England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14 December 2004

1. THE VICE PRESIDENT: Mr Justice Douglas Brown will give the judgment.
2. MR JUSTICE DOUGLAS BROWN: The cases of Andrew James Jordan, Carl Anthony Alleyne and Dave Christopher Redfern have been listed and heard together because of the change brought about in the law in respect of possession of firearms by section 287 of the Criminal Justice Act 2003. Section 51A is inserted following section 51 of the Firearms Act 1968. It provides that the section applies where an individual is convicted of an offence under, in this instance, section 5(1)(aba). Secondly, the section provides that:

"The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum (with or without fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justifies not doing so."

Subsection (4) provides that in the case of an offender over 18 when convicted, the required minimum term is 5 years.

3. In the case of Jordan and Alleyne a sentence of 5 years' imprisonment was passed in circumstances we shall shortly mention. In the case of Redfern, the judge found exceptional circumstances and passed a sentence of 2½ years. That sentence is challenged on behalf of Redfern on the basis that the judge was wrong in some of his remarks in sentencing to which we will turn.
4. Taking these individual cases in turn, Jordan is 25 years of age. On 1 September 2004 in the Crown Court at Leicester, he pleaded guilty to an offence of possessing ammunition without a certificate and possessing a prohibited firearm. On 22 September 2004 His Honour Judge Head sentenced him to 18 months' imprisonment (for possessing ammunition without a certificate), concurrent to the sentence on count 2 (possessing a prohibited firearm) for which he was sentenced to 5 years' imprisonment. His application for leave to appeal against sentence was referred to this court by the Registrar and we have today granted leave.
5. The circumstances briefly were these. On 29 June 2004 police officers visited the appellant at the Leicester Royal Infirmary where he worked as a security guard. They had a search warrant because they believed he had a firearm at his home address. When asked about the weapon he said he did not know what they were talking about, but he was perfectly cooperative. The appellant was taken to his home which was searched and a package was recovered from under a television. It comprised a bag which contained a pillowcase which, in turn, contained a holster which had in it a Smith and Wesson revolver together with cleaning equipment. The weapon dated from the second world war.
6. The weapon was loaded with four 0.38 calibre Smith and Wesson bullets. It was subsequently test fired and found to be in perfect working order. One of the bullets was test fired and found to be live. It was presumed the others were as well.
7. When interviewed, the appellant said that he had had the gun for about six months. He had agreed that the weapon had been hidden, but he did not know much about it as he had been given it by a cousin. He had looked after the weapon unwillingly. He had thought of disposing of it, but he thought that touching it would leave his finger prints and he did not want to leave it buried. The cousin was arrested but as the gun bore no DNA or finger prints and he gave a "no comment" interview no proceedings were taken.
8. The appellant was of previous good character. Supporting his mitigation a number of references were put forward by friends and family which, in summary, conveyed the message that he was a reliable and hard working person who was trustworthy and responsible. We will turn shortly to the submissions made on behalf of Jordan when we have reviewed the circumstances of the other cases. The judge found that there were no exceptional circumstances and that is not the subject of any challenge.
9. Alleyne was convicted on 4 June 2003 at Greenwich Magistrates' Court of one offence of possessing ecstasy; one offence of possessing a prohibited weapon in public; and one of possessing a bladed article. He was sentenced to an 80-hour Community Punishment Order.
