England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		11 April 2000

1. THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer to this Court a sentence said to be unduly lenient. We grant leave.
2. The offender is 33 years of age. On 13th December 1999 he was convicted by the jury, following a trial before His Honour Judge Thomas at Kingston Crown Court, of possessing a firearm with intent to endanger life and possessing ammunition without a firearms certificate. In relation to those offences he was sentenced respectively to 4 years and 12 months' imprisonment concurrently, that is, the total sentence was 4 years' imprisonment.
3. In summary, police officers on 4th August 1999 went to an address in Loughborough Park, Brixton. That was the home address of a man called Alando Bolt who had been arrested. The front door was opened by Dionne Bolt, who managed, to some extent, to delay the entry of the police into the flat.
4. Inside the flat, in the living room, was the offender. One of the police officers had gone round to the rear of the premises and he saw the offender throw an object into a cupboard. When, shortly afterwards, the cupboard was searched, that object was found to be a sock containing a Smith & Wesson self-loading pistol. The safety catch was off; there was a round in the breech, and there were also 12 further rounds in the magazine of the pistol.
5. In a little more detail, the officers were initially searching an address in Coldharbour Lane, Brixton, for crack cocaine and for a handgun and ammunition. It was in the course of the Coldharbour Lane search that Alando Bolt had been arrested. He then told the officers that his home address was 250 Loughborough Park. It was pursuant to that information, and in accordance with the powers of section 18 of the Police and Criminal Evidence Act, that the police officers went to the Loughborough Park address.
6. They arrived at 7.00 am on 4th August. The officers having gone to the front door, and Dionne Bolt having come to the front door, she claimed that she was alone in the premises. But she allowed the officers, after a short delay, to enter. As we have said, another officer had meanwhile gone to the rear of the premises and, when he looked through a window, he saw the offender sitting on a settee. From where he was that officer could hear the verbal exchange which was taking place at the front door between Dionne Bolt and the other officers. As the officer at the back could hear that exchange, so too could the offender. He appeared to panic. He was holding something in his left hand. He threw it into a storage cupboard.
7. The offender was handcuffed and searched and then the storage cupboard was searched. On the floor, in the far left hand corner of the cupboard, was the woollen sock to which we have referred, which was wrapped around the handgun. The sock was shown to the offender and then removed to reveal the handle of the gun. Another sock was also found. The offender denied that the gun was his and he said "You say my gun, I say my gun." He was arrested at 7.15 am.
8. A designated firearms officer attended in order to examine the firearm and he found that the safety catch was off. In order to make the gun safe the magazine was withdrawn and it was discovered that there was, as we have said, a round of ammunition in the breach. Had it been that the officer had put the safety catch back on again, the condition of the firearm was such that it would then have discharged the round in the breach.
9. The firearm was a Smith & Wesson 9 mm P calibre self-loading pistol, in good condition and working order. There were 12 appropriate rounds of ammunition in the magazine and one in the breech. The firearm had a barrel of less than 30 centimetres in length and an overall length of less than 60 centimetres and was a prohibited firearm. The ammunition was not prohibited but it was full metal jacketed, which meant that it was more powerful, for example, than the ammunition used by the Metropolitan Police.
10. The offender in interview denied that the socks were his and denied that he had anything to do with the firearm.
11. On behalf of the Attorney-General Mr Whittam submits that there are a number of aggravating features in the present case: first, the weapon was prohibited and had no lawful purpose; secondly, it was loaded in the way which we have described; thirdly, it was in such a condition that it could have been discharged had the safety catch been moved back to the safe position.
12. Mr Whittam draws attention to three mitigating features:first, the absence from the offender's record of any previous convictions; secondly, the fact that the weapon was not discharged, and thirdly, that no use was being made of the weapon by the offender. Mr Whittam drew attention to two authorities, R v Avis (1998) 2 Cr App R(S) 178, BAILII: [1997] EWCA Crim 3355 and Attorney-General's Reference No 49 of 1999 (R v Chevelleau) [1999] 1 Cr App R(S) 396. In Avis, Lord Bingham CJ outlined the relevant factors in determining the appropriate sentence in relation to firearms offences. He identified four matters of particular relevance. First, the sort of weapon: in the present case it was a genuine weapon, loaded and without lawful use. Secondly, whether use was made of the weapon: in the present case none was. Thirdly, the intention of the person in possession of the weapon, the gravity of the offence increasing according to the gravity of the intention: the intention in this case was to endanger life. Fourthly, the record of the offender: as we have said, this offender has had no criminal record.
13. In Chevelleau this Court increased from 30 months to 6 years' imprisonment a sentence passed on an offender who had pleaded guilty to possessing a prohibited weapon with intent to endanger life. That was a case in which the offender claimed to be in possession of the weapon in order to provide protection necessary by virtue of his membership of a gang. The Court, in giving judgment in that case, said that the appropriate sentence there would have been 8 years on a trial.
14. Mr Whittam submits, in the light of these authorities, that the sentence of 4 years failed adequately to reflect the gravity of this offence; the need to protect the public from firearms; the need for a deterrent sentence and the public concern about offences of this nature.
15. On behalf of the offender Miss Gassman, who represented the offender in the court below, conceded that the sentence passed by the learned judge was a lenient one but, she submits, it was within the permissible bracket open to the trial judge, who had the advantage of having heard the case and was therefore familiar with the relevant circumstances.
16. Miss Gassman drew our attention to the fact that a PII hearing had taken place before the same sentencing judge in relation to the man Alando Bolt, to whom we have referred, as a consequence of which certain information was disclosed to those representing Bolt. In our judgment, that cannot be a matter of relevance or materiality so far as this offender is concerned. Had that material, known as it was to prosecution counsel and to the trial judge, albeit not to Miss Gassman, been of any relevance or materiality so far as this offender is concerned, it would no doubt have been drawn to the attention of the defence, and indeed referred to by the learned judge in the course of his sentencing remarks. Neither occurred.
17. Miss Gassman submits that, in the light of the co-operation displayed by the offender at the scene, in the sense that he did not seek to resist when he was arrested in relation to these matters even if the sentence were to be regarded by this Court as being unduly lenient, it is one with which, in the exercise of its discretion, this Court should not interfere. All of these matters we take into account.
18. In our judgment, following a trial, we would have expected a sentence to be imposed in the court below of at least 7 years in relation to this offence. Having regard to the element of double jeopardy, which is an inevitable feature of Attorney-General's References, whereby the offender is being sentenced a second time, some discount from that sentence is to be called for in this Court. The sentence which we substitute for the 4 years imposed by the learned judge is one of 6 years' imprisonment.