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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Poulton & Anor, R. v [2002] EWCA Crim 2487 (24 October 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/2487.html
Cite as: [2002] EWCA Crim 2487
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CRIMINAL DIVISION
Strand London, WC2 |
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B e f o r e :
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE HUGHES
MR JUSTICE ROYCE
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| R E G I N A | ||
| -v- | ||
| SARAH JANE POULTON & MARIO ROLANDO CELAIRE |
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Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR J BARKER appeared on behalf of the APPLICANT CELAIRE
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- THE VICE PRESIDENT: Very few appeals against sentence in relation to the offence of carrying an offensive weapon reach this Court. The appeal of Poulton and the renewed application for leave to appeal by Celaire provide what, it has transpired, is a slightly tenuous opportunity for this Court to suggest guidelines for sentencing for this offence, in the light of the report of the Sentencing Advisory Panel made in May 2000. I say slightly tenuous because, as will emerge, both of these cases have somewhat unusual features.
- So far as the appellant, Poulton, is concerned, she on 19th October 2001, at Hove Crown Court, pleaded guilty to having an offensive weapon and, on 28th November, at the same court, was convicted of attempted robbery. She was sentenced by Mr Recorder Hall to 3 years for attempted robbery and 12 months concurrently for having an offensive weapon. She appeals against that sentence by leave of the Single Judge.
- The facts were that, shortly after midnight, on 26th July 2001, a woman called Miss Crocket and a friend were on their way home from a nightclub. They went towards a taxi rank in central Brighton and were approached by the appellant, who asked Miss Crocket whether she had any cigarettes. Miss Crocket said "no, sorry", and the appellant produced a penknife with a three or four inch blade from her pocket, showed it to Miss Crocket and demanded that she open her handbag. Miss Crocket complied and, when the appellant found that there were no cigarettes in the bag, she walked away. Miss Crocket followed and telephoned the police. When the officers arrived, the appellant was arrested. When she was interviewed she made no comment.
- In passing sentence, the learned Recorder, rightly, referred to the fact that two young women had been placed in fear and that this was, in effect, a street robbery using a knife.
- The appellant was born on 12th July 1966. She has a considerable number of convictions spanning a period of some 20 years. They include a conviction for assault occasioning actual bodily harm, one for threatening behaviour and one for assaulting a constable; and many convictions for dishonesty. She has been dealt with by way of fine, conditional discharge, probation orders and short periods of imprisonment, the longest being for a period of 3 months.
- There is a psychiatrist's report, dated 19th June 2002, which refers to the appellant's history of growing up in an unstable and insecure environment and of the physical difficulties which she has endured, including a leaking brain aneurism and the removal of a kidney. She has made several attempts on her life and has been admitted to a psychiatric hospital on more than one occasion. She is described as having a personality disorder and could be categorised as suffering from a psychopathic disorder but absent highly specialised services, no useful purpose would be served, in the psychiatrist's view, from making an order under the Mental Health Act.
- On the other hand, on-going and repeated custodial sentences are not likely to have an improving effect on her behaviour. The psychiatrist contemplated that, as and when the appellant was released from custody, any treatment which she then had should include within it a residential component. There are before the Court further reports, apart from that of the psychiatrist. In particular, there is one dated 18th October 2002, from Louise Chase, a counsellor at Downview Prison. She first saw the appellant at the beginning of August 2002, and the appellant has expressed a desire to change her way of life and to commit to her children. She has been working hard to come to terms with her position. She gives every indication of having gained more stability than was apparent at the time of the psychiatric report. She has caused no trouble, nor has she subjected herself to self harm while at Downview. She appears to be handling matters, which include having been bullied, well. She has been, it is said, enhancing her life skills and her understanding of herself and the view is expressed that she might have the chance of putting increasing self knowledge to use outside the prison. Furthermore, if she were to be released, a structured day care unit at the Oasis Project in Brighton (who have, as appears from a report from Peter Hale of CARAT within the prison service, agreed to her starting a programme on 25th October 2002) may be of benefit to her.
- The submission made on her behalf by Miss Rose was that, as she has now served the equivalent of a 22 month sentence, it would be appropriate to order her immediate release without more. This Court has invited the liaison probation officer to see the appellant during the currency of these proceedings and, in due course, we shall return to the outcome of matters so far as this appellant is concerned.