10. On 22 April 2004 at the Crown Court at Woolwich he pleaded guilty to an indictment which alleged that he possessed a prohibited firearm, count 1; count 2, possessing ammunition without a firearm certificate; and there was a breach of a Community Punishment Order for which no separate penalty was imposed. He received 5 years' detention in a Young Offender's Institution for possessing a firearm and 12 months' detention for possessing the ammunition. Various concurrent sentences were passed in respect of the matters for which the magistrates had committed him to the Crown Court for sentence. The total was 5 years' imprisonment.
11. The appellant has a number of previous convictions: 1999, common assault; 2003, possessing a class A drug, possessing an offensive weapon in public and possessing a bladed article. He was given in total a Community Punishment Order of 80 hours. He has a more recent conviction.
12. Before the learned judge and before us, Mr Baur, his counsel, submitted that the circumstances in which he came by the firearm and had possession of it did amount to exceptional circumstances. In summary those were that he had been dealing in drugs and working for a drug dealer. The drug dealer had possessed the hand gun in question which he had hidden in woodland. The appellant had decided to leave the drug scene. When he informed the drug dealer of this he was told that there was no question of him doing that and if he tried to stop he would be killed because he knew too much. His solution was to go to the woodland, recover the gun which he kept in his possession for about a week before his arrest. His intention was to prevent the gun being used against himself. He had a vague notion, according to his counsel, that he would use the gun to protect himself if need be. The judge rejected that submission and found that there were no exceptional circumstances.
13. In the case of Redfern he pleaded guilty at the Crown Court at Kingston-upon-Thames on 13 July 2004 to one count of possessing a prohibited firearm. He was sentenced on 3 August 2004 by His Honour Judge Hawkins to 2½ years' imprisonment. He appeals against sentence by leave of the single judge.
14. On 10 May 2004 police officers attended the appellant's home with a search warrant in relation to a wholly unrelated matter. During a search of the bedroom they found a bag on top of the wardrobe. Inside the bag was a box which contained a pistol. In a separate location, but nearby, was a handbook for the weapon which is a Brunei SRL gun. When asked about the weapon, the appellant said, "It's mine. I bought it off a bloke 3 years ago and I think it's an imitation".
15. Although the weapon had a magazine, there was no ammunition. He was arrested. The weapon was examined. It had been modified so that instead of firing blanks, it was capable of discharging a live round. The weapon had been barrelled to make the barrel wider to allow it to discharge an item. It was capable of firing a projectile that could cause death.
16. When interviewed, he said he bought the weapon from a fellow scaffolder on a building site for £150. He had had it for about 3 years. He had never fired it because he never had any ammunition. The appellant drew attention to the fact that the barrel was cracked. When the firearm was fired under test conditions the barrel broke.
17. The appellant was of previous good character. His counsel submitted before the sentencing judge that the circumstances of his possession on this firearm could amount to exceptional circumstances which might permit the judge to suspend any sentence of imprisonment that he passed.
18. We summarise the arguments put forward by counsel for the appellants. We deal first with the two appellants who received the 5-year sentence. Mrs Lucking, for Jordan, submitted that there was no express exclusion in the statute preventing section 152 of the Powers of Criminal Courts (Sentencing) Act 2000 applying. That is the section to which we shall refer in more detail which identifies to the court factors that should be considered when a plea of guilty is entered.
19. Mrs Lucking submitted that if Parliament had intended that there should be no credit for a guilty plea it might be expected that that would have been said in terms and it was not. Mr Baur made similar submissions on behalf of Alleyne, prefacing them by submitting that the judge was wrong in not finding exceptional circumstances. He repeated the arguments which he had advanced before the judge. When the judge came to sentence Redfern, he referred to his explanation as to how he had come by this weapon. He said:

