Povey & Ors, R. v [2008] EWCA Crim 1261

No: 200802369,A5, 200802487/A7, 200800794/A9, 200800926/A5[2008] EWCA Crim 1261
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 21st May 2008
Strand
London, WC2A 2LL
B e f o r e:
SIR IGOR JUDGE
(President of the Queen's Bench Division)
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE SAUNDERS
R E G I N A
v
CLIVE RICHARD POVEY
JOHN MCGEARY
CLIFTON CHRISTOPHER POWNALL
DANIEL BLEAZARD
Computer Aided Transcript of the Stenograph Notes of
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Miss J Whitby appeared on behalf of Povey
Mr I D Graham appeared on behalf of McGeary
Mr G W Cook appeared on behalf of Pownall
Mr D A McGonigal appeared on behalf of Bleazard
Mr S Wood appeared on behalf of the Crown in the case of Bleazard
J U D G M E N T
Between
Povey & OrsDefendantRCrown
[1]Sir Igor Judge: In these otherwise unconnected appeals against sentence, or applications for leave to appeal against sentence, the single common thread is that the defendant in the Crown Court was convicted of being in possession of a knife or an offensive weapon without reasonable excuse.[2]Before we address each case individually we have some observations of a general nature which apply to all four of these cases and, unfortunately, to very many other cases as well.[3]Carrying a knife or an offensive weapon without reasonable excuse is a crime which is being committed far too often by far too many people. Every weapon carried about the streets, even if concealed from sight, even if not likely to be or intended to be used, and even if not used represents a threat to public safety and public order. That is because even if concealed, even if carried only for bravado, or from some misguided sense that its use in possible self-defence might arise, it takes but a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial, like a look, for the weapon to be produced. Then we have mayhem and offences of the greatest possible seriousness follow, including murder, manslaughter, grievous bodily harm, wounding and assault. All those offences have victims.[4]Offences of this kind, carrying an offensive weapon or knife, have recently escalated. They are reaching epidemic proportions. Every knife or weapon carried in the street represents a public danger and therefore in the public interest this crime must be confronted and stopped. The courts will do what they can to help reduce, and, so far as practicable, eradicate it. In our view, it is important for public confidence in the criminal justice system that the man or woman caught in possession of a knife or offensive weapon without reasonable excuse should normally be brought before the courts and prosecuted. Any conviction should be recorded and then the offender sentenced. For the time being, whatever other considerations may arise in the individual case, sentencing courts must have in the forefront of their thinking that the sentences for this type of offence should focus on the reduction of crime, including its reduction by deterrence, and the protection of the public. Even if the offender does no more than carry the weapon, even when the weapon is not used to threaten or cause fear, when considering the seriousness of the offence courts should bear in mind the harm which the weapon might foreseeably have caused. So the message is stark. This is a serious offence and it should be treated with the seriousness it deserves.[5]In considering these cases we have had in mind a number of decisions of this court. The first and most obvious is Poulton and Celaire [2003] 1 Cr App R(S), Brookes 2004, Williams 2006, Price 2006, and Jeggo 2007, as well as the current proposed guidelines to magistrates' courts. That leads to two further observations. First, the guideline decision of this court in Poulton and Celaire was decided in October 2002, following advice from the Sentencing Advisory Panel given in 2000. All the subsequent decisions have followed that guidance. Conditions now are much more grave than they were five and a half years ago and the guidance given in Poulton and Celaire should be applied with the current grave situation as we have endeavoured to explain it, and the sentencing considerations we have just identified clearly in mind. That is what we have done in these cases. Second, we recommend that any relevant guidance from the Sentencing Guidelines Council to magistrates should normally be applied at the most severe end of the appropriate range of sentences.