- The applicant, Celaire, to whom we give leave to appeal, pleaded guilty on 20th May 2002, at Camberwell Green Magistrates' Court, to possessing an offensive weapon and using a motor vehicle with no insurance. He was convicted of dangerous driving and committed to Inner London Crown Court for sentence. There, on 12th July 2002, by Mr Recorder Raggatt QC, he was sentenced to 12 months' imprisonment for possession of an offensive weapon. No separate penalty was imposed for using the vehicle with no insurance and he was sentenced to 6 months consecutively for dangerous driving, that is to say the total sentence was 18 months' imprisonment, and he was disqualified from driving for 3 years.
- The facts were these. On the evening of 8th December 2001 police officers in Brixton stopped the appellant, Celaire, who was riding a Yamaha motorcycle, because of the way in which he had overtaken some other vehicles. The officers parked their car in front of the appellant's motorcycle at an angle to prevent him getting away. But, after one of the officers had alighted from the police motorcar, the appellant revved up the engine and sped off through a gap. The officers set off in pursuit. The appellant drove at a speed of 50 miles per hour, in an area restricted to 30. He went through a red light and he passed between two pedestrians on a pelican crossing, causing them to jump out of the way. He drove into a busy road which was solid with traffic and came in contact with four vehicles before coming to a halt. He then began to run off but was detained by plain clothes police officers. He was asked if he had anything on him which he ought not to have. He then produced from his pocket a kitchen knife with a blade between 4 and 5 inches long.
- He was arrested. In interview, he said he carried the knife for his own protection and he admitted he had no insurance. He said he recalled almost colliding with the pedestrians but was not looking at the lights and could not remember going through them on red.
- The Recorder, in passing sentence, referred to the carrying of knives as being extremely dangerous because the production of a knife to threaten people, in circumstances of potential violence, has the capacity to cause the serious escalation of such violence. With that expression of view this Court agrees. He went on to pass the sentence to which earlier we referred.
- This appellant was born on 4th February 1978, so he is 24 years of age. He has a previous conviction for rape and indecent assault, in relation to which he was initially sentenced to 5 years, reduced by this Court on appeal to 4 years', detention in a young offender institution in 1995.
- There was a pre-sentence report before the learned Recorder, which referred to a high risk of the appellant re-offending, although he appeared to regret his actions. He has no history of mental illness.
- The present position, so far as the appellant is concerned, as Mr Barker on his behalf has told this Court, is that he is in custody awaiting trial, due to start next week, for murder. It is said, on his behalf, that he was carrying this knife in the circumstances which we have described because the family of the man whom he is alleged to have murdered, before police involvement implicating the appellant, had expressed views adverse to the appellant. Because he was fearful of what they might do, he was carrying a knife in the way which we have described.
- Mr Barker submits, by reference to a number of authorities, that the sentence passed in relation to the offensive weapons offence was approximately double what it ought properly to have been. So far as the sentence for dangerous driving is concerned, although initially he had been minded to contend that it was excessive, he accepted, in this Court, that that submission could not be advanced; but 6 months was, he submitted, towards the upper end of the appropriate bracket for this appellant in relation to that offence. Mr Barker, in relation to the offensive weapon offence, drew our attention to Shorter 10 Cr App R(S) 4, a decision of this Court prior to the increase by Parliament of the maximum penalty for the offence of carrying an offensive weapon from 2 years to 4 years, Buzzer [1996] 2 Cr App R(S) 271, where a sentence of 6 months was reduced to 3 months, following conviction for possession of a flick knife, Edwards 2002 EWCA Crim 1774 where a sentence of 12 months was reduced to 9 months and Norman 16 Cr App R(S), where an appeal against a sentence of 15 months for possession of a broken snooker cue and a nasal spray containing ammonia solution was dismissed, the appellant in that case having many previous convictions for possession of an offensive weapon and violence. Mr Barker also referred to Hopkins [1996] 1 Cr App R(S) 18, where a sentence of 6 months passed on a minicab driver, fearful for his own safety, was reduced to 3 months in relation to the possession by him of a lemon juice bottle containing hydrochloric acid.
