Jason Walker [2019] EWCA Crim 1190

Jason Roy Walker [2019] EWCA Crim 1190 concerned an appeal by the applicant against thirteen months’ immediate imprisonment imposed at Plymouth Crown Court for two offences of possession of a bladed article in a public place.

Mr Walker had pleaded guilty before magistrates to both offences and was committed to the Crown Court. On 24 April 2019 His Honour Judge Darlow sentenced him to seven months’ imprisonment for the first offence and six months consecutive for the second, together with the usual orders for forfeiture and destruction of the knives and payment of the victim surcharge. The applicant appealed with leave of the single judge.

In the early hours of 8 March 2019 Mr Walker was seen behaving erratically by door staff outside the Popworld nightclub in Union Street, Plymouth. He had been present for a number of hours and had asked to come inside the club on four or five occasions but had been refused entry because he appeared very drunk. At about 1.10 am he said to a member of the door staff, “If you don’t let me in you’ll regret it. Have you seen Freddy vs Jason? I can be your worst nightmare.” This was an obvious reference to a well-known slasher film. He was holding a can of cider at the time and the handle of a knife was visible in the inside left breast pocket of his jacket. Two members of door staff took hold of Mr Walker, removed the knife from his jacket and flagged down a passing police car. The knife had a four-inch blade. When arrested and searched, police found a second knife with a six-inch blade concealed in the lining of his jacket. This knife was removed with some difficulty.

Mr Walker made admissions in interview, saying that he was in possession of the knives because he had a fear of being in public without one, which appeared to be linked to certain mental health difficulties. He denied trying to conceal the second knife. It appeared that the knife had cut a hole in the pocket into which it had been placed and slipped into the lining.

In passing sentence, the judge observed that at the time Mr Walker was in possession of the knives he was drunk and threatening others, although not with the knives. The judge noted a defence submission that the offences were correctly categorised as A2 but said that if so it was a very high A2, and that if the matter had been contested Mr Walker would have been looking at a total sentence of twenty months. The judge noted Mr Walker’s poor record, particularly for drug offences and offences of dishonesty, and an abject failure to engage on any long-term basis with community disposals. The judge took account of the early guilty pleas, the fact that neither knife had been produced, the question of totality and Mr Walker’s behaviour in prison, where for the first time in his adult life he had succeeded in detoxifying entirely from drugs, whether prescribed or not. The judge concluded that had the matter been contested the total sentence would have been twenty months, then gave credit for the plea reducing the total by seven months to thirteen months, structured as seven months on the more accessible knife and six months on the less accessible one. When counsel queried that the sentence was significantly outside the A2 bracket, the judge stated that each of the two separate offences had a bracket of three to twelve months and that he had gone for ten months on each.

Mr Walker was aged 43 at the date of sentence and had 22 previous convictions between 1991 and 2015, largely for theft and kindred offences and for drugs offences. There were assaults as a juvenile but no violence as an adult save a single section 5 Public Order Act offence in 2009. He was last imprisoned for threatening criminal damage in 2015. An initial pre-sentence report assessed Mr Walker as having a high risk of reoffending, taking into account the decline in his mental health, the lack of support and stable protective lifestyle factors, and assessed him as posing a medium risk of causing serious harm. That report concluded that no recommendation could be made until a mental health assessment had been undertaken. An addendum report stated that the mainstay of Mr Walker’s mental health problems was his substance misuse. His previous engagement and compliance with probation and the agencies to which he had been referred suggested a level of ambivalence on his part to making any changes in his life. Whilst his behaviour in custody had been positive, there was nevertheless a pattern of his behaving well in custody and quickly relapsing on release. The report said he was not suitable for any community sentencing options and the most effective way to manage his risk was the imposition of a custodial sentence.

On appeal, Mr Walker advanced four grounds although the single judge agreed that the real point was whether the judge was justified in taking a starting point of twenty months after a trial for carrying both knives. Mr Lewin repeated his submissions that these were category 2A offences and argued that the matter should have been dealt with either by concurrent sentences or that there had been inadequate allowance for totality.

The court addressed the question of categorisation. Each offence clearly fell into Culpability A, being knives. In the context of this case they would fall into harm Category 1 if committed in circumstances where there was a risk of serious disorder and into Category 2 if not. The court acknowledged that some judges may conclude the offence fell into Category 2, but held that the circumstances taken together meant that the visible knife, which the court called the primary knife, was possessed in circumstances where there was a risk of serious disorder. The court emphasised that this was a drunk man in a city centre area, specifically Union Street Plymouth in the early hours, persistently trying to enter the nightclub and making threats expressly referencing a well-known slasher movie at a time when the handle of a knife was readily visible in his jacket pocket to those to whom he spoke. The overt threat referencing knife violence demonstrated that risk when combined with the other factors. The court acknowledged that the knife was not produced albeit that it was visible, but observed that had the appellant produced the knife he would doubtless have faced the much more serious offence of threatening with a blade in a public place contrary to section 139AA(1) of the Criminal Justice Act 1988. The court concluded that the judge was, if anything, too generous to the appellant in any concession that these offences may be at the top end of A2.

The court held that the starting point for the primary knife was one year six months with a range of one year through to two years six months. The secondary knife was within the jacket lining and difficult to extract, so the court concluded it did not give rise to any risk of serious disorder and therefore would merit a starting point of six months. In terms of factors increasing seriousness, the court considered Mr Walker’s previous convictions, although none of course involved the possession of knives. The fact that he was under the influence of drink was a factor the court had already taken into account in assessing the starting point. In mitigation there was little more to be said than that he had made substantial efforts to address his drug problems whilst in custody, including achieving a drug-free status for what the court understood to be the first time in his adult life. The court stated that this was to be commended and was impressive, although it remained the case that there had been a pattern in the past of his doing well in custody only to relapse on release. The court did not consider that the balance of the aggravating and mitigating factors indicated any substantial departure from the starting point. Those starting points aggregated would fully justify a sentence of two years, and a reduction of four months would in the court’s judgment properly reflect the issues of totality within the totality guideline. Mr Walker was entitled to and received full credit for his guilty pleas.

The court observed that however a sentence is structured, a person who goes out in these circumstances with not one but two knives must expect to be treated significantly more severely. Given the circumstances of the offences and the pre-sentence report and addendum, there was no alternative other than for the sentences to be of immediate custody. The court stated that although for the reasons it had given it might have structured the sentence somewhat differently, the overall sentence of thirteen months could not be described as manifestly excessive. In short, the Court of Appeal dismissed the appeal, holding that the sentencing judge had been entitled to treat the primary knife offence as falling into Category 1 owing to the risk of serious disorder and that the overall sentence of thirteen months was not manifestly excessive.