England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		16th May 2008

1. MR JUSTICE DAVID CLARKE: In this appeal, brought by leave of the single judge, the court is called upon to consider the mandatory 5-year minimum sentence for possession of a firearm, prescribed by section 51A of the Firearms Act 1968. The judge in this case, His Honour Judge Fenn, passed that minimum sentence following a Newton hearing, in which he substantially accepted the factual basis of plea advanced by the appellant. The submission for the appellant in essence is that having done so, the judge's failure to find that those facts amounted to exceptional circumstances within the meaning of subsection (2) was wrong and unreasonable.
2. The facts which the judge found were essentially those asserted by the appellant when first interviewed by the police and were as follows. We take them from a summary of the judge's ruling in the Newton hearing. On a date in early January 2007 the appellant, who is aged 26, went with a friend to the home of another friend, Mr Wheatley, for a social evening. Mr Wheatley's wife and family were out making arrangements for a family holiday to Cornwall that they were about to start.
3. The appellant that evening was not drinking because he was driving, but his two friends drank alcohol. During the evening the appellant took the householder's dog out for a walk. Whilst passing nearby scrapyards, he saw a plastic bag on the ground near to the fencing. He disturbed the bag and found that it contained a sawn-off shotgun and some cartridges, 13 in number. In evidence in the Newton hearing he acknowledged that this was not the sort of weapon that a farmer might use to shot pheasant, but the sort of weapon used by criminals.
4. Notwithstanding the appellant's recognition that it was a weapon of the type that might be used by criminals, and notwithstanding that he had his mobile phone with him, he did not contact the police but he took the bag containing the gun and ammunition back to his friend's home. His friend made it quite clear that he did not want the item in his house. The three men agreed that the appellant would leave with the item, would drop the other friend, Mr Greenley, off at house and would then go to Clacton police station and hand in the gun.
5. However, what the appellant did instead was to drop his friend off, not to go to the police station, but to return to Mr Wheatley's home, by which time Mr Wheatley and his family had set off for Cornwall. The appellant went to Mr Wheatley's garage or workshop, which was not locked, and left the gun in a Volkswagen camper van located in those premises.
6. At 1.30 in the morning on 6th January — and it is not clear how many days later that was — police officers attending Mr Wheatley's home were checking through the workshop when the gun was seen lying on top of a plastic bag in the camper van, not concealed in any way. The bag still contained 13 cartridges.
7. The gun was examined. It was found to be in fairly poor condition, but it was in working order. One barrel was capable of firing. Once the firing mechanism had been cleaned, the other could also be fired. The 13 cartridges were capable of being fired.
8. Mr Wheatley, at whose premises the gun had been found, was arrested on his return from holiday and denied all knowledge of the gun. He then contacted the appellant. The appellant approached the police and gave his account of events. That account, as we have indicated, is the account which the judge accepted was the basis on which he would proceed.
9. It is to be noticed that it was the judge himself who directed this Newton hearing, the Crown having indicated at an earlier hearing that it did not challenge that basis of plea. In our view, the judge was entirely right. This was a good example of the court following the guidance of this court in R v Underwood [2005] 1 Cr App R (S) 90 and making arrangements for a proper resolution of the factual basis for sentence. This was a serious and important case. The appellant's account could well be considered a surprisingly improbable one. But having heard the evidence, the judge accepted the substance of it as the factual basis for his sentence.
10. The appellant is 26, as we have indicated. He did not have a substantial criminal record, but in 2002 at the age of 20 he had received a conditional discharge for possession of a bladed article and the previous year he had served a short custodial sentence for driving whilst disqualified, following the conviction for driving with excess alcohol.
11. There was a favourable pre-sentence report. The appellant had a stable background. He was in regular employment. He had a young son by an earlier relationship, whom he saw regularly. The author of the report considered that his poor problem-solving skills had contributed to the offence, in that it was a bad decision not to proceed directly to the police station or to notify the police. The author of the report indicated the community sentences that would be available.
12. The judge, of course, proceeded in accordance with the leading decision of this court on the question of exceptional circumstances, that being R v Rehman and others [2006] 1 Cr App R (S) 77, at page 404. His sentencing remarks were lengthy and well structured. He had careful regard to the underlying reasons for the legislation prescribing the mandatory minimum term, as set out in detail by the Lord Woolf CJ in his judgment in Rehman.
13. The judge also had regard to the factual circumstances of the two cases in Rehman, that is Rehman himself and Wood, in one of which exceptional circumstances were found and in the other they were not. He cited the particular passage relied on by counsel before him and renewed before us by Miss Akudolu, where Lord Woolf said this:

"There will be cases where there is one single striking feature, which relates either to the offence or the offender, which causes that case to fall within the requirement of exceptional circumstances. There can be other cases where no single factor by itself will amount to exceptional circumstances, but the collective impact of all the relevant circumstances truly makes the case exceptional."

14. He drew attention to the point made by Miss Akudolu that this, unlike Rehman, is a case in which there is a single striking feature which justifies a finding of exceptional circumstances, namely that this was a weapon which was innocently found and which he failed to hand in, rather than having come into possession of it in some nefarious and criminal manner. He also reminded himself that that was not the only basis upon which exceptional circumstances were urged, but that there were other factors and he was not limited to that in reaching his decision.
15. At the heart of the learned judge's sentencing remarks we see the following passage which should in our judgment be quoted. He said this at page 7C:

"In the light of those cases I consider the various features in yours. The first and most significant feature is that this was a sawn-off shotgun; a weapon that can have no lawful purpose whatsoever."

He referred then to the evidence given and said:

"... it is the sort of weapon that criminals use.

Secondly, this was a weapon that did work and, indeed, the evidence was that it had been fired in the past. Third, this was a weapon which had ammunition with it, thirteen 12 bore cartridges which were in working order and which the gun was capable of firing.

Next, others sought to persuade you to hand it in to the police and you had the opportunity to hand it in to the police when you dropped your friend off at his address only a matter of a few hundred yards away from the police station. However, you did not take that opportunity. It has been put on your behalf that that was foolishness, stupidity on your behalf on that occasion.

Next, you left the gun and the ammunition in what you knew was an insecure location and in which, as I have already indicated, the evidence suggests that somebody did indeed find it and move it between your leaving it there and the police finding it. It seems to me that you must have realised, given your acknowledgement of what sort of weapon this was and your knowledge that you were leaving it in an insecure location and in the light of the efforts of your friends to persuade you to hand it in to the police, that what you were doing in leaving that weapon there was wrong.

Finally, of course, you are not somebody of hitherto impeccable character, you have the previous convictions to which I have already referred, including a conviction for possession of a bladed article, a weapon-related offence.

I have had to consider very carefully whether the matters that have been drawn to my attention do in fact amount to exceptional circumstances. As Judge Fish said in the case of Wood, there is of course much mitigation, which is not quite the same as exceptional circumstances."

16. The judge then referred to the other mitigation relied on then, as now, and concluded that these did not amount, in combination or individually, to the exceptional circumstances required.
17. Miss Akudolu, in excellent oral and written submissions, has submitted that the judge should have found exceptional circumstances in this case. It is submitted that in the light of the way in which this case proceeded and the Newton hearing was directed, not to find exceptional circumstances is inconsistent with the purpose for which the Newton hearing was held. She argues that, implicitly at least, the Newton hearing was for the purpose of establishing whether exceptional circumstances existed, and thus having found in the appellant's favour it was unreasonable not to go on to find exceptional circumstances.
18. The submission, as we say, has been well presented and well argued, but we cannot accept it. Crucial to the decision in this case are two particular factors. Firstly, the appellant left the items in a place and in circumstances which gave rise to a serious risk of them falling into the wrong hands. Secondly, the nature of the weapon itself, a sawn-off or shortened shotgun, adapted therefore and particularly suitable for use in serious crime.
19. Miss Akudolu has very helpfully referred us to R v Harrison [2006] 2 Cr App R (S) 56, at page 352, in which a mandatory minimum of 5 years imposed in the lower court was replaced in this court by a finding of exceptional circumstances and a sentence of 2 years' imprisonment. In that case the appellant had been stopped by the police whilst driving his car. He gave a positive breath test and was arrested for driving with excess alcohol. In his coat pocket officers found a gun and magazine containing live ammunition. The gun was a converted handgun of which the barrel was full of wax, but when the wax was removed the weapon was found to be in working order.
20. The appellant's explanation, which was accepted, was that the gun had belonged to the boyfriend of his niece and had been left at his house and that he had taken the gun at his niece's request, intending to throw it in the lake and was on his way to doing so when he was stopped. In fact what thereafter occurred was that he was released on bail. Whilst on bail, he was stabbed by the niece's boyfriend, the man whose gun he had said it was, which led some credence to the account and no doubt formed part of the reasoning for accepting it.
21. In our judgment, that case does illustrate a case with exceptional circumstances. That man was on his way to disposing of it in the lake, rather than on his way to handing it in at the police station. It was so accepted and on those facts the 2-year sentence remained a merited sentence, but there were exceptional circumstances to bring the case below the mandatory minimum.
22. The present case is factually different. The appellant in this case was not on his way to hand it in. On the contrary, he had left it in a place from which it could easily have fallen into the wrong hands, which is precisely the reason why the mandatory minimum sentence exists, as a matter of public policy, to protect the public from criminal use of firearms.
23. We should not be taken to accept the underlying submission here that on a different view of the facts the sentence would still have been the mandatory minimum of 5 years. In our judgment, for possession of a weapon of this sort and ammunition obtained in a more reprehensible manner, linking the offender more closely to criminal activity, a very significantly longer sentence than 5 years would have been justified and would have been imposed.
24. In all those circumstances, well argued those this appeal has been, we do not find merit in it. We recognise the harshness of this provision and its harshness in the case of this particular appellant, but we are unable to find a justification for avoiding that harsh consequence.
25. The appeal is therefore dismissed.
26. Thank you very much, Miss Akudolu.
27. MISS AKUDOLU: I am grateful to your Lordships.
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