England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		26 February 2009

1. Mr Justice Jack: On 18 December 2008 the applicant, Stephen Cahill, pleaded guilty before magistrates and was committed to the Crown Court for sentence. On 22 January 2009 at the Crown Court at Blackfriars he was sentenced to concurrent sentences of nine months for possession of a class C drug, ketamine, with intent to supply and possession of a class B drug, amphetamine, with intent to supply.
2. His application for leave to appeal has been referred to the court by the registrar.
3. His appearance in court resulted from the execution of a warrant at his home when 15.5 grammes of ketamine with a street value of £566 and 46.9 grammes of amphetamine with a street value of £467 were found. A book with names and sums of money due was also seized. In interview he made full admissions. He said he had been supplying drugs to a number of individuals, which he put at 80-100, at his home.
4. The applicant is 54. He had one previous conviction in 1989 for stealing from old people in the home where he worked. He received a community sentence.
5. He said when interviewed by the police that he had dealt in drugs to raise money to pay part of his debts. Those arose, he said, from a spending spree which he had indulged in following his diagnosis in 1986 as HIV positive. He was found to have AIDS in 1996.
6. His present situation is described in a letter from his consultant physician at Chelsea and Westminster Hospital, dated 15 January 2009, as follows:

"We consider Mr Cahill to have advanced HIV infection. He has multiple drug resistance and is currently maintained on a salvage antiretroviral regime. His Kaposi's sarcoma is still active. and he is under the care of the oncologists for this. He has numerous ongoing symptoms related to his HIV. These include a recurrent nausea, vomiting and diarrhoea. He continues to get night sweats. He is underweight.

...

However his health remains very vulnerable. Control of his HIV has only been possible with the arrival of two newly licensed drugs. He is resistant to most of the other drugs that he has previously been treated with. It is critically important to the success of his treatment that continuity of his drug supply is maintained, and that his adherence is full. He requires regular monitoring visits to the hospital, both to see the HIV team and also to see the oncologists. When the Kaposi's sarcoma was last assessed it was considered that he had active disease. This remains under follow-up."

7. Prior to his imprisonment the applicant was living with his partner of 21 years who suffers from angina and had prior to the applicant's sentence suffered a heart attack and needed the applicant's care.
8. There was a pre-sentence report which recommended a suspended sentence.
9. In passing sentence the Recorder referred to the nature of the applicant's dealing and the period of it. She said that she was taking account of his ill health, his co-operation with the police and plea, as indeed the low sentence which she passed shows. She did not, however, refer to the possibility of a suspended sentence.
10. The Recorder had before her a persistent dealer in class B and class C drugs. His mitigation was his frankness with the police and early plea, his good character, save for offending in 1989, and the state of his health.
11. In Bernard [1997] 1 Cr App R(S) at 138, BAILII: [1996] EWCA Crim 519, Rose LJ set out four general principles relating to imprisonment and health. We need only refer to two of them:

"(ii) the fact that an offender is HIV positive, or has a reduced life expectancy, is not generally a reason which should affect sentence.

(iii) a serious medical condition, even when it is difficult to treat in prison, will not automatically entitle an offender to a lesser sentence than would otherwise be appropriate."

12. The applicant here is not simply HIV positive as referred to in that judgment. He has AIDS itself and he has had it for 12 years. A prison medical report was ordered for the purposes of this hearing, but it was also directed that its provision should not hold up the hearing of the application. It has not arrived. We have already quoted from the consultant's letter of 15 January which shows the very serious current condition of the applicant and the need for supervision by that hospital.
13. We consider that in the exceptional circumstances of this case the sentence should have been suspended. The sentences of nine months will stand, but will be suspended for two years. The supervision period in accordance with section 189(1)(a) of the Criminal Justice Act 2003 and the operational period in accordance with section 189(1)(b)(ii) will be two years. There will be a requirement of residence pursuant to sections 190(1)(g) and 206 that he reside at his current address.