Tobias Collins discusses pleading pregnancy as an exceptional circumstance to avoid minimum sentence terms.
Introduction
This was an appeal against the imposition of the mandatory 5-year minimum sentence after the appellant pleaded guilty to possession of a prohibited firearm. Per s311 and sch20 of the sentencing code, the mandatory minimum may only be avoided if exceptional circumstances related to the appellant, or her offence justify not imposing one. The Court of Appeal found that whilst pregnancy alone is insufficient, exceptional circumstances can be found when coupled with other (seemingly much less exceptional) factors.
Facts
The offence occurred in February 2022, where a few days after her 22nd birthday, the appellant was found in possession of a converted 9.17 self-loading 9mm pistol. It was loaded with three bullets. This was a semi-automatic handgun, designed or adapted to be capable of killing two or more people at the same time or in rapid succession (per the Sentencing Guideline). She made full and frank admissions in interview and was co-operative. She admitted the offence on the basis that she was holding it for her boyfriend and at first did not know what was in the package he had given her, intending to return it to him as soon as she discovered what it was.
At the time of being sentenced, no one knew the appellant was pregnant. It was only discovered at a routine check as she entered HMP Bronzefield. Being a fact that existed at the time of sentencing, the Court of Appeal duly took it into consideration. As the Court sets out at [5]:
5. In the event, with that benefit, upon a careful review of all the circumstances of the appellant and the offence she committed, it was our opinion that this quite singular case did present exceptional circumstances that:
i) justified not imposing the statutory minimum sentence;
ii) meant that a custodial term commensurate with the seriousness of the appellant’s offence could be set at 3 years after consideration of the personal mitigation, reduced to 2 years after making the appropriate reduction for the appellant’s guilty plea.; and
iii) enabled us to take the very exceptional course, for this type of offence, of suspending that custodial term.
The Court then substituted the five-year sentence with a two-year suspended sentence, to be suspended for two years.
Exceptional circumstances generally
From the outset, the Court referred to “exceptional circumstances”, those being required to avoid the mandatory minimum term. Importantly, the Court endorsed the Guideline as the authority on what constitutes exceptional circumstances and was dismissive of pre-guidelines caselaw stating at [12] “reference to caselaw pre-dating the Guideline to identify those principles (for example, R v Nancarrow [2019] EWCA Crim 470, [2019] 2 Cr App R (S) 4) is therefore misplaced. We discourage it” (emphasis added).
The Court then went on at [13] to set out the relevant steps of the guideline which assist in determining whether exceptional circumstances are made out:
“6. In considering whether there are exceptional circumstances that would justify not imposing the statutory minimum sentence, the court must have regard to:
- the particular circumstances of the offence and
- the particular circumstances of the offender
either of which may give rise to exceptional circumstances
...
9. Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence.
10. The circumstances must truly be exceptional. It is important that courts do not undermine the intention of Parliament and the deterrent purpose of the minimum term provisions by too readily accepting exceptional circumstances.
11. The court should look at all of the circumstances of the case taken together. A single striking factor may amount to exceptional circumstances, or it may be the collective impact of all of the relevant circumstances.
12. The mere presence of one or more of the following should not in itself be regarded as exceptional:
- One or more lower culpability factors
- The type of weapon or ammunition falling under type 2 or 3
- One or more mitigating factors
- A plea of guilty”
Additionally, the Court went on at [14] to accept Miss Woodrow’s submissions that the following principles were of assistance, as well as stating at [15] that medical issues pertaining to fitness to serve a custodial sentence are also of relevant:
i) all the circumstances of the individual offence and offender must be considered together (paragraphs 6 and 11);
ii) the court must ask whether the circumstances are truly exceptional to ensure that the deterrent purpose of minimum sentences is not too readily undermined (paragraph 10);
iii) the existence, or a totting up, of multiple mitigating factors is not enough (paragraph 12); and
iv) there is a single ultimate test, as stated in paragraph 9, viz. whether the imposition of the statutory minimum sentence would, in all the circumstances of the individual case, result in an arbitrary and disproportionate sentence.
Pregnancy specifically
Turning to the question of pregnancy as an exceptional circumstance, the Court first noted at paragraph 22 that there was a possibility of the Child being 22 ½ months old by the time the appellant is liable to be released on license. Despite the possibility of extension on the mother and baby unit and accepting that only a short extension would be required, the Court found that the this would cause uncertainty and could exacerbate anxiety for the appellant in the early months of their child’s life. They also accepted that enforced separation of a baby from their primary carer is significant. “However, we did not consider that this factor in itself justified the claim of exceptional circumstances.”
The Court then looked at medical evidence regarding stillborn children in prisons as well as the appellant’s statistical risk given her ethnicity. Still, the Court reiterated “that is all relevant context, but it is indeed context only” [28].
The Court then reviewed and adopted the language of R v Charlton [2021] EWCA Crim 2006, R v Petherick [2012] EWCA Crim 2214, and R v Cheeseman [2020] EWCA Crim 794, to find that pregnancy is an exceptional circumstance only when coupled with other personal mitigation. Once pregnancy and personal mitigation are found, the Court can go below the mandatory minimum sentence.
In this instance, further mitigation was found and analysed at [34] – [40]. These included facts such as her previous good character, her early guilty plea and co-operation and the fact she was assessed as a low risk of reoffending with a strong prospect of rehabilitation.
The question of suspension
Although pregnancy coupled with other factors appears sufficient to find exceptional circumstance and avoid the minimum term, avoiding the minimum term does not necessarily lead to the imposition of a suspended sentence. Paragraph 32 and its corresponding quote from Cheeseman suggests that practitioners must then go on to address the Guideline on Imposition of Community and Custodial Sentences:
“Pregnancy will not only provide strong personal mitigation but might also tend to improve the prospect of rehabilitation. Further, immediate imprisonment may often result in a significant harmful impact on the unborn child. Pregnant offenders cannot, however, automatically expect to avoid imprisonment. In particular, some pregnant offenders will present a risk or danger to the public and others will have committed offences so serious that there is no alternative to immediate custody. Such offenders aside, in our judgment proper application of the imposition guideline will often justify the suspension of a short sentence in the case of a pregnant offender.”
Overall comments
As such, this Judgment has made the following clear for practitioners:
I. There is a single test to find exceptional circumstances. It is found in paragraph 9 of the Guideline, and it states that 9. Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence;
II. Some factors in of themselves, will be insufficient to meet the standard of exceptional without more. This is to be viewed by way of overall impact, rather than a mere totting of factors relevant to mitigation;
III. It is the Guideline that is to be followed. Practitioners should avoid reference to pre-guideline caselaw. It is specifically discouraged;
IV. Pregnancy is not always an exceptional circumstance. Whilst pregnancy can be a heavily persuasive factor in avoiding custody, practitioners must take care to couple it with other mitigation/exceptional circumstances relevant to the offender in order to reduce the sentence. It is however, of note that the factors referenced to between paragraphs 34-40 are not uncommon amongst offenders, and practitioners may be able to readily couple pregnancy with several factors pertinent to mitigation; and
V. Even if an exceptional circumstance is found, practitioners should take care to make submissions as to why the sentence should be suspended. In cases of pregnancy, this in of itself readily applies to those guidelines, as seen in the language of Cheeseman. “Pregnancy will not only provide strong personal mitigation, but might also tend to improve the prospect of rehabilitation. Further, immediate may often result in significant harmful impact on unborn children.”
Tobias Collins
9 St John Street Chambers