- The task of issuing guidelines is not made easier by the fact that the maximum penalty for possession of an offensive weapon in a public place, contrary to section 1 of the Prevention of Crime Act 1953, which was 2 years until 1996 is now 4 years' imprisonment. But the maximum penalty for possessing an article with a blade or point in a public place, contrary to section 139 of the Criminal Justice Act 1988 is still only 2 years. It is not obvious to the Court why the maximum sentence should be different. It is to be noted that the case of Edwards, to which Mr Barker referred, involved possessing a bladed article.
- For the avoidance of doubt, this judgment relates to offences of possessing an offensive weapon with the 4 year maximum, which we shall refer to, in shorthand terms, as a weapons offence. We also emphasise, as with all guideline decisions of this Court, that this judgment affords guidance not a straightjacket to sentencers.
- As will become apparent we largely, although not entirely, adopt the proposals of the Sentencing Advisory Panel. Where the weapons offence was committed in conjunction with another offence, the usual considerations in relation to totality will apply. A concurrent sentence will usually be appropriate if the weapons offence is ancillary to another more serious offence, as it was in the case of the appellant, Poulton. Where the weapons offence is distinct and independent of another offence, a consecutive sentence will usually be called for, as in the case of the appellant, Celaire. In this respect, therefore, the approach of the sentencing judge in both these cases, the subject of appeal, was correct.
- There is, in determining the appropriate sentence for an offence of this kind, a balance to be struck between the fact that the offence does not in itself involve physical injury and the public's legitimate concern that a culture of carrying weapons encourages violence and may lead to more serious criminal behaviour.
- We agree with the Panel that, in assessing the seriousness of an offence, it is necessary to consider the offender's intention, the circumstances of the offence and the nature of the weapon involved. In this respect, we also agree that it may often be helpful for a sentencer to ask the sort of questions posed by this Court in relation to firearms in Avis [1998] 2 Cr App R(S) 178, BAILII: [1997] EWCA Crim 3355, that is to say, to consider the nature of the weapon involved, the use to which it may be put and the defendant's intention in carrying it and the defendant's previous record.
- As to intention there are, in our judgment, three specific factors which may aggravate the offence. First, there may be a specifically planned use of the weapon, to commit violence or threaten violence or intimidate others. Secondly, the offence may be motivated by hostility towards a minority individual or group, which may give rise to an aggravating feature, such as racial motivation within section 28 of the Crime and Disorder Act 1998. Thirdly, we would regard it as an aggravating aspect if the defendant was acting under the influence of alcohol or drugs while carrying such a weapon.
- As to the circumstances of the offence, these may be aggravated if its commission takes place at particularly vulnerable premises such as a school, (which may give rise to the possibility of a separate charge under section 139A of the Criminal Justice Act 1988), or a hospital or other place where vulnerable people may be present. Likewise, an offence may be aggravated if committed at a large public gathering, especially one where there may be a risk of disorder; or, if committed on public transport or on licensed premises or on premises where people are carrying out public services, such as in a doctor's surgery or at a social security office. Finally, in this regard, the offence will obviously be aggravated if it is committed while the defendant is on bail. That, of course, is a statutorily aggravating feature under section 29(2) of the Criminal Justice Act 1991.
- As to the nature of the weapon, some weapons are inherently more dangerous than others. But the nature of the weapon will not be the primary determinant as to the seriousness of the offence, because a relatively less dangerous weapon, such as a billiard cue, or a knuckle-duster, may be used to create fear and such an offence may be at least as serious as one in which a more obviously dangerous weapon, such as a knife, or an acid spray is being carried for self-defence or no actual attempt has been made by the offender to use it.
- On the other hand, light may be shed on an offender's intention, if he is carrying a weapon which is offensive per se, such as a flick knife or a butterfly knife, or a weapon designed or adapted to cause serious injury.
- Mitigation will be found if the weapon was being carried only on a temporary basis. As in most other cases, there will be mitigation arising from personal factors, co-operation with the police and a timely plea of guilty. A defendant, with previous convictions for violence or carrying weapons, who is convicted of carrying a particularly dangerous weapon, in circumstances aggravated by any of the factors which we have identified and doing so with the clear intention of causing injury or fear, can expect to receive a sentence at or near the statutory maximum.
