2.