Powell, R. v

MR JUSTICE SIMON: On 17th November 2008 at Canterbury Crown Court, the appellant, now aged 33, pleaded guilty to two counts on a new indictment. On 18th December she was sentenced to two years' imprisonment on count 2, which charged an offence of having an offensive weapon, and to six months' imprisonment to be served concurrently on count 1, which charged her with an assault. The overall sentence was therefore two years, with 94 days spent on remand to count towards that sentence. An earlier indictment containing counts charging assault occasioning actual bodily harm and having an offensive weapon was stayed. She appeals against that sentence with the leave of the single judge.

The circumstances giving rise to the offence were these. The appellant worked at an Asda store in Canterbury, where she befriended a woman named W, who also worked at the store. The appellant gave to Miss W the mobile telephone number of a man with whom the appellant had previously been in a relationship. When the two of them began to see each other the appellant became jealous. It appears that she threw a bottle of water at Miss W, which led to her dismissal from employment at the store.

On 15th September 2008 she went back to the store, selected a large kitchen knife from a display and removed it from its packaging. She then went up to Miss W, who was working at one of the check-out tills, and pulled her hair back, causing some reddening of the scalp. That assault gave rise to the charge under count 1. At this point, more seriously, the appellant then put the point of the knife she was carrying to Miss W's throat. She struggled and called out for help; and then sensed the knife being moved across her throat to the side of her neck. This gave rise to the charge under count 2. Two members of staff came over at this point, pulled the appellant away and disarmed her, suffering minor cuts to her hands as they did so. The appellant was restrained but continued to shout, "You've ruined my life", at the complainant.

In interview the appellant said she had gone back to the store to see old colleagues, but the sight of the complainant had brought back all her old feelings of jealousy and resentment. She said she did not intend to hurt her and that the victim had not deserved what had happened to her. She said to the police, "I must tell you, I feel really guilty, I can't believe I really did it".

She had not previously appeared before the courts and the pre-sentence report described her as demonstrating insight and remorse. She had become preoccupied with the complainant and fantasised about harming her because of her relationship with a man with whom the appellant had a brief relationship. She had used the complainant as a focus for her problems and negative feelings. She had been aggressive towards the complainant on a previous occasion. Distorted and obsessive thought processes underlay the offences. She struggled to develop satisfactory relationships with others, misinterpreted positive attention and quickly became emotionally attached. The risk of re-offending was low to medium. She had a history of depression and used alcohol as a coping mechanism. In the view of the writer of the pre-sentence report she posed a high risk of self-harm and suicide attempts. The report proposed a community or suspended sentence order with supervision and exclusion requirements.

The psychiatric report which was available to the judge described a history of mild depressive episodes, which had been treated with anti-depressant medication, and an adjustment disorder following the break up of her relationship. She was not, however, suffering from any significant psychiatric illness. She had a lack of self-confidence and low self-esteem. She bottled up anger and frustration and this had led to an uncharacteristic episode. She would benefit from the ongoing use of anti-depressant medication and counselling or group therapy. She was vulnerable to developing a more depressive condition if faced with significant or prolonged stress, such as a lengthy custodial sentence.

In passing sentence, the judge set out the facts and accepted that the incident would not have gone any further. In his view the offence was committed in the context of knife crime that was rife and getting out of control. In mitigation were her guilty pleas and the contents of the pre-sentence and psychiatric reports. There had to be a significant custodial sentence so that the public could feel sure that the courts were protecting them. Her personal needs had to come second to that, and they would be dealt with in prison so far as possible.

In the grounds of appeal supplemented orally today by Mr Rollin it is said that the sentence of two years did not reflect the absence of a number of aggravating circumstances and laid too much emphasis on aggravating circumstances which were not, on proper analysis, such.

We should say at once that we do not agree with the suggestion in the pre-sentence report that a community sentence should have been imposed. The taking of and the deployment of the knife was a calculated act and was bound to cause extreme fear to the victim and a high degree of anxiety to those who saw what happened. The danger implicit in the appellant's actions is demonstrated by the injuries, albeit minor, suffered by those who tried to disarm her. On the other hand, there were a number of mitigating factors. The appellant had pleaded guilty at the earliest opportunity to this charge and had expressed remorse too at a very early stage. Although this would not have been known to the victim, the judge accepted that the incident would not have gone any further. The crime did not have the aggravating features identified by this court in R v Pouton and Celaire [2002] EWCA Crim 2487. Furthermore, there were no previous convictions for violence or carrying weapons. Indeed, the appellant had a positive good character. The weapon had not been carried around with the intention of using it if the occasion arose and was not used with the clear intention of causing fear, although this would plainly have been the consequence.

In our view, the judge was wrong to treat this case as conforming to the type of crime with which the public and the courts are particularly concerned: the habitual carrying of knives with the associated risk to public safety, see the guideline case of R v Povey and others [2008] EWCA Crim 1261.

In the light of these circumstances we have concluded that a three year starting point was too high and the appropriate sentence was one of 18 months' imprisonment on count 2 and three months' imprisonment concurrently on count 1 to take into account the guilty plea, therefore 18 months' imprisonment in total. We therefore quash the sentence of two years' imprisonment and the sentence of six months' imprisonment and substitute these sentences. To that extent the appeal is allowed.