[6]With those general observations we shall turn to the individual cases. We shall deal with them in the order in which they were argued before us.[7]Clive Povey is 50 years old. He has 29 previous appearances and has been convicted of 97 offences. The offences include an old offence of manslaughter in which the appellant inflicted stab wounds on his victim. There are other offences of violence. On 7th March 2008, in the Crown Court at Winchester, he pleaded guilty to three counts: count 1, having an article with a blade or point; count 2, having an offensive weapon; and count 3, possession of a class C drug, cannabis. On 4th April 2008 he was sentenced by His Honour Judge Griffiths to 16 months' imprisonment on counts 1 and 2 to run concurrently. No separate penalty was imposed in relation to count 3. An appropriate direction was given that 141 days spent on remand should count towards the sentence. The appropriate orders of forfeiture, and, indeed, for destruction of the cannabis were made.[8]The facts of the case can be taken very simply. It was quarter to 1 in the morning, on 13th November 2007, when the applicant was seen by police officers in a street in Basingstoke. He was wearing an army camouflage jacket, combat trousers and black army style boots. There was an outstanding warrant for his arrest so the officers approached and spoke to him. The applicant appeared to be extremely nervous as he replied to the questions and the officers noticed that he kept putting his hands into his jacket pockets. One of the officers noticed a cylindrical shaped item in the right hand front jacket pocket. When that was produced, it was flick knife. Close to that knife, in the same pocket, another knife was found. This was a wooden handled kitchen knife with a blade approximately 6 inches in length. A small amount of cannabis was also found.[9]The applicant was arrested. When interviewed, he said that the cannabis was for his personal use, but he had no comment to make when he was asked to explain his possession of the knives.[10]As we have indicated, the applicant has a very large number of previous convictions. We need not go through the details of them again. Sufficient indication has been given of something, at any rate, of their nature.[11]A pre-sentence report indicated that the applicant tended to minimise his behaviour and did not take full responsibility for his actions. He was described as having limited awareness of the potential impact of his behaviour, which was attributed to a lack of consequential thinking, chaotic lifestyle, homelessness and relationship difficulties. According to this report the applicant accepted that he was "an angry person", that he had used verbal aggression to intimidate and that he had also physically assaulted. His awareness of the consequences of carrying knives was said to be limited, although he indicated that he would use a weapon if he felt the need to protect himself. It was said that the applicant represented a high risk of re-offending with a medium risk of harm to the public, and any particular identified adult or staff. He was not motivated to comply with the probation service and made it clear that if a community order were in contemplation he would not comply with it.[12]In his sentencing remarks

the judge said:

"... there is a wholly legitimate public concern about people who carry knives; you know that, I know that, everyone knows that. People who carry knives are going to be cracked down on ..."
[13]The judge had in mind that on this occasion the applicant was carrying two knives, one of which was a flick knife, and that there was absolutely no justification for the applicant being armed with knives in the early hours of the morning. The judge recognised that the previous relevant convictions were a long time ago, but he was also concerned that a man of the applicant's character and temperament, in particular prone to aggression and violence and drinking too much and taking drugs, should be out and about in the streets with two knives in his pockets.[14]He also addressed the public risk and concluded:
"You and others who are minded to carry knives in public have just got to realise that sentences are going to be imposed in order to deter people from carrying knives."
