Agus, R v

MR JUSTICE WARBY: This is an application for leave to appeal against sentence and for bail which has been referred to the court by the Registrar of Criminal Appeals. We grant the application for leave and continue to consider the substantive application.

The appellant is Vivianne Marjorie Agus, aged 48. On 9th June 2017, she pleaded guilty to an offence of conveying list A articles into a prison. The articles were four tablets of Buprenorphine, a controlled drug of class C. On 30th June 2017, she was sentenced in the Crown Court at Hull by Mr Recorder Kelbrick to two months' imprisonment for that offence. At the same time the judge activated in part a suspended sentence previously imposed upon her. That sentence was six months. The judge activated two months of that sentence, making that period consecutive to the sentence for the prison offence.

The suspended sentence was imposed for the appellant's part in helping her partner Brian Buttery and another man in connection with an armed robbery which they carried out in a Spar supermarket in Skegness on the evening of Christmas Eve 2015. The men were masked and one had a machete. The appellant's role was to drive her partner away after that offence to help him avoid detection. For assisting an offender by impeding his apprehension she was sentenced on 23rd June 2016 to six months' imprisonment suspended for 24 months. Mr Buttery himself was sentenced to three years.

He was serving that sentence when the drug offence was committed nine months later, on 16th March 2017. It was regrettably not unusual on its facts. Mr Buttery was in Everthorpe Prison. The appellant went to visit him there, as she often did. On her way in she signed a form emphasising the prohibition on taking articles into the prison. She was searched and the four tablets wrapped in cling film were found on the floor below her. She told the prison officer: "It was mine. I was going to give it to him. He is under pressure. He had people threatening to shank him."

The appellant was arrested and made no comment in interview. She had a previous caution for bringing a list C article into a prison. That was in 2010. The person to whom she sought to deliver the article on that occasion was Mr Buttery.

In the appellant's favour it must be said that she had indicated an intention to plead guilty at an early stage, when the matter was before the magistrates. That was in addition to the admission she made when discovered. She was entitled to full credit for her plea of guilty. Nevertheless, the facts do not provide a promising background to an appeal against short custodial sentences of the kind imposed here.

First, as acknowledged in the written advice of counsel who represented Miss Agus before the sentencing judge, a defendant who comes before a court charged with taking drugs into a prison can ordinarily expect a prison sentence. The reasons are obvious, have been often explained and are probably better appreciated by the public today than they have been in the past. Drugs and prisons make a very dangerous mix. Offending of this kind is often marked by much longer sentences than this one, particularly where the person concerned is a repeat offender. The authorities indicate a range of four to eight months.

Secondly, as also acknowledged in counsel's written advice, someone who re-offends when subject to a suspended sentence can expect that sentence to be activated. The court is bound by statute to activate the sentence in whole or in part unless it would be unjust in all the circumstances.

What is said on behalf of the appellant can be shortly summarised. It is that there was such exceptionally strong mitigation in this case that immediate imprisonment for the drug offence was manifestly excessive. The judge, it is said, failed to give sufficient weight to that mitigation. A further suspended sentence order could and should have been made.

The mitigation identified by counsel and relied on by Mr Griffin in argument before us today is, in addition to the early plea of guilty, the following. First, the facts of the offending, which are said to have resulted from pressure applied by others; secondly, some vulnerability of the appellant to the influence or pressure of others; thirdly, the lack of other significant offending apart from that which led to the suspended sentence; and fourthly and most prominently her family circumstances. She is the mother of four children, one of whom has a range of profound medical difficulties such that she needs 24-hour care seven days a week. The appellant also has a grandson with a problematic medical condition and is a carer for him. Imprisonment of the appellant has significant consequences for these and no doubt other family members.

It is not possible to verify what has been said about the way the offence came about and the appellant did not, so far as we are aware, plead guilty on a basis. It is however true that the matters for which she was sentenced on this occasion and the caution which we have already mentioned are the only matters recorded against the appellant in the past 30 years. Some of the other points relied on find some support in the pre-sentence report that was before the sentencing judge. The appellant said then, as she had when found out, that she took the drugs into prison as her partner was being threatened. She was a full-time carer for the daughter we have mentioned, who has complex needs. She focused in interview on the care required by that daughter and she appeared concerned and frightened.

A medical report relating to that daughter was attached to the pre-sentence report. It confirmed that the daughter, aged 29, is wheelchair-bound, epileptic, anorexic, with brain damage, autism and heart issues. She is a plainly in need. Mr Griffin also prays in aid, as he is able to now, the fact that the appellant has now experienced a prison environment and felt the impact on herself and her family of incarceration and separation. We also have, thanks to the efforts of the Registrar, the benefit of a prison report which is generally favourable.

In our view, this is a case in which the offending on its face presents a depressingly commonplace factual picture involving serious offending which would ordinarily be met with a considerably longer sentence of imprisonment than this judge saw fit to impose. There are however some powerful mitigating factors which the sentencer described as "huge". Those factors amply explain the course he took, which he described as reducing "massively" the sentence which he would otherwise have passed. Should he have gone further? In our judgment, the answer is "no". Making the fullest possible allowance for all those factors that we have mentioned for which we have seen independent support, we do not accept that the approach adopted by the sentencing judge resulted in a sentence that was manifestly excessive.

The Sentencing Council Definitive Guideline on the imposition of custodial sentences identifies factors that weigh in favour of and against suspending a prison sentence. Among those that weigh against doing so is the fact, if it be so, that appropriate punishment can only be achieved by immediate custody. Weighing in favour of suspension are strong personal mitigation and the fact, where this is so, that immediate custody will cause others to suffer a significant harmful impact. Here there is obvious force in the point that anything less than immediate custody would fall short of appropriate punishment. The personal mitigation offered on the appellant's behalf is not so strong as to outweigh this. In this context, we note that the author of the PSR identified in the appellant's record what she described as "a pattern of trying to please her partner by committing criminal offences". That appears to us to be a fair analysis.

We readily accept that the appellant's family is unusually challenged, and that she is a key figure whose presence within the family is important to others. The interests and indeed the human rights of her partially dependent child and grandchild are factors we must take into account. But such rights are not necessarily infringed by the imprisonment of a close relative for serious criminality, which serves a legitimate aim. It is not to be assumed that when a parent is in prison the State will abandon dependent children. In this case, the pre-sentence report noted that there was a local authority support package of five-day-a week care in place for the older daughter;  that is why we have described that daughter as "partially dependent". We understand from today's submissions that the local authority has in fact stepped in to fill the gap created by the departure of the appellant into custody.

Mention has been made of the threat to the family's accommodation, and the pre-sentence report noted rent arrears of £1,000 that had already accumulated at that time. But we have no information which suggests that the family is about to be ejected from the family home.

In all these circumstances, immediate imprisonment was not only merited but it was in our judgment necessary and proportionate. It was the only appropriate course to adopt. As for the duration of the sentence, there is no challenge to this, and rightly so. The custodial period for the index offence was cut as short as it could possibly be. There was no injustice in activating the suspended sentence to the limited extent that this was done. The result of the considerable shortening by the judge of what would otherwise be the appropriate sentence is that this appellant will be discharged from custody after serving eight weeks, which will be less than three weeks from today.

Accordingly, although we granted leave to appeal against sentence, we dismiss the appeal which means that the application for bail does not arise.