Chantel Newsome [2019] EWCA Crim 921
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R v Chantel Newsome [2019] EWCA Crim 921 concerned an appeal by a woman sentenced to three years’ imprisonment for fraud, who was suffering from terminal bowel cancer. The Court of Appeal (Lord Justice Davis, Mr Justice Jeremy Baker and Her Honour Judge Rees) allowed the appeal and reduced the sentence to eighteen months’ imprisonment.
Ms Newsome had pleaded guilty before the magistrates to an offence of fraud contrary to section 1 of the Fraud Act 2006 and was committed for sentence. On 10th January 2019 the Crown Court at Bristol sentenced her to three years’ imprisonment. She applied for leave to appeal against sentence, which was referred to the full court by the Registrar and granted.
Between 2012 and 2018 Ms Newsome abused her position as accounts and office clerk for a family-owned business, ABD Limited, by raising false invoices and dishonestly transferring company funds totalling £565,709.82 into two bank accounts in her own name. Her role had developed over the preceding year so that she had full financial responsibility for the company’s accounts due to family ill-health within the business. The fraud was discovered in April 2018 and she was dismissed. When arrested and interviewed she made full admissions, though she did not fully explain where the stolen funds had gone. The loss caused significant financial difficulties to the company and led to redundancies among key staff.
Ms Newsome was 47 years old, of previous good character, married with two children aged 10 and 12. In January 2018 she was diagnosed with stage 4 bowel cancer. She underwent surgery and was fitted with a stoma. At the date of sentence she was receiving palliative chemotherapy every two weeks. A report from her consultant medical oncologist, Dr Gangadhara, dated 9th January 2019 stated that there were no curative options, that treatment was aimed at disease control with improving quality of life and survival, that without treatment her prognosis was measurable in months, and that with treatment the median survival was around eighteen to twenty-four months.
The sentencing judge determined that the offence fell within category 1A of the relevant sentencing guidelines: high culpability A was demonstrated by the abuse of her position of trust and responsibility, and the amount of loss placed the harm in category 1, giving a starting point of seven years’ custody with a range of five to eight years. The judge reduced the notional term to five years to take into account her good character, and after discount for the early guilty plea arrived at three years and four months. The judge referred to R v Bernard [1997] 1 Cr App R(S) 135 and stated that normally the fact that a person is suffering from a terminal illness will not have a dramatic effect upon sentence, as it is a matter the Secretary of State can take into account in deciding to permit early release. However, as an act of mercy, the judge reduced the term to three years.
After sentence, further reports from Dr Gangadhara dated 16th January, 13th March and 10th April 2019 clarified that the median survival figure of eighteen to twenty-four months was from the date of diagnosis in January 2018, such that by March 2019 the median survival was twelve to fifteen months. He stated that the chemotherapy suppressed her immune system, placing her at increased risk of life-threatening infections including sepsis, increased risk of blood clots, and that she would be disadvantaged in prison if she felt unwell during chemotherapy as she might not get appropriate medical help from her immediate team, putting her at risk of death from severe complications. She had to manage her stoma daily with bag changes. She was experiencing treatment-related side-effects including fatigue, sore mouth, loss of appetite, loose stools and weight loss requiring regular input from oncologists, specialist nurses and a multidisciplinary team. Statements from her husband and letters from her children showed the family was suffering great distress. Her husband saw her every weekend and accompanied her to fortnightly chemotherapy sessions. The children saw her every other week. Letters from the prison and healthcare providers confirmed that to limit infection risk she was being cared for in a single room with lavatory facilities on a unit for those with personality disorders as it had the fewest residents. Her chemotherapy sessions and other hospital visits were managed through release on temporary licence. She had been provided with additional compassionate visits.
Those representing Ms Newsome made a written application under section 23 of the Criminal Appeal Act 1968 to admit the fresh material. The court treated it as updating and clarifying material rather than evidence significantly affecting the evidential basis for the original sentencing exercise, as explained in R v Rogers [2016] EWCA Crim 801, and took it into account in addition to what was before the sentencing judge.
