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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Gambrah, R v [2008] EWCA Crim 2786 (11 November 2008)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/2786.html
Cite as: [2008] EWCA Crim 2786, [2009] 2 Cr App Rep (S) 16, [2009] 2 Cr App R (S) 16
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CRIMINAL DIVISION
Strand London, WC2 |
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B e f o r e :
MR JUSTICE BEATSON
HIS HONOUR JUDGE JACOBS
(sitting as a judge of the Court of Appeal, Criminal Division)
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| R E G I N A | ||
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| FRANK GAMBRAH |
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- JUDGE JACOBS: This an appeal by Frank Kwame Gambrah. On 25th June 2008 at the Crown Court at Croydon, he was convicted of an offence of possessing a firearm when prohibited, contrary to section 21(1) of the Firearms Act 1968, and was sentenced to a term of 3 years' imprisonment. It was directed that the 131 days spent on remand should count towards the sentence, and there was an order for disposal or forfeiture of the firearm under section 52 of the Firearms Act 1968.
- He appeals against that sentence with leave of the single judge.
- The appellant had been involved in a relationship with a woman called Ms Aggudey. In July 2007 he was visiting her home two or three days a week, and at that time asked her if he might leave some of his belongings at her home whilst he went abroad to Ghana. She agreed to his request and he left a box, which was stored in a cupboard under the stairs. Ms Aggudey claimed to be unaware of the contents of the box.
- Ms Aggudey discovered what was in the box when it was disturbed during some home repairs, and after consulting a friend she contacted the police who removed the gun on 6th August 2007. It was examined by firearms officers and found to be an Armi Jager AP74 self-loading rifle, which had a used appearance. The serial number had been removed. There was no cartridge mechanism with it and when the gun was fired for test purposes, it did not feed or reject ammunition as part of the firing process. The appellant's fingerprint was found on the gun.
- The appellant's case, both in interview and at trial, denied any connection with the gun and he could not explain how the partial fingerprint came to be on the gun. His case was that his ex-partner had acted out of vindictiveness because he had rejected her.
- The appellant is now 31 years old. He has previous convictions. The judge was particularly concerned by the previous sentence of 6 years' imprisonment for robbery. He said he could see no legitimate use for the gun, but took into account that it was difficult to fire the weapon, although it could be fired, and there was no ammunition with the weapon.
- Consideration was given to the leading case of R v Avis [1998] 1 Cr App R(S) 240 and the sentence of 3 years' imprisonment was passed. In particular, the judge took into account the following principles, which were set out in the case of Avis. (1) What sort of a weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. (2) What, if any, use has been made of the firearm? (3) With what intention, if any, did the defendant possess or use the firearm? (4) What is the defendant's record? The seriousness of any firearm offence is inevitably increased if the offender has an established record of committing firearms offences or crimes of violence.
- Mr Hynes has also