- In relation to an adult offender of previous good character, the custody threshold will almost invariably be passed where there is a combination of dangerous circumstances and actual use of the weapon to threaten or cause fear. The nature of the weapon and other aggravating or mitigating factors will bear on the length of the custodial term.
- Custody may still be appropriate, depending on the circumstances, where no threatening use was made of the weapon. Alternatively, depending on the circumstances, there will be cases where, absent aggravating features of the kind which we have identified and where no threat has been made and where the weapon is not particularly dangerous, the custody threshold may not be passed and a community sentence towards the top end of the available range may be appropriate. Of course, if the defendant has previous convictions for violence or for other weapon offences, then the sentence imposed on him or her is likely to be longer.
- So far as young offenders are concerned, the courts will of course, in passing sentence, have regard to their statutory duty to prevent offending by children and young persons, under section 37 of the Crime and Disorder Act 1998 and the need to have regard to the welfare of the child by virtue of section 44 of the Children and Young Persons Act 1933. It will almost invariably be appropriate, in the case of young offenders, to obtain a pre-sentence report before proceeding to sentence. The sentencing court will also wish to bear in mind its powers to order forfeiture which will almost inevitably follow in relation to offences of this kind, and its powers to make a compensation order.
- In the light of those general considerations, we return to the cases of these appellants. So far as Celaire is concerned, as we have already indicated, consecutive sentences were entirely appropriate. There is nothing wrong with the sentence of 6 months passed in relation to the dangerous driving offence, save that the Recorder ought to have ordered and we order, in pursuance of our statutory obligation, that before driving again the appellant undergo a driving test.
- So far as the 12 month sentence for possessing an offensive weapon is concerned, we accede, in part, to the submission made by Mr Barker. We take the view that 12 months was somewhat longer than all the circumstances of this case merited. We bear in mind those circumstances, as we have identified them, not least the fact that this was a dangerous knife with a four or five inch blade. We are prepared to quash the sentence of 12 months' imprisonment. We substitute for it a sentence 9 months' imprisonment. The total sentence to be served therefore will be one of 15 months rather than 18 months' imprisonment. To that extent, Celaire's appeal is allowed and he may go down.
- With regard to the appellant, Poulton, we are indebted to the Court's liaison probation officer for making enquiries during the adjournment in relation to this appellant. The sentence of 3 years which the learned sentencing judge passed cannot, on its face, be regarded as manifestly excessive, in the light of all the material which was before him, when he passed the sentence. This, however, is one of those comparatively rare cases in which, having regard to the material which is before this Court bearing upon this appellant, it is possible to take a merciful view at this stage. In this regard we bear in mind that the appellant has already served the equivalent of a 22 month sentence. But we bear principally in mind the signs which are beginning to appear that this appellant is going to change her way of life. It is in the public interest, as well as her interest and the interests of her children, that she does change her way of life. If she does not do so, she will inevitably spend ever increasing periods in custody.
- The view which we take is that, at this stage, we can properly quash the two sentences of imprisonment which were passed upon her in the court below and substitute for them, in each case concurrently, a 12 month community rehabilitation order. We emphasise that this decision is no authority for what is generally the appropriate level of sentencing in relation either to attempted street robbery or for the carrying of an offensive weapon in a public place. We shall attach to that probation order a condition that she attend the Oasis Project in Brighton as identified in the reports before this Court to which earlier we referred, or other project as directed by the probation officer.
- THE VICE PRESIDENT: The order, as you have heard, is that you be subject to a community rehabilitation order for 12 months, with a condition that you go to the Oasis project or any other project which you are told to by the probation officer. Now, the fact that you are subject to this order means exactly what it says. You are not being let off. If you are foolish enough to commit some other offence you can be brought back to court and sentenced yet again for these offences, as well as any new offence you commit. Do you understand?
- THE APPELLANT: Yes sir.
- THE VICE PRESIDENT: What the order also means is that you must do as the probation officer tells you. You must keep him or her informed of where you are living. As I understand it you are going to go and live with your parents. I am not making that a condition of the probation order, but the condition that you do as the probation officer tells you, will cover that aspect. Do you follow?
- THE APPELLANT: Yes sir.
- THE VICE PRESIDENT: This gentleman will come and see you again and make arrangements for you to get preferably to Oasis by tomorrow. Thank you. I think you said you already had a representation order.