England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		11th October 2007

1. SIR IGOR JUDGE: Martin Crispin is now approaching 50 years of age. He is a man effectively of good character.
2. On 19th October 2006 he pleaded guilty at Leeds Crown Court to 14 counts charging offences under the Firearms Act 1968. Mr Recorder John Lodge passed sentence on him on 16th March 2007, the total sentence was 8 years' imprisonment. He appeals against that sentence with the leave of the Single Judge.
3. The facts are rather alarming. In June 2006 the police arrested a man called Hargreaves for a racially aggravated offence, under section 4 of the Public Order Act 1986. So far so ordinary. At Hargreaves' home they found three loaded firearms: two were shortened double-barrelled shotguns and the third, an 8 mm Army pistol. They also found additional ammunition. Police enquiries led them, on 27th June, to the home of the appellant: the appellant had supplied Hargreaves with those guns. The police made a forced entry and, as Mr Morris, who has appeared on behalf of the appellant at Leeds Crown Court and before us and who has handled a difficult case with great skill and forensic care accepted, the police found an armoury in the appellant's loft. This armoury consisted of four rifles, two shotguns and a shotgun with a barrel and stock shortened to less then 60 centimetres. Every one of the weapons was in good working order. Two pistols had been manufactured to fire blanks, but they had been converted to fire live rounds. None of the weapons found was actually loaded but a great amount of ammunition suitable for use in the firearms was found: something over 1000 rounds, most of which was dreadful ammunition which explodes on impact. In addition, the officers found an assorted 12 gage cartridges and 5 flare cartridges.
4. When the officers entered the appellant's home they also found, on the living room floor, an improvised fragmentation and incendiary device. That was destroyed by experts in a controlled explosion.
5. The appellant gave an explanation about this particular object, telling the arresting officers that it was a gas cylinder to which ball bearings and a fuse had been attached. He said he made it for use on bomb fire night. The police also found a large quantity of military tools and paraphernalia including camouflage clothing, face paint, ration packs, knives and a tent. In the loft there was a gun cleaning kit, a rifle scope and a telescopic sight. In the bedroom they found knives, a sharper, an axe, a holster and other military products. In the living room there were a machete, knives and a map of the Leon area of France. The appellant had told his friend, Mr Hargreaves, that it was from this part of Europe that at least some of these items had been acquired. An expert who looked at the material on behalf of the prosecution believed that all the ammunition appeared to have come from the same source.
6. The appellant was interviewed on five occasions. In relation to the firearms, he made no reply and he offered no explanation for his possession of these dangerous weapons. He possessed no firearms certificate.
7. Counts 1 to 4 and 6 to 8 charged the appellant with possession of firearms and shotguns without a certificate contrary to section 1(1)(a) of the 1968 Act. Count 5 charged him with possession of a prohibited shortened weapon, contrary section 5(1)(aba) of the 1968 Act. Counts 9 to 14 all concerned the possession of ammunition contrary to section 5(1)A(f) and section 1(1)B of the Act. By virtue of section 51A of the 1968 Act, the conviction of the offence in count 5 carried with it a minimum sentence of 5 years' imprisonment. The relevant statutory provision reads:

"The court shall impose an appropriate custodial sentence order for detention for a term of at least the required minimum term ... unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so."

By section 51A(5), the required minimum term in relation to and offender aged 18 or over at the time when the offence was committed is 5 years' imprisonment.