[15]It is suggested in a careful argument on behalf of the applicant that the approach taken by the judge was wrong in principle. He had focused more on the applicant's previous convictions rather than the specific offences. He had failed to take account of the absence of some of the aggravating features identified in Poulton and Celaire and he had not taken into account the range of sentences where there was, in the result, no actual violence or specific aggravating features. Sufficient credit had not been given to the applicant for his guilty plea.[16]We have reflected on those submissions in the light of the observations made at the beginning of this judgment. This applicant is a man of unstable temperament. He has a serious criminal record. He was carrying two weapons at the same time in the middle of the night in a street in Basingstoke. Without addressing the argument any further, and with no discourtesy intended to it, we can simply reflect the robust language used by the judge in his sentencing remarks. In essence, that reflects what we have been endeavouring to encapsulate in this judgment. In conclusion, this application for leave to appeal is unarguable and will accordingly be refused.[17]John McGeary is 34 years old. He has two old previous convictions. On 19th March 2008 in the Crown Court at Newcastle before His Honour Judge Milford he pleaded guilty to a single count of being in possession of an offensive weapon without a reasonable excuse. On 2nd May he was sentenced by His Honour Judge Prince to four months' imprisonment. On that occasion two co-accused were similarly sentenced. Hillary, for having an offensive weapon, was sentenced to four months' imprisonment and Miller, for a similar offence, was similarly sentenced. Appropriate orders of forfeiture and disposal were made.[18]This case sounds on a superficial reading to be one of not any great importance, because, in the result, no harm was suffered by anyone and a weapon was not in the end used to threaten or to cause fear.[19]The story has a domestic beginning. The applicant's brother had started a relationship with the estranged wife of the man called Miller. The details are unimportant, but ill-feeling developed between the two men. They met in the streets in Jarrow in the early hours of 5th December 2007, to, as it was described, "resolve" the matter. The two men were not alone. Hillary was there in support of the applicant's brother and the applicant was there to support him. A fifth man was also present in support. So on this occasion there were four men resolving the matter with one.[20]Fortunately, no actual confrontation took place. The police got to the scene before there was any trouble. Having got to the scene, all the protagonists were searched. The applicant was found to have a kitchen knife in his sock, Miller had a knife in his possession and Hillary had a metal pole in his waistband.[21]When he was interviewed, the applicant said that he had taken the knife with him for protection. He had only had it in his possession for a very few minutes, five minutes or so.[22]The pre-sentence report addressed the problem of the relationship between the applicant's brother and the estranged partner of Miller. It described the ill-feeling that had arisen and the arranging of the meeting. The applicant expressed regret for what he had done. His personal details need no analysis in the course of this judgment. It is sufficient to say that he had attended a school for children with special educational needs and had been claiming long term sickness based income support. The writer of the report believed that there was nothing to indicate that he represented a risk to the public and the applicant was suitable for all disposals except unpaid work. It was suggested that the court should deal with the case by way of a conditional discharge.[23]The grounds of appeal are that the sentence was manifestly excessive in all the circumstances and that a non-custodial sentence would have been or was appropriate. The judge rejected the suggestion that there should have been any other sentence than a custodial sentence.[24]We have analysed the case in a rather different way to the way in which it has been analysed to date. This is a much more serious offence of its kind than the mere possession of a weapon. For a start, this was a scene in the middle of the night where three of those attending were armed. That does not suggest that there was going to be a peaceful exchange of private views in a civilised way. Three weapons were carried to the scene for a meeting where the potential for serious violence was obvious. It is, as we have already indicated, fortunate that the police were able to intervene before anyone was hurt, before there was any public disturbance, but that is not to the credit of any of the defendants and not to the credit of this applicant in particular.[25]In our judgment arming yourself and joining in with others who have armed themselves for the purpose of a confrontation like this simply cannot be mitigated by the assertion that the weapon was taken for self-protection or self-defence. Moreover, this offence does not fall within any possible guidance based on his suggestion that the weapon was not used to threaten or cause fear. It was only not used for those purposes because of the intervention of the police.[26]In our judgment, in rejecting this application for leave to appeal against sentence, we should record that the applicant and his co-accused, who were carrying weapons, were fortunate. Longer sentences would have been fully justified, and, in our judgment, would have been appropriate.[27]Clifton Pownall is 36 years old. He has many previous convictions, including 17 previous convictions for burglary. He has been dealt with by way of custodial and non-custodial sentencing. On 29th November last year, in the Crown Court at Birmingham before His Honour Judge Gregory, he pleaded guilty on one indictment to possessing a controlled drug of class A, heroin; count 2, possessing a controlled drug of class A, cocaine; count 3, possessing a controlled drug of class C, cannabis; and count 4, having a bladed article. On a separate indictment he pleaded guilty to burglary.