[2002] EWCA Crim 2686Case No No: 2002/5894/W4Venue Royal Courts of Justice, Strand, London, WC2
Between
REGINASIAN DAVIES
Before
Mr Justice HenriquesHis Honour Judge Findlay BakerMR R HOLLOWAY appeared on behalf of the APPELLANTDate 7 November 2002
[1]MR JUSTICE HENRIQUES: This appellant, aged 25, appeals with leave of the single judge. She appeared before the Warwick Crown Court on 13th September 2002 and was sentenced to 12 months' imprisonment for possessing an offensive weapon, namely a butterfly knife. Whilst there was some background to this allegation, involving an allegation of possessing a firearm of which the appellant was found not guilty, the relevant facts can be stated in short compass.[2]The appellant is a working prostitute and she was asked at about 11.35 pm by a Woman Police Constable if she had anything on her which she should not have. She replied "I've got this knife but I never use it". She then unzipped her left boot, a long black leather boot, and produced a butterfly knife and having been cautioned she said "I wouldn't use it" and later in interview she said "I am a working girl, it's purely for a scare factor, you know, I've never had to pull it out and, touch wood, I hope I never have to do anything like that, you know it was just there for a scare factor" and she indicated that if a customer were to become difficult and heavy and offer her violence it was there for her protection.[3]The appellant has a very modest record. In May of 1998 she was convicted of shoplifting, handling stolen goods and using threatening words or behaviour contrary to section 4 of the Public Order Act 1986. A probation order of 18 months duration was made. She has received two minor cautions.[4]In passing sentence Mr Recorder Aucott stated, quite correctly:
"The offence of possessing this sort of weapon is so serious that a custodial sentence is justified but it does not have to be a long one."
He passed a sentence of 12 months' imprisonment, acknowledging that there was credit for a plea of guilty. Mr Holloway on behalf of the appellant now questions whether the sentence ought not to have been shorter.[5]We have read the case of R v Poulton and R v Celaire [2002] EWCA Crim 2487 in which judgment was given by this court on 24th October 2002 in which the Vice President, Lord Justice Rose, gave a guideline judgment. Courts are invited to consider both the potential mitigation and aggravation in every case. The nature of this particular weapon, a butterfly knife, was an aggravating feature, as was the fact that it was carried habitually by this appellant. On the other hand the purpose of carrying the weapon was to avoid violence rather than to create it, she had cooperated fully with the police and she had entered a timely guilty plea.[6]We are quite satisfied that the custody threshold was passed, indeed Mr Holloway does not submit to the contrary. Any prostitute who carries a weapon which is offensive per se as she goes about her daily business must expect to lose her liberty. The custody threshold will, in our judgment, be passed by reason of the nature of the weapon and the circumstances in which it was carried -- that is habitually. However, where there is mitigation, as in the present case, and no previous conviction for violence or similar offences, we are quite satisfied that the sentence could have been substantially shorter than 12 months' imprisonment. Indeed, as Mr Holloway pointed out in argument, had it not been for the more serious offence of which she was acquitted, this matter would doubtless have been dealt with before the Justices as in our experience so many offences of this type are dealt with. Had the matter come before the Justices by reason of the plea of guilty the sentence must have been at the most four months' imprisonment. There is, however, mitigation over and above that which in our judgment makes the appropriate sentence on these facts one of three months' imprisonment and accordingly to that extent this appeal is allowed, by way of substituting three months' imprisonment for 12 months' imprisonment. We apprehend that will permit the immediate release of this appellant, subject to the appropriate formalities being completed.