"You have said that you bought this weapon off someone three years before and when you bought it you were assured the pistol was a replica and could only fire blank ammunition and it was not fully functional as the case was cracking. You say that you had it with the intention of displaying it."

He then said he was prepared to deal with him on the basis of his explanation. The judge went on to say:

"Whilst it was your duty to ensure what it was you had, it seems to me that there is an exceptional circumstance which justifies me in reducing the sentence from 5 years' imprisonment."

He then said:

"Taking everything into account and looking at matters in one sense in the round by assessing your character and all those circumstances, it seems to me that I must pass a sentence of two and a half years' imprisonment. I can pass no less in the light of what Parliament has said should happen in such cases."

20. Mr Alexander, for Redfern, has submitted that the judge was wrong, once he had found exceptional circumstances, to restrict himself in the way he did by referring to the minimum sentence. He submits that the judge should have regarded the sentencing process as governed in the ordinary way by the guideline case of R v Avis & Ors [1998] 1 Cr App R (S) 420 and by the ordinary principles of sentencing. He says that he should not have regarded himself as in any way confined by the new minimum sentence of 5 years.
21. Mr Bleaney for the Crown submitted that in the case of Redfern, the learned judge was wrong to identify exceptional circumstances. There was nothing in the circumstances there which were in any way exceptional, and the judge was mistaken to take that view.
22. Before turning to the general submissions on the 5-year minimum sentence, we deal with the submission made by Mr Baur that the circumstances in Alleyne's case did amount to an exceptional circumstance. In our view the judge was entirely correct in deciding that the circumstances of his possession of the gun, even if true, did not amount to exceptional circumstances. We reject that submission.
23. Unlike the sentencing judge, who had extensive quotations from debates in the House of Commons and the House of Lords shown to him, we do not think that the assistance of Hansard is admissible, or required, to understand this section. It is plain and unambiguous on the face of it, and it applies whenever an individual is convicted. The contention that Parliament cannot have intended to prevent the reduction of a sentence following a guilty plea is not, in our view, correct. Parliament was plainly aware, in passing the 2003 Act, of guilty pleas and how they should be regarded. Section 152 of the Powers of Criminal Courts (Sentencing) Act, which is also contained in section 144 of the 2003 Act, not yet in force, whilst not placing the court under a duty to give a discount for a plea of guilty, requires the court to take into account the stage of the proceedings at which the offender indicated his intention to plead guilty and the circumstances in which that indication was given.
24. Even more relevantly, section 152(3) provides for minimum sentence cases following a third conviction for class A drug trafficking offences (section 110 of the Sentencing Act), and a third conviction for domestic burglary (section 111 of the Sentencing Act). Section 152(3) provides that the court is not prevented:

"After taking into account any matter referred to in section 1 of this subsection from imposing any sentence which is not less than 80 per cent of that specified in that subsection."

25. A further indication of Parliament's awareness of guilty pleas and how they are treated is to be found in Schedule 21 to the 2003 Act which indicates how a minimum term in relation to mandatory life sentences for murder should be determined. Paragraph 12 provides:

"Nothing in this schedules restricts the application of (c) Section 144 (guilty plea)."

26. The absence from section 51A of any reference to section 144 or section 152 of the Sentencing Act is plainly deliberate. The rigour of section 51A is mitigated by the possibility of exceptional circumstances being found. It is not suggested in the case of Jordan that they should have been found. We have rejected the suggestion that in Alleyne's case there should have been a finding of exceptional circumstances.
27. In the cases of Jordan and Alleyne, the sentence of 5 years' imprisonment must stand, and their appeals are dismissed.
28. In the case of Redfern, although the judge had found that exceptional circumstances were present, he felt constrained by the minimum sentence period in section 51A. The judge had been faced with a submission that because of Redfern's mitigation and exceptional circumstances as an offender, any custodial sentence could be suspended. That would have had to have been a sentence of 2 years' imprisonment or less. The judge said:

"However it does not seem to me right that I can go as far as your counsel submits, because I must take full account of this period of 5 years that Parliament has said should be the minimum period."

29. We do not think the circumstances of this case came any where near the exceptional circumstances which would have justified suspending a sentence of imprisonment. Further, we think it very doubtful that the circumstances identified by the judge, namely that Redfern believed the firearm was a replica when he bought it, could be an exceptional circumstances for the purposes of section 51A.
30. In our view, once a judge has properly identified exceptional circumstances, the sentence is at large. The minimum sentence provided in the section is a factor which the judge can take into account, as he will also take into account the guideline case of Avis and all available mitigation. This will not only involve the exceptional circumstances themselves, but also good character and a timely plea of guilty. This will only arise where there are real exceptional circumstances. These cases will be rare.
31. In Redfern's case the Attorney General has not sought to intervene. We cannot increase his sentence because we are of the view that, in reality, exceptional circumstances are not present. However, we are not persuaded that we should reduce the sentence of 2½ years' imprisonment. His appeal is also dismissed.
32. MRS LUCKING: My Lord, the answer to this may be no, but one matter arises. I do not know whether your Lordships would consider the question of perhaps certifying the question to the House of Lords on this issue?
33. THE VICE PRESIDENT: They are not much interested in matters of sentence, Mrs Lucking.
34. MRS LUCKING: No, I have observed that particular passage in Archbold and understand the difficulty therein. Indeed, where a sentence is within the judge's discretion, the House will not entertain it as a matter of importance. I simply raise the question where, given that, the question may touch upon whether the sentence is within a judge's discretion in any event.
35. THE VICE PRESIDENT: Do you have a draft question you would like us to certify?
36. MRS LUCKING: I have. Forgive me it is in manuscript. (Handed).
37. THE VICE PRESIDENT: No, Miss Lucking, we do not certify.