[28]On 17th January he was sentenced to two and a half years' imprisonment for burglary, together with six months' imprisonment for the two offences of possessing a controlled drug of class A and one month's imprisonment for possessing a controlled drug of class C, those sentences to run concurrently with each other, but consecutive to the sentence for burglary, and nine months' imprisonment consecutive for the offence of being in possession of a bladed article. The total sentence, therefore, was three years and nine months' imprisonment. 133 days spent on remand were ordered to count towards the sentence. Appropriate orders were made in relation to the forfeiture, destruction and disposal of the drugs and the bladed article.[29]This is a renewed application for leave to appeal against sentence, following refusal by the single judge.[30]The first group of offences arise from an incident which began on 21st March 2007 at about midday when the applicant approached a ticket barrier at Birmingham New Street station. Staff queried with him whether he had a ticket. Matters escalated. Those two words do not quite convey the degree of tension generated by some of the language used by the applicant. The police arrived at the scene. He was arrested. His bag was searched. It was found to contain single deals of heroin, crack cocaine and cannabis and a letter opener, which was bone handled and described as a sharpened bladed instrument. When he was interviewed, the applicant asserted that he carried the bladed instrument as an old letter opener given to him by his father which he carried about for sentimental reasons, using it as a multi-purpose tool. He said that it was not sharpened. As to the drugs, possession of those was admitted on the basis that they were for personal use. At the conclusion of the appropriate procedures the applicant was bailed.[31]On 24th May, at 12.55 in the morning, the landlord of the British Oak public house in Birmingham city centre was woken by his wife who could hear someone downstairs. He got up. He expected that it was one of the lodgers staying at the public house helping himself to some food from the kitchen, but he went down into the kitchen. There, instead of finding one of his lodgers, he found the applicant, who was seeking to hide himself away in a cupboard. The applicant was holding one of the kitchen knives which belonged to the public house. The landlord shut the cupboard door on the applicant and grabbed hold of his wrist, insisting that he put down the knife. A struggle developed. In the course of the struggle the applicant said that he only wanted food. The landlord said that he could have some food, but insisted that he put down the knife, which the applicant eventually dropped. The landlord took him upstairs. The applicant showed him the open window on the landing he had used to gain access to the premises. The landlord pushed him through a fire exit, the applicant jumped to the ground and ran off. He was arrested on 4th September. In interview he denied responsibility for the burglary.[32]Some question arose in the course of the hearing before Judge Gregory about whether this incident should be treated as having taken place in the kitchen of the public house as an adjunct to the bar, or whether it had taken place in the landlord's private living quarters; and if so it was suggested that the case should not proceed on the basis that this was a dwelling house burglary. So far as we are concerned, that was a difference of no significance. A burglary took place in circumstances in which a man and woman asleep in their beds at night were woken by an intruder.[33]We have indicated something of the nature of the applicant's previous convictions. Of the 17 previous burglary offences 13 had taken place in a dwelling house.[34]In the pre-sentence report the applicant was adamant that the bladed article was a letter opener, not a weapon. He admitted the burglary, asserting that he had committed it because he was hungry and needed to find some food. He was inclined, according to the pre-sentence report, to minimise his actions. The offender blamed his offending and his lack of self-control on his upbringing. According to the writer of the report, the offender posed a high risk of reoffending and a medium risk of harm, particularly when under the influence of drugs or in need of drink. He was not motivated to change.[35]In his sentencing remarks Judge Gregory took account, rightly so, of the shocking record which the applicant had accumulated. The judge concluded, and again he was unarguably right to do so, that the applicant was prepared to attack premises in order to acquire whatever he wanted. As to the particular occasion of the burglary, he had a knife in his hand and it offered a threat to the landlord when the landlord discovered him. The judge noted previous arrests and previous occasions when a bladed knife had been found in the applicant's possession. He made clear that those who carried bladed instruments (and this was now a reference to the bladed instrument carried on the occasion when the applicant was arrested at Birmingham New Street station) would lose their liberty. Accordingly, looking at the matter overall, a substantial sentence was appropriate to protect the public from the commission of further crimes. Credit would be given for the guilty plea.[36]It is suggested in the grounds of appeal that the sentence of nine months' imprisonment on the bladed article offence made consecutive to the other sentences produced a total term of imprisonment that offended against the totality principle. In essence, this argument was renewed before us today by Mr Cook. He directed our attention to the sentence of nine months' imprisonment for possession of the bladed article.[37]Refusing leave to appeal, the single

judge observed:

"It was not inconsistent with authority that the sentence for possessing a bladed instrument was made consecutive to the other sentences. The term imposed for that offence was not manifestly excessive. The question is whether the totality of your sentence is manifestly excessive for your overall offending. In my view, it is not. Your overall sentence is within the range of acceptable sentences for your offending."
