Harding [2018] EWCA Crim 2526

R v Sean Harding [2018] EWCA Crim 2526 concerned an appeal against sentence by a man imprisoned for possessing a bladed article in a public place, with the Court of Appeal allowing the appeal and reducing the custodial term from sixteen to eight months.

On 30 May 2018 Mr Harding admitted before the magistrates an offence under section 139(1) of the Criminal Justice Act 1988 and was committed to the Crown Court for sentence. On 4 July 2018 Her Honour Judge Bacon QC sentenced him to sixteen months’ imprisonment. He appealed against sentence with the leave of the single judge.

On 29 May 2018 at about 8.30 pm Mr Harding entered a small supermarket in Norwich carrying a large kitchen meat knife with a blade of approximately twenty centimetres. He told the staff that he was carrying a knife and asked them to call the police. He then went outside and sat on a nearby bench to await the arrival of the police. When officers approached him one drew his taser, having been told the appellant had a weapon, but colleagues returned their tasers to their holsters as Mr Harding made no attempt to resist arrest. There was no suggestion that he produced the knife at any point.

Mr Harding was born on 16 October 1958. He had six previous court appearances for nine offences between 2016 and 2018, five of which were for possessing a bladed article in a public place. He committed the index offence whilst on licence four days after being released from prison. In a pre-sentence report the appellant explained that his life fell apart when his father died, his employment ended and as a result he lost his flat and became homeless. He had not committed any crimes before then. He stated openly that he had come out of prison and wanted to go back, having no money and nowhere to live. The probation officer was satisfied that the appellant had committed this offence in order to get himself arrested and be returned to prison. She raised the possibility that his mental health was deteriorating and noted that there had not been an assessment by a psychiatrist, although no such assessment was ordered by the Crown Court. She assessed the appellant as posing a high risk of re-offending, referring to his motivation to commit a further offence if not sentenced to prison, and a medium risk of causing serious harm to the public. She recommended a custodial sentence so that interventions could be accessed. A prison report was positive, although no sentence plan had been put in place.

The judge had regard to the Definitive Guideline on Bladed Articles and Offensive Weapons. She concluded that in terms of harm the case fell within Category 1 because serious alarm or distress was caused or risked, saying that had been the appellant’s “entire objective”. His culpability fell into Category A because he had been in possession of a bladed article. She identified the starting point for a Category 1A offence as eighteen months’ custody. She treated as aggravating features the number of previous convictions, all being committed so soon one after another, the fact that he was on licence and that he had failed to respond to conditional discharges. She gave full credit for the guilty plea, leading to the sentence of sixteen months’ imprisonment.

Mr Oliver submitted that the judge had misapplied the guidelines by placing the offence in Category 1A rather than 2A. There was no basis for saying that the appellant’s objective or entire objective had been to risk causing serious alarm or distress. His objective was to be arrested and returned to prison, and to that end he had asked the staff to call the police because he had a knife on him and then immediately went outside to sit on a bench to wait for their arrival. By implication the judge had considered that the sentence before credit for plea would have been two years, which in the circumstances was manifestly excessive.

Mr Justice Holgate, giving the judgment of the court, held that these submissions were well founded. For the reasons given by counsel, the level of harm could not have fallen into Category 1. The starting point for Category 2A was six months within the range of three months to one year. After taking the aggravating factors into account, namely antecedents which included repeat offending of the same type and the commission of the present offence so soon after having been released on licence, and the statutory minimum sentence provisions, the court considered that a sentence at the upper end of the category range was called for, namely twelve months. After allowing full credit for the guilty plea, a sentence of eight months was appropriate.

The court quashed the sentence of sixteen months’ imprisonment and substituted a sentence of eight months’ imprisonment. The court expressed concern that a sentence plan did not appear to have been put in place and expressed the strong hope that an appropriate release plan would be put in place as a matter of urgency. Lady Justice Rafferty stated that the court would invite the Registrar as a matter of urgency to contact the Governor of the prison at which Mr Harding was detained, noting that his release was certain to be imminent. She emphasised that it was a matter of significant concern that there was no release plan in place for this man and that one really ought to be considered urgently. Mr Harding needed structured help so that he and the general public and the scant resources available were all facing in the same direction. In short, the appeal succeeded because the judge had wrongly categorised the harm as Category 1 when the appellant’s obvious purpose was simply to secure his own arrest and return to custody, warranting a sentence of eight rather than sixteen months after full credit for plea.