Podmore [2018] EWCA Crim 2463

Regina v Zackery Podmore [2018] EWCA Crim 2463 concerned an appeal against a two-month immediate custodial sentence for possessing an offensive weapon, which the Court of Appeal (Criminal Division) allowed, substituting a suspended sentence.

Mr Podmore pleaded guilty on 8 June 2018 in the Crown Court at Stoke-on-Trent to having an offensive weapon contrary to section 1(1) of the Prevention of Crime Act 1953. On 8 October 2018, His Honour Judge Glenn sentenced him to two months’ imprisonment. No evidence was offered on two further counts of having an article with a blade or point, and not guilty verdicts were entered. Two co-defendants, Jordan Burton and Chandler Gallimore, both received nine months’ detention for having articles with a blade or point.

The facts were that in September 2017 Mr Podmore, then aged 26, lived at a YMCA hostel in Handley with the co-defendants, who were aged 17 and 18. On 5 September 2017, another resident, Ms Mercer, reported that the group planned to travel to Stoke-on-Trent to harm a young man about whom rumours had been circulating that he had committed a sexual offence. Burton showed Ms Mercer a joker face mask and a knife concealed in his rucksack. Gallimore showed her a black skull face mask. When Ms Mercer left the hostel, the men followed. Burton again showed her the knife, and Mr Podmore continued to utter threats of harm towards the intended victim. Ms Mercer parted from the group and alerted the police. When officers stopped the group in Handley, Burton admitted possession of the knife and the joker mask was found in his rucksack. Mr Podmore was found wearing a bandanna and in possession of a hammer of the sort used to smash through train windows. Gallimore had the skull face mask and an arts and craft scalpel. In interview, Mr Podmore claimed he had been persuaded to go along by the others and intended to warn the victim. He claimed the hammer, which had been in Burton’s room, had fallen into his jacket pocket.

Mr Podmore had no previous convictions and one caution from 2012 for shoplifting. A pre-sentence report described him as emotionally younger than his years. He accepted having the weapon and was aware of the group’s intentions, though he blamed a co-defendant. The probation officer assessed him as presenting a low risk of general reoffending and a low risk of serious recidivism, but a medium risk of serious harm. The officer considered that Mr Podmore’s court appearances had been a salutary experience. He would struggle in a custodial environment and potentially be negatively influenced by others. The report recommended a community order with rehabilitation activity and unpaid work requirements. A forensic psychologist’s report dated 26 July 2018 concluded that Mr Podmore had a mild intellectual disability with significant cognitive functioning difficulties in verbal comprehension, reasoning, non-verbal reasoning, and working memory. His difficulties would present challenges for therapeutic work in prison. He would need extra support to understand expectations and requirements in custody and was considered socially vulnerable to peers who might exploit his intellectual disability. Mr Podmore had attended a special needs school for nine years and had been in counselling for mental health problems in 2016 to 2017, having been prescribed antidepressants for four years.

In sentencing, Judge Glenn gave full credit for the guilty pleas and took account of delay. He observed that the group had been going to the victim’s address with weapons and disguises, making threats to get him, kill him, teach him a lesson, and cut off his genitals. There was no evidence of any defendant seeking to disassociate from the venture, and the judge inferred that far more serious behaviour would have followed had the police not intervened. The court had a duty to prevent vigilante-style behaviour, particularly involving weapons. The judge rejected Mr Podmore’s account that he would have alerted the victim or left the group, noting it was inconsistent with Ms Mercer’s evidence and that Mr Podmore had been the one speaking of mutilating the victim and discussing how to get him out of the house. The judge referred to the Sentencing Council guideline for bladed articles and offensive weapons. He assessed culpability as category C, whereas the co-defendants were category A due to the different nature of their weapons. The judge found that the offence was committed in circumstances where there was a risk of serious disorder, placing it in category 1. The starting point for category 1C was three months, reduced to two months with full credit for plea. The judge concluded that the offences were so serious that only immediate custody was appropriate for all three defendants.

On appeal, Mr Turnock, appearing as solicitor-advocate for Mr Podmore, advanced two principal submissions. First, he argued that the judge had mischaracterised the offence under the guideline. While accepting that culpability was category C, he contended that the case should have been treated as category 2C because no actual harm was caused and the defendants had been detained some distance from the intended victim’s home. Second, he submitted that the judge ought to have suspended any custodial sentence.

The court, comprising Lady Justice Hallett DBE (Vice President of the Court of Appeal Criminal Division), Mr Justice Nicol, and Mr Justice Butcher, rejected the first submission. Mr Justice Nicol, delivering the judgment, emphasised that the guideline required assessment of the level of harm caused or risked. The judge had been plainly right to conclude that the level of harm risked to the intended victim was serious harm or distress, making this a category 1C case. The starting point of three months was therefore correct before reduction for plea. Mr Turnock acknowledged that this was not his strongest point.

On the second submission concerning suspension, the court considered the Sentencing Council guideline on imposition of community and custodial sentences. Judge Glenn’s conclusions that the custody threshold had been crossed, that custody was inevitable, and that two months was the shortest commensurate term were all within the range of responses open to him. However, the court examined the factors relevant to whether the sentence could be suspended. Two of the three factors indicating suspension would not be appropriate were plainly inapplicable. Mr Podmore did not have a poor history of compliance with court orders, and he presented a low risk of general reoffending and serious recidivism. The medium risk of serious harm related to the index offence itself. The remaining factor, that appropriate punishment could only be achieved by immediate custody, must have been what the judge had in mind.

The court then turned to factors favouring suspension. Two were particularly important. First, there was a realistic prospect of rehabilitation. Mr Podmore had no previous convictions and no indication of similar behaviour before or since the offence. The pre-sentence report noted that he was currently living with a man bearing a conviction for a sex offence similar to what the group had wrongly believed the intended victim to have committed, yet had not engaged in similar conduct. The report indicated that the risk he presented could be safely managed in the community where his thinking could be challenged in a more prosocial setting. Second, there was strong personal mitigation in the form of the psychologist’s report identifying cognitive deficiencies likely to have been directly related to his succumbing to peer pressure from his co-defendants. A further relevant factor was the short length of the term contemplated. While short prison sentences might be salutary or unavoidable where suspended sentences had previously failed or community penalties had been unsuccessful, none of that applied to Mr Podmore given his lack of previous convictions and only one unrelated caution.

The court observed that the judge had taken the starting point of three months without then taking account of mitigating factors, namely Mr Podmore’s good character and the psychological report. This combination did not apply to the other two defendants. These mitigating factors needed to be reflected either by reducing the sentence length or by suspending it. The judge had done neither. Although this was not an easy sentencing exercise, particularly with co-defendants who required detention, the court concluded that an immediate sentence of two months’ imprisonment was outside the range of sentences properly open to Judge Glenn.

The court granted permission to appeal and allowed the appeal, quashing the two-month immediate custodial sentence. It substituted a two-month custodial sentence suspended for one year with a supervision period of twelve months, both running from 24 October 2018. Mr Podmore was also required to complete twenty-five rehabilitation activity requirement days. Since he had already served a little over two weeks in custody, the court did not consider it necessary to add an unpaid work requirement. In short, the immediate custodial sentence was outside the proper range given the appellant’s good character, cognitive difficulties, realistic prospect of rehabilitation, and the absence of previous convictions, warranting a suspended sentence with supervision and rehabilitation requirements instead.