[38]The applicant has renewed his application, asserting that the letter opener found in his possession was a sentimental keepsake which he kept for that reason, it having come from his father.[39]We agree with the observations of the single judge. These offences included offences committed on bail by a man with significant previous convictions. In relation to the offence of possessing the bladed article at Birmingham New Street station, we bear in mind that it would have been possible for the applicant to have been charged with possession of the knife which he picked up in the premises which he was burgling and then, at the very least, confronted the owner of the premises with it so that there had to be a struggle before he let it drop.[40]Looking at this sentence overall, and the sentence in relation to the possession of a bladed article in particular, we have come to the conclusion, like the single judge, that the sentence imposed on this applicant was neither manifestly excessive nor wrong in principle. Accordingly, this renewed application is refused.[41]The last of these cases concerns Daniel Bleazard. Bleazard is a man of 34. He has numerous previous convictions, but he has never before been ordered to serve a custodial sentence.[42]In September 2005 for possession of a bladed article he was made subject to a community service order. Then two months later, in November, an Anti-Social Behaviour Order was imposed on him, one particular term of which was that he was prohibited from doing anything likely to cause alarm, or distress or harassment to others. He was in breach of that Anti-Social Behaviour Order in November itself and then again in April 2006.[43]On 19th December 2007 in the Crown Court at Bradford, before His Honour Judge Durham Hall QC and a jury, he was convicted of four offences: count 1, breach of the anti-social behaviour order; count 2, possession of a bladed article; count 3, going equipped for theft; count 4, possession of a bladed article. The judge ordered a psychiatric report and on 29th January sentenced the appellant as follows: count 1, 18 months' imprisonment; count 2, three years' imprisonment to run consecutively; count 3, 18 months' imprisonment to run concurrently; and count 4, possession of a bladed article, 18 months' imprisonment to run consecutively. That made a total of six years' imprisonment. A direction was made that 41 days spent on remand should count towards the sentence. Appropriate forfeiture orders were made.[44]The appellant appeals against sentence by leave of the single judge. The single judge concluded that this court should consider, whether, as a matter of totality, the sentence imposed on the appellant after a trial was excessive.[45]On 24th May last year a royal visit was taking place in Huddersfield. The visit took Her Majesty the Queen to St George's Square where a welcoming crowd of men, women and, of course, children had gathered. The applicant went to the scene. He was carrying a felling axe in a carrier bag. He tried to push his way to the front of the crowd. Naturally enough that upset a number of those who had already assembled. At first it was thought, naturally enough, that he was simply just being something of an anti-social bully, trying to get a better view of the Queen at the expense of others who had bothered to get there earlier. It was suggested to him that he should show some understanding and, in effect, be polite, courteous, and recognise the position of the children, who would, of course, want to have a very good view of the Queen. He did not appear to respond.[46]The officer then observed a long handle protruding from a carrier bag which the appellant was making efforts to conceal. The details of how a simple plan was brought into play by the police do not matter for present purposes, but the appellant was arrested. The carrier bag was searched and it was found to contain the felling axe.[47]When interviewed, the appellant agreed that he should not have been walking about the streets with this serious weapon in his possession. The case proceeded as a trial. The judge was concerned not only at the distress and alarm which the appellant had caused, but also at what he believed was the appellant's intention to approach as close as he possibly could to the Queen and to brandish the axe in order to provoke a reaction from the police, some of whom, of course, would, as happens nowadays, have been armed. The judge expressed great concern about the possibility that firearms might have been discharged, which could, of course, have been catastrophic.