Daniel Patrick Roque Hall v The Queen
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes: |
| Judgment Date | 08 February 2013 |
| Neutral Citation | [2013] EWCA Crim 82 |
| Docket Number | Case No: 20130024A8 |
| Court | Court of Appeal (Criminal Division) |
| Date | 08 February 2013 |
[2013] EWCA Crim 82
Lord Justice Hughes
Mr Justice Wyn Williams
and
Mr Justice Hickinbottom
Case No: 20130024A8
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
HHJ DENNISS
S20120021
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms F Krause (instructed by Scott-Moncrieff & Associates LLP) for the Appellant
Mr J McGuinness QC (instructed by CPS) for the Respondent
Hearing dates: 5 February 2013
This is a very unusual case. The judge had to find the right sentence for a man who suffers from an extremely grave combination of rare long term medical conditions which interfere with virtually all his bodily functions and require 24 hour monitoring and a very high level of constant assistance in most of the ordinary incidents of life. But the man had committed a serious offence of importing a large quantity of cocaine into this country. In the ordinary way it undoubtedly merited a long sentence of imprisonment. The judge imposed, in the end, a significantly shortened period of three years. The applicant presents us with alternative arguments:
i) that any sentence of imprisonment was wrong in principle because it would inevitably involve subjecting him to inhuman and degrading punishment akin to torture and in breach of Article 3 of the ECHR, or even to an interference with his right to life (Article 2);
ii) alternatively that the sentence imposed is, because of his condition, manifestly excessive; the judge ought to have reduced it even further than he did.
The defendant is 30 years of age. Since he was a small child he has suffered from a rare condition known as Friedreich's ataxia. That is an hereditary condition in which there is progressive, irreversible and incurable degeneration of the spinocerebellar tract. It not only directly affects the nervous system but often results in multisystem disorders of the body. He has little control of his limbs and has little balance, so cannot walk. His muscles are wasting. His speech is much impaired. He cannot swallow properly. He has intermittent bladder spasticity and is thus incontinent and needs help with bowel movements and urination. A consequence of the condition, present in this defendant, is severe scoliosis, or curvature of the spine, which brings with it chronic severe back pain and also cardiomyopathy (a stiffening of the walls of the heart) and atrial fibrillation (heart rhythm disturbances) and consequent breathing difficulties. Another known consequence, which again has ensued in his case, is pancreatic disorder leading to diabetes. As the condition advances, these multiple conditions become yet worse. There is, further, a heavy loss of life expectancy, which is usually restricted to about 40 years from the onset of the disease. The onset in this man's case is put at the age of approximately three.
By 1997, now fifteen years ago, he was confined to a wheelchair. He managed his difficulties with no little resilience. He carried on his schooling, with some interruptions, got into university and undertook a course in Spanish and economics which included a year abroad. Until 2000, when he left for university, his mother Anne provided all his care. But during his time at university his condition deteriorated. He was reluctant to admit it, apparently out of understandable pride, stopped going to lectures, and hid many of his difficulties from his mother. By the third year of university, he required formal care, day and night, which was funded by his local authority. In his fourth and final year at college, he was diagnosed with diabetes, and became very ill. He returned to live with his mother.
In 2007, he began to have cardiac symptoms: he had intermittent atrial fibrillation, and was found to have both stage 1 heart failure due to cardiomyopathy and mild left ventricle systolic dysfunction. In 2008, he moved into a fully wheelchair-adapted flat with accommodation for 24-hour care, close to his mother's home, and funded by his local authority as part of a detailed care plan. That plan included an extensive programme of therapeutic exercise activity, all of which required assistance, including passive stretching, gym and swimming pool exercise, standing practice using a standing wheelchair, and mechanical upper and lower limb exercise.
Since this time he has required very considerable assistance with every aspect of his life. He cannot feed himself without help. Without assistance, he is unable to do everyday tasks such as making a telephone call, opening a window, and even using a computer or a television remote control, nor can he perform any aspect of his personal care. He requires a hoist to move him, for example, from bed to wheelchair, from wheelchair to shower chair, or from chair to toilet. Frequent re-positioning and/or massage or stretching of the muscles is necessary as he sits, lies or uses a standing wheelchair if he is to avoid muscle spasm, seizing up of the joints and serious sores, and this needs one or often two carers each time. Because of his diabetes, he requires both regular injections of insulin, and also blood glucose testing at least four times per day. His other medication includes the anti-blood clotting agent Warfarin, and drugs to ensure that his heart maintains its rhythm. He also had significant non-pharmacological treatment: acupuncture, massage and water based exercises, which assisted particularly with muscle spasms and his generally poor sleep.
He has had intensive medical input, and regular appointments with neurologists, cardiologists, endocrinologists, occupational therapists, physiotherapists and speech therapists. Nevertheless, he has been regularly admitted to hospital units on a more or less emergency basis, on several occasions with symptoms of atrial fibrillation which proved to be an intermittent problem of sufficient concern to require medical review.
In the past, his psychological state has been of concern. Although he has generally borne his condition with some stoicism, he twice made serious attempts at suicide at the ages of 15 and 20. Comparatively recent conversion to Islam has, it seems, provided him with a spiritual support in facing his problems. Recently, however, he became very much committed to the hope of marriage to a lady from Morocco, but the hope was dashed by her family's objections to his disability, made at the last minute as he travelled to her home for the ceremony. After that, he entertained the hope of marrying another lady; that was perhaps a desperate reaction but it transpired that she was not genuine in her professed affections and a fresh blow was inflicted upon him. These very severe disappointments were undoubtedly dreadful reversals for him. At about the same time, a half sister developed cancer.
His family has connections in South America. His father is Nicaraguan. Although father has rejected the defendant, there is a sister in law also in that country. The defendant has managed to arrange travel from time to time, with a constant carer, to South America, to North Africa, to the United States, and to various other countries. It was one of these trips which he exploited to commit the criminal offence which brought him for the first and only time before the criminal courts.
In November 2011 he travelled to Peru with his carer for a holiday. On his return, a test at Heathrow disclosed the presence of cocaine hidden in the cushion of his wheelchair. Concealed in it was 2.8 kilograms of cocaine at the very high purity level of 83%. It was worth about £370,000. When first asked if they were carrying anything not permitted, both defendant and carer said that they were not. When the drugs were found, the defendant took the blame, saying that his carer knew nothing about it. As he later admitted, this importation had been planned in advance of his leaving this country and the hope had been that because he was in a wheelchair he would pass without question. The account he later gave was that an acquaintance of his had asked him previously to bring drugs back from South America. He had previously refused but this time had agreed, before going, to do so. He would not himself have been able physically to hide the drugs in the cushion, or indeed to substitute a different cushion if that was what was done. He volunteered that he had been promised £7000 for what he did. He said that the money was not his prime motive, and seems to have meant that he wanted to demonstrate an independence which is conspicuously lacking in his life.
This was a serious example of the offence. The importation was planned. The defendant was not exploited by someone else, nor does he suggest that he was blackmailed or put under severe pressure. Severely disabled as he himself is, the quantity of the drug imported was capable of ruining the lives of many other people, either directly from taking it, or via the harm that those who took it might do to others. The offence also risked involving the carer in serious crime. We should advert to an unexplained piece of evidence that a dismantled suitcase was found when, after his arrest, police officers went to his home; as to that, we think it best not to speculate about what that meant and the judge rightly avoided drawing from it any conclusions adverse to the defendant.
To set against those serious features of the offence there was...
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