Frazer Skinner [2019] EWCA Crim 1321

In Frazer Skinner [2019] EWCA Crim 1321 the Court of Appeal (Lord Justice Leggatt, Mr Justice Popplewell and His Honour Judge Marson QC) dismissed an appeal against a sentence of 17 months’ immediate custody for possession of a bladed article and activation of a suspended sentence.

Mr Skinner pleaded guilty to possession of a bladed article and was sentenced by Mr Recorder Harrington at Liverpool Crown Court to five months’ imprisonment. The Recorder activated 12 months of a previously imposed suspended sentence order to run consecutively, producing a total of 17 months. Mr Skinner also fell to be sentenced for driving whilst under the influence of drugs, for which the Recorder imposed no separate penalty but imposed mandatory disqualification of 12 months plus a discretionary period of eight months to reflect the custodial element after allowance for time served on remand.

Mr Skinner was 22 years old at sentence and had been of previous good character until the age of 20. The suspended sentence order had been imposed on 19 January 2018 at York Crown Court for an incident outside a nightclub in which he used threatening words or behaviour and was in possession of a Taser disguised as a mobile phone which he discharged during the altercation. He had been sentenced to detention in a young offenders institution for two years, suspended for two years, with an unpaid work requirement of 200 hours. Three months into that sentence, on 28 April 2018, Mr Skinner committed the index offences. He was driving when a police officer pulled him over voluntarily. The officer smelled cannabis and searched the car, finding a kitchen knife of over three inches in length in the driver’s side well. Mr Skinner told the officer it was for cutting up his sandwiches. He was taken to the police station where he admitted having smoked cannabis the day before and having taken cocaine two days earlier. He tested positive under the drug driving procedures. In interview he repeated that he kept the knife in his car to cut up sandwiches for his lunch breaks at work.

At the plea and trial preparation hearing on 13 December 2018, Mr Skinner pleaded not guilty and a trial date was fixed. In the meantime he breached the requirements of his suspended sentence order by failing to attend and a further 25 hours of unpaid work were added. On the day of trial he was re-arraigned and pleaded guilty on the basis that the knife was for making sandwiches at work. The Crown rejected this basis of plea and the Recorder held a Newton hearing at which Mr Skinner, his mother and a work colleague gave evidence. The Recorder rejected the evidence of Mr Skinner and his colleague that the knife was kept for that purpose, although he said he was unable to make any positive findings as to its actual purpose. By the time of the sentencing hearing, Mr Skinner had completed all 225 hours of unpaid work under his suspended sentence order.

The Recorder treated the offence as falling within Category 2A of the relevant guideline which identified a starting point of six months and a range of three to 12 months’ custody. On appeal, Mr Skinner submitted through Mr Batterton that the sentence should have been suspended; that the length of the suspended sentence which was activated was excessive given that he had completed all of the unpaid work requirement; and that the total length of 17 months was manifestly excessive. Reliance was placed on a number of mitigating factors: the lack of evidence of any intention to use the knife to threaten or in self-defence; his young age at the time (he was not quite 21); his previous good character before the Taser offence; his late plea of guilty; the length of time since the commission of the offence; his engagement with the requirements of the suspended sentence order and in particular completion of the community requirements; and the fact that he was expecting his first child. Counsel argued that he had matured and accepted responsibility for his actions.

Mr Justice Popplewell, giving the judgment of the court, held that there was no doubt that an immediate custodial sentence was called for. The bottom of the range set out in the guideline for possession of a knife was three months’ imprisonment and the modern scourge of knife crime dictated that immediate custodial sentences would normally be called for. The offending was significantly aggravated by the fact that this was a second weapons offence. The court held that a sentence of five months gave ample, perhaps generous, credit for the mitigating factors identified. As to the suspended sentence order, this had been imposed for what was itself a serious offence involving discharging a disguised Taser in the course of an altercation outside a nightclub, meriting a sentence of two years in custody. Mr Skinner was well aware, as the Recorder had observed, that he must abstain from further offending if he was to avoid serving that sentence in prison. The activation of only half the custodial element of the sentence adequately reflected the completion of all the work hours and took account of the principle of totality.

In short, an immediate sentence of five months for a second weapons offence, with activation of only half of a two-year suspended sentence for a serious Taser offence, was neither wrong in principle nor manifestly excessive.