[48]The appellant was granted bail following his arrest. Within some three weeks or so, at about 1.30 in the morning on 14th June, he was stopped by police officers on mobile patrol as he was walking along the street. His outer jacket appeared to be bulky, as though he was carrying something inside it. He was fumbling in his pockets and said that he was on his way to a petrol station to buy some matches. At this point one of the officers got out of the car. The appellant was told that the officer intended to search him. Before the search could begin, the appellant handed over a pair of gloves, a torch, a hammer, a box of coloured chalk, numerous personal items and a Stanley knife. He was arrested. When he was interviewed, he declined to comment. This case, too, proceeded as a trial.[49]As we have indicated, the applicant has a number of previous convictions, but he has not previously been sentenced to a custodial sentence. At the time with which we are concerned he had been made subject to a community service order and was, we believe, still subject to the Anti-Social Behaviour Order.[50]The pre-sentence report recommended a community order with a requirement for supervision. There was, it was said, a medium risk of reoffending and harm being caused to the public.[51]The psychiatric report concluded that the appellant did not suffer from any mental illness or learning disability. He presented as what was described as slightly odd man.[52]The single judge directed that a prison report should be obtained. We have read it. There is nothing to dispel the concerns expressed by the judge when passing sentence.[53]The judge was extremely concerned of course, as we have indicated, about the offence which related to the carrying of the felling axe. The maximum sentence available to the judge for that offence was four years' imprisonment. The judge acknowledged the history, was concerned about the individual offences, and then concerned yet again about the subsequent offence after the applicant had been released on bail. Accordingly, a substantial sentence was appropriate and this sentence of six years was imposed.[54]The submission in essence is that a substantial sentence was inevitable and appropriate, but it is contended that one of the problems with the way in which the sentence was structured was that the same physical actions, that is to say the possession of the axe, constituted both the offences in counts 1 and 2, that is to say the possession of the weapon and the breach of the Anti-Social Behaviour Order.[55]It was not argued that consecutive sentences were inappropriate or wrong in principle, but it was contended that the total sentence imposed in the result was too long and it was argued that the sentence for the breach of the Anti-Social Behaviour Order should therefore have been shorter. It was also submitted that, taking the matter as a whole, the totality principle was damaged. This was a man who had not previously been sentenced to a custodial sentence. That was a feature which had to be taken into account. We were reminded in the most courteous way that a degree of proportionality was appropriate, in that we were examining a sentence of six years' imprisonment and we had to set that sentence for these offences against sentences which might have been imposed for quite serious offences of violence, or sexual offences, or robbery.[56]Those submissions seem to us to be well-founded, at least in part. Our conclusion is that, given the circumstances in which count 1 and count 2 both related to identical behaviour, the total sentence in that case was excessive. The sentences for possession of the bladed articles will not be interfered with. They seem to us to have been entirely appropriate and we say nothing which implies any criticism of them. We have taken the view that the appropriate way of dealing with this case is to reduce the sentence for breach of the Anti-Social Behaviour Order from 18 months' imprisonment to six months' imprisonment to run consecutively, as is conceded would be appropriate. In this way the total sentence on this appellant will be reduced from six years' imprisonment to five years' imprisonment. To that extent, this appeal is successful.[57]Before parting from the case, we would like to acknowledge to all counsel who have been involved that we have been grateful for their endeavours, and, if we may say so, they have been particularly marked by the great forensic quality of being economical. Thank you all very much indeed.

Cited in 4 later judgments