In two separate cases the defendants were aged 101 and 96 respectively at the time of sentence after they had been convicted of sexual offences committed many years earlier. The total sentences were, in the first case, 13 years’ imprisonment and a further licence period of two years, and, in the second case, three years’ imprisonment and a further licence period of one year. Each defendant appealed against sentence on the grounds that sections 244 and 244A of the Criminal Justice Act 2003 overrode section 142(1) of the Act and had the effect that a court was obliged to pass a sentence which, regard being had to the age of an offender, was one which could reasonably be expected to be one where the offender would be able to serve the requisite custodial period as defined by those sections, namely half of the appropriate custodial term for the offence(s). The defendant in the second case raised as a ground of appeal that a sentencing court should treat old people as if they were terminally ill and constituted a special class of offender comparable to those under 18 and mentally disordered offenders, each of whom was subject to special consideration in sentencing. Each defendant also raised as a ground of appeal that his sentence was manifestly excessive.
On the appeal—
Held, appeals dismissed. The guidance previously given by the Court of Appeal, and regularly applied since, was that a limited degree of mercy might be shown to an offender who was of advanced years. The argument based on sections 244 and 244A of the Criminal Justice Act 2003 could not be accepted because to do so would involve the court ignoring the well-established principle that the court should not calculate sentence by reference to early release possibilities. In any event there was no need for the defendants to go down that route, as the issue raised could be perfectly well approached by considering whether the guidance should be changed in the case of very old offenders. There should be no change. Whilst an offender’s diminished life expectancy, his age, health and the prospect of dying in prison were factors legitimately to be taken into account in passing sentence, they had to be balanced against the gravity of the offending (including the harm done to victims), and the public interest in setting appropriate punishment for very serious crimes. Accordingly, whilst courts should give the most anxious scrutiny to, and make allowance for, the factors of extreme old age and health, the approach of taking them into account in a limited way was the correct one. Sentencing had to be done on a case by case basis and the court would require evidence and information specific to the particular offender; it could not be accepted that the court could approach the matter on a more general basis by looking at statistical material and making general assumptions as to life prospects by reference, for example, to where an offender lived, and to the sort of life he or she had led in the pas. Further, there was no warrant for treating the aged as akin to terminally ill individuals, as that again would be to approach the matter by reference to the general rather than to the specific; the submission that old age should be treated as a special category akin to offenders under 18 or those with mental disorders foundered on the fact that they were treated differently because their culpability was reduced. In the particular circumstances the sentences were not manifestly excessive, though it was necessary to make technical changes which would not alter the overall sentences (paras 14, 24–27, 47, 51–52, 65–68).
Kevin Hegarty QC (assigned by the Registrar of Criminal Appeals) for the defendant Clarke.
Patrick Mason (assigned by the Registrar of Criminal Appeals) for the defendant Cooper.
Miranda Moore QC (instructed by Crown Prosecution Service, Appeals Unit for the prosecution.