England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		15 July 2005

Friday, 15 July 2005

MR JUSTICE HEDLEY:

1. This is an appeal with leave of the single judge against a sentence of five years' imprisonment imposed by His Honour Judge Winstanley sitting in the Crown Court at Wood Green on 11 March 2005 following the appellant's plea of guilty to an offence of possession of a prohibited weapon contrary to section 51A of the Firearms Act 1968.
2. The sentence of five years' imprisonment imposed was in fact the statutory minimum for the offence to which the appellant had pleaded guilty. The only question in this case is whether there exist exceptional circumstances relating to the offence or the offender which would justify not imposing the minimum term. As the judge conceived a wholly favourable view of the appellant, it is right that we should make that assessment on the same factual basis as that taken by the judge, who had after all presided over a trial on unrelated matters which had led to the appellant's acquittal.
3. The relevant circumstances are these. The appellant was essentially an honest and hard-working citizen. From time to time he used cannabis. There is no doubt that the firearm was a self-contained, gas-cartridge revolver in working order and capable of discharging pellets. However, no ammunition was found at the time of the search. As the gun was found in the appellant's absence on holiday during a search of his home under the Misuse of Drugs Act 1971, it may be assumed that a very thorough search had taken place.
4. The weapon had been originally acquired by a friend of the appellant in 1996. At that stage possession of this gun was entirely lawful. The appellant came into possession of it in 1999 or 2000, at which stage the gun remained in entirely lawful possession. He had intended that if it was to be used, it was to be used for sporting purposes in a gun club or some similar place.
5. In January 2004 the weapon became unlawful. Under the amended legislation a period of grace was permitted until the end of April 2004 to allow holders of now prohibited weapons to dispose of them or to apply for a licence for their continued possession.
6. At the material time, on the specific finding of the judge, the appellant was suffering from depression and knew nothing of the change of legislation. There is no evidence, either before us or that was before the judge, to suggest that the appellant had access to any specific publicity on the subject.
7. The question of exceptional circumstances is always a difficult one. In statutory provisions like these it is clearly intended that the conventional approach of English sentencing law, having regard principally to the culpability of an offender, is postponed to the greater public good of simply ensuring that weapons such as this are not in circulation. It is therefore inevitable that the court must approach with caution the question of exceptional circumstances. Our attention has helpfully been drawn to R v Jordan, Alleyne and Redfern (14.12.04), a decision of this court presided over by the Vice President. The judgment of the court was given by Douglas Brown J. Having reviewed the facts, they indicated that in their view the facts as appeared in those cases were not capable of amounting to exceptional circumstances. Indeed, in the case of Redfern, where the judge had found exceptional circumstances, the court, whilst not interfering with that finding, certainly cast some doubt upon it. The approach of the court is to be found in paragraph 30 of the judgment which reads:

"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."

It seems to us that there is sound public policy which supports the approach to a relatively narrow construction of what amounts to exceptional circumstances.

8. In this case it seems to us that the matters that could be identified as exceptional circumstances are these. First, the weapon was lawfully in the appellant's possession for a significant period of time. Secondly, the appellant is assisted by a specific finding that during the period of grace he was in a state of depression and was not aware of what had happened. Thirdly, it seems to us that into the equation comes the nature of the weapon, which is closely linked to the fact that it was originally a perfectly lawful weapon. What made the weapon unlawful was its semi-automatic nature in terms of being able to discharge airgun pellets.
9. The question which has exercised us is whether those matters taken together are capable of amounting to exceptional circumstances. In his lengthy sentencing remarks the judge was clearly troubled by the case but felt unable at the end of the day to conclude that these amounted to exceptional circumstances.
10. Having given this case our closest and most anxious attention, we find that exceptional circumstances do exist in the form of those narrated in this judgment. It is important to make clear that no one of those circumstances is capable by itself of constituting an exceptional circumstance. It is also important to point out that there were generous findings made in favour of the appellant by the trial judge which are not seen in very many cases. It is the combination of all those factors in this case that enables us to say that this is one of those rare cases where the court is justified in finding the exceptional circumstances contended for by the appellant. We recognise that these cases will be rare. We are anxious that the particular factors that we have identified in this case should not be seen in isolation, for they present an unusual and cumulative picture.
11. It is vital to remember that the policy of the section is to take these weapons out of circulation so that not only those who possess them may not use them, but they may not be acquired (knowingly or unknowingly) from such possessors by those willing to use them. Parliament had re-balanced the public good against the conventional approach to sentences.
12. Having found exceptional circumstances to exist, sentence becomes at large. The court must have in mind the guideline case of R v Avis and pass an appropriate sentence. In our view the material factors to be taken into account are that there was an early guilty plea; that no ammunition was found to exist at any stage; that there is and never has been any evidence of criminal intent in the appellant, who is a man without previous convictions. We are entitled to take into consideration the nature of the weapon. Those are all significant matters of mitigation. But against that the court is bound to balance the public policy that is inherent within section 51A itself. It would not be right, in our view, for the court simply to treat this as though it were an Avis case without regard to the policy that lies behind the section. That is clearly set out in Jordan as a legitimate consideration.
13. In those circumstances part of the sentence is designed to reflect public policy that these weapons shall simply not be in existence, whatever the mitigation may be. Balancing all those matters, we have come to the conclusion that the proper sentence in this case is one of two-and-a-half years' imprisonment. Accordingly, having made a finding of exceptional circumstances, we quash the sentence that was originally passed and substitute for it a sentence of two-and-a-half years' imprisonment. To that extent this appeal is allowed.