Miss Mawer, representing Ms Newsome, submitted that the sentence of three years’ imprisonment was manifestly excessive due to the court having failed sufficiently to take into account the available mitigation, including her good character and remorse, the effect of the sentence upon her children, and the nature and extent of her terminal illness. It was submitted that the period should either be substantially reduced or suspended to permit her immediate release.
The Court of Appeal held that this was a serious case of fraud, rightly determined to be category 1A within the guidelines, and that the starting point of seven years’ custody was appropriate. The court noted that although the loss of approximately £500,000 was significantly less than the £1 million figure upon which the starting point was based, there was evidence of high impact due to the serious detrimental effect the fraud caused to the business, which would have entitled the judge to elevate the offence within the category range. The court considered whether the judge had failed to make any or sufficient reduction to take into account her good character, remorse and the effect upon her children. Although the judge made express reference to her good character, he did not expressly refer to her remorse, which the pre-sentence report author considered genuine, nor to the effect upon her children. However, the court had no doubt that he had both matters well in mind, having been addressed about them and having alluded to the tragic nature of the case. The reduction of the term prior to guilty plea discount to five years sufficiently recognised those mitigating factors.
The real issue was the judge’s approach to Ms Newsome’s terminal illness and whether it was sufficiently recognised by reducing what would otherwise have been the correct sentence by four months to three years. The court reviewed the principles set out by Rose LJ in Bernard, which established that a medical condition affecting future life expectancy or the prison authority’s ability to treat a prisoner may call into operation the Home Secretary’s powers of release but is not a reason for the Court of Appeal to interfere with an otherwise appropriate sentence; that being HIV positive or having reduced life expectancy is not generally a reason which should affect sentence; that a serious medical condition, even when difficult to treat in prison, will not automatically entitle an offender to a lesser sentence; and that an offender’s serious medical condition may enable a court, as an act of mercy in exceptional circumstances of a particular case, to impose a lesser sentence than would otherwise be appropriate.
The court bore in mind what Lord Thomas CJ said in R v Qazi [2010] EWCA Crim 2579 concerning the potential relevance of Article 3 of the European Convention on Human Rights to sentencing those affected by serious medical conditions, and noted that it was not submitted that the mere fact of imprisonment would inevitably expose Ms Newsome to inhuman or degrading treatment contrary to Article 3. The court cited Hughes LJ in R v Hall [2013] EWCA Crim 82, who said that the sentencing court is fully entitled to take account of a medical condition by way of mitigation as a reason for reducing the length of sentence, either on the ground of the greater impact imprisonment will have or as a matter of generally expressed mercy, though it will not necessarily do so if, for example, powers of release under the Prerogative will provide sufficient response or if the prisoner represents a danger to the public. The court also reminded itself of Hallett LJ’s observation in R v Clarke [2017] EWCA Crim 393 that whilst an offender’s diminished life expectancy, age, health and prospect of dying in prison are factors legitimately to be taken into account, they must be balanced against the gravity of the offending, including harm to victims, and the public interest in setting appropriate punishment for serious crimes.
The court accepted that Ms Newsome’s health was in a parlous state, as it had been at the date of sentence. Although there had been some clarification of her life expectancy and further details concerning her palliative care regime, there was little before the court that was not known to and taken into account by the lower court. The judge had made specific reference in his sentencing remarks to Bernard and his approach properly reflected its principles. There could be no principled criticism of the approach taken by the sentencing judge in this very difficult case, and the only question was whether the limited reduction of four months was sufficient properly to reflect the effect of her state of health.
Having given anxious scrutiny to Ms Newsome’s circumstances, including the terminal nature of her illness, the severity of the curtailment of her life expectancy and the impact upon her two young children, the court was just persuaded that as an act of mercy the period of imprisonment, whilst remaining of immediate effect to reflect the serious nature of her offending, should be reduced to eighteen months. The court quashed the sentence of three years’ imprisonment and substituted eighteen months’ imprisonment. In short, the Court of Appeal allowed the appeal as an act of mercy, reducing the immediate custodial term from three years to eighteen months in recognition of the appellant’s terminal illness and its impact on her young children.