8. The judge imposed a sentence of 8 years' imprisonment on count 5. In relation to counts 1 to 4, 3 years' imprisonment concurrent, on counts 6, 7 and 8, 3 years' imprisonment concurrent, counts 9 to 11, 5 years' imprisonment concurrent, and counts 12, 13 and 14, 3 years' imprisonment concurrent. The total sentence was 8 years' imprisonment. The 260 days spent in custody on remand were ordered to count towards the sentence.
9. The appellant was examined by a consultant forensic psychiatrist. His report was placed before the sentencing judge. The psychiatrist could not elicit any evidence of potentially dangerous fantasies and there did not appear to have been any problems with the appellant's mental health in the past. There was no question as to his mental stability. In the absence of any such condition, or conditions similar to mental illness or personality disorder and the like, the psychiatrist was not in a position to make any predictions as to future dangerousness or any other matter. That is not entirely surprising because, as the psychiatrist put it, he had to rely entirely on the material he was able to obtain in interview, and therefore could not realistically offer a measured opinion whether the appellant represented a public danger or not.
10. We have considered a number of features of this case, addressing some of the issues raised by the Court in R v Avis [1998] 2 Cr App R(S) 178. First, the firearms found in the appellant's possession were genuine, lethal firearms. The requisite ammunition was immediately available. The ammunition was of a particularly destructive type, designed to explode and expand on impact. Second, they had been collected over a period of time. This collection suggests that the appellant was obsessed not merely with unlawful possession of firearms, but with all the paraphernalia associated with the practical use of firearms, in particular, camouflage clothing and survival equipment. Third, there is no evidence that direct use was made of any of the firearms by the appellant. However, in relation to his intention and the risk of use, if not by him but by others, there are some further worrying features. The first is the evidence, and on this issue it has not been contradicted, that it was indeed true that Hargreaves had acquired the ghastly weapons and ammunition in his possession from the appellant. The precise circumstances are unknown. The second is that the police found the home-made explosive device in the appellant's living room. It seems clear that the appellant was prepared to allow lethal weapons to leave his home and to get into the hands of another or others over whom he had no control. It is true, as Mr Morris has pointed out, that Hargreaves was one of his closest friends and, by implication that he had no reason to believe that Hargreaves would misuse the weapons that he bought or obtained from the appellant. That said, we cannot think of any circumstances in which a sawn-off shotgun can have any legitimate use. Significantly too the possession of the weapons in Hargreaves' hands was never properly explained by Hargreaves or the appellant, and the appellant himself never offered any proper explanation at the time when he was arrested to explain why he kept these weapons in his home.
11. The final consideration in relation to the guidance provided in Avis is this: the appellant was not charged with an offence of possession with any particular intent, no particular intent was proved. He stood to be sentenced for possession only of the weapons found in his possession. That said, we cannot really understand how it came about that he was charged in the way that he was, and we are troubled by what appears to have been a significant undercharging. We shall direct that a transcript of this judgment should be sent to the senior presiding judge so he can decide whatever steps are appropriate to be taken.
12. We have considered the observations about section 51A of the 1968 Act made by Lord Woolf CJ in R v Rehman and Wood [2006] 1 Cr App R(S) 77. In that appeal the Court was directing its attention largely to the way in which the words "exceptional circumstances" as they appear in section 51A(2) should be construed. We are not concerned here with any exceptional circumstances which would begin to justify a sentence that would be less than the minimum term required by section 51A(2). No such circumstances are present. Lord Woolf suggested that the policy of the statute.

"...was to treat the offence as requiring a minimum term unless there were exceptional circumstances, not necessarily because the offender would be a danger in the future, but to send out the deterrent message to which we have already referred. The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would be a danger to the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section refers."

13. We shall add very few words. At least one of the offences to which the appellant pleaded guilty attracted the minimum provisions of section 51A(2) of the Act. In fact he was in possession of a large number of dangerous weapons in addition to the weapon which attracted that minimum sentence in the circumstances alleged in the indictment. For one offence alone a minimum sentence of 5 years' imprisonment was required. This sentence could have been structured by the learned Recorder, so that it could have been consecutive, with the other sentences on the other counts, but he decided to make the sentences concurrent. He then had to consider the totality. He gave the appellant full credit for his guilty plea. He was entitled to that credit notwithstanding that he was caught absolutely red-handed. That said, the submission on his behalf is that the total in the result was -- and Mr Morris put this with great care -- "too long, not by much but by enough to justify the interference of this Court".
14. Our conclusion is this. The message from this Court is absolutely unequivocal: gun crime is -- and we use the words quite deliberately -- a contemporary curse. The unexplained unlawful possession of this kind of weapon and more than one of this kind of weapon, even if they are not actually used or about to be used, must attract and will attract severe deterrent sentences.
15. We have come to the conclusion that there is no ground whatever for interfering with the sentence imposed on this appellant by the Recorder. In those circumstances this appeal will be dismissed.
16. MR MORRIS: My Lord, I think you referred to Mr Recorder Lodge QC, there are two Recorder Lodges in Leeds. I would hate credit to be given for getting it right to go to the wrong one. This was Mr Recorder John Lodge.
17. SIR IGOR JUDGE: Thank you very much indeed. The transcript will be amended accordingly.