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
		25 September 2008

LORD JUSTICE HOOPER: I will ask Mr Justice Wilkie to give the judgment of the court.

MR JUSTICE WILKIE:

1. On 15 May 2008, in the Crown Court at Bolton, the applicant, Shaun Coutts, now aged 26, pleaded guilty to a single count of possessing an imitation firearm with intent to cause fear of violence. On 16 June 2008 he was sentenced by Her Honour Judge Kushner QC to 18 months' imprisonment. The Registrar has referred his application for leave to appeal against sentence to the full court. We have granted leave to appeal.
2. The facts briefly are as follows. At 3pm on 26 January 2008 two women, Angela Hodgkinson and Kerry Dawson, were walking down an avenue in Bolton when they heard a child shout, "Angie, Angie, tell him, he's got a gun". The appellant was standing nearby with three children aged between 10 and 14. The child looked scared. The appellant shouted verbal abuse. He put his hand down the front of his trousers and produced what appeared to be a gun. He waved it around in a threatening manner and shouted, "I've had enough of these fucking phone calls". The witnesses panicked. From a distance they thought that the gun was real and that the appellant was going to use it. He shouted, "Where are they? I'll shoot whoever it is". He walked up to Miss Dawson and waved the gun in her face. She thought that the gun looked plastic and challenged him. The appellant said, "It is real and it does fire". He went up to one of the children and pushed the gun into the child's side against his ribs. He was abusive and threatening. The child was upset and cried, shouting that he had done nothing wrong. At this point Miss Hodgkinson challenged the appellant because she thought that the gun was plastic. The police were contacted. Miss Dawson spoke to the appellant. He said that he had been receiving nuisance calls and that he had been told that there were ten lads outside his house waiting for him. He had taken the gun out for protection and then lost control. He calmed down, put the gun away and left the area.
3. The police attended the appellant's home address twenty minutes later. They searched the premises and found the gun under a duvet. It had a magazine but no pellets; it was incapable of being fired. The appellant was agitated and irate in interview, but nonetheless made admissions.
4. Victim impact statements were obtained from both Miss Dawson and Miss Hodgkinson in which they said that the incident was very frightening because the appellant appeared drunk and out of control.
5. The appellant had one previous conviction a matter of a few days prior to these events in 2007 when he was fined for being drunk and disorderly. In the pre-sentence report he said that he had been receiving threatening telephone calls which pushed him beyond the point of self-restraint. He had lost his temper when under the influence of alcohol and had taken the gun on the spur of the moment intending to frighten those who had been threatening him, although there was no suggestion that any of the people who were in fact frightened were those who he said had been threatening him or that he thought that they were. By the time of sentence the appellant had returned to live with his mother and stepfather. He was in stable employment. There were seven character references produced before the court which we have seen and read. They included a letter from his then employers indicating that, whatever the outcome, they would guarantee his return to employment.
6. In passing sentence the judge described the appellant as a good father and, apart from one conviction, of good character. He was a good worker who was well thought of by his family and friends. Due to circumstances, no doubt including the influence of alcohol, he had behaved totally out of character. The judge accepted that there had been a lot of provocation but indicated that the appellant could have called for assistance in other ways. She said that she was faced with this difficulty: she had to show the public and anybody else who may think of taking an imitation or a real gun out in public that the courts took a very dim view of such an action. If she had to sentence on just what was necessary for the appellant, there would be no problem; but the offence has a public face more than other offences such as burglary, and therefore she had to impose an immediate custodial sentence. The judge said that she would, however, keep the sentence as short as she possibly could. She imposed a sentence of 18 months' imprisonment.
7. Miss Simmonds, who has addressed us persuasively and cogently this morning, takes as her main point the fact that the sentence passed by the judge, which was said to be as short as she possibly could make it, is in fact out of line with a number of reported authorities involving the brandishing of an imitation firearm with intent to cause fear of violence. She has referred us to the guideline case of R v Avis [1998] 2 Cr App R(S) 178, when the first of a series of questions posed by the Lord Chief Justice was: What sort of weapon was involved? Genuine firearms were more dangerous than imitation firearms. Implicit in that question was the suggestion that sentences for offences where imitation firearms were involved would be less than those where real firearms were involved. That is supported by a series of cases brought together by this court in R v James Gilman [2006] 2 Cr App R(S) 58, in which a sentence of 18 months' imprisonment was reduced to one of nine months' imprisonment where the use was of an imitation firearm. In that case reference was made to a number of other authorities: R v Steele [1999] 1 Cr App R(S) 369; R v Thompson [1999] 2 Cr App R(S) 292; and R v Poggiani [2001] 2 Cr App R(S) 64. In each case sentences of twelve months or more were reduced to sentences of nine or six or in one case four months.
8. In our judgment, having regard to the trend in sentencing where imitation firearms are involved, the sentence of 18 months' imprisonment, giving full credit for a guilty plea, which necessarily involves a starting point of two years and three months' imprisonment, was manifestly excessive. In our judgment in this case there were certain aggravating features. Those who were threatened were young children; one was aged only 10. Those who were threatened were in a public space going about their lawful business. They had not been involved in any incident which might have provoked the appellant. He was drunk and therefore to that extent manifestly out of control, which must have added to the great sense of fear and foreboding when he acted in the way that he did.
9. In all those circumstances we are unable to reduce the sentence as low as Miss Simmonds has suggested we might. In our judgment, however, the appropriate starting sentence for this offence after a trial would have been one of 18 months' imprisonment. Giving him full credit for his timely guilty plea, that would have resulted in a sentence of 12 months' imprisonment. To this extent the appeal succeeds. We quash the sentence of 18 months' imprisonment and for it we substitute a sentence of twelve months' imprisonment.

__________________________________