Atkins, R. v

When deciding whether to impose immediate custody, a court must address separately whether the custody threshold has been passed and whether custody can nevertheless be avoided. Passing the threshold does not itself require a custodial sentence.

A community order may be insufficient where the offence is serious, the offender has not accepted responsibility, and assessed treatment or rehabilitation requirements cannot realistically be complied with. Those matters may also justify refusing to suspend an otherwise appropriate prison term, notwithstanding substantial personal mitigation and a difficult background.

The applicant pleaded guilty in the Crown Court at Kingston-upon-Thames to possessing an article with a blade or point, contrary to section 139 of the Criminal Justice Act 1988. While intoxicated, she carried and threatened her partner with a large bread knife in a public street. A neighbour was frightened by the incident.

The sentencing judge imposed six months’ imprisonment. The applicant appealed against sentence, contending that custody could have been avoided through a community order or, alternatively, that the sentence should have been suspended. The central issue was whether the judge had erred in principle in imposing immediate custody.

1. Leave to appeal was granted, but the appeal against sentence was dismissed. The court accepted that the grounds were arguable but found no error of principle in the judge’s decision to impose six months’ immediate imprisonment.

2. The offence plainly passed the custody threshold. The applicant used a knife to threaten a man in a public street. Her conduct caused fear and distress to a witness and created a risk which caused a bystander to warn the witness not to approach. Even the applicable guideline starting point for a category A, harm category 2 offence was custody.

3. The court emphasised that the next question—whether custody could nevertheless be avoided—was separate. Passing the custody threshold did not itself dictate immediate imprisonment. The applicant’s traumatic history, addiction, abusive relationship, absence of previous custody, and lack of prior probation-based assistance all weighed in her favour.

4. Those factors did not make a community order sufficient. The offence was serious and was aggravated, rather than mitigated, by heavy intoxication. The applicant had repeatedly given accounts which failed to accept that she had threatened her partner with the knife. More significantly, professional assessments did not recommend drug rehabilitation or alcohol treatment requirements because she was unlikely to comply with them.

5. The assessment was not internally inconsistent. It was proper not to impose requirements which the applicant could not comply with. Her inability or unwillingness to comply also entitled the judge to conclude that there was no realistic prospect of rehabilitation. That conclusion supported the refusal to suspend the prison sentence.

• Court of Appeal (Criminal Division): Leave to appeal against sentence was granted, but the appeal was dismissed: [2019] EWCA Crim 678.
• Crown Court at Kingston-upon-Thames: The applicant pleaded guilty to an offence under section 139 of the Criminal Justice Act 1988 and was sentenced to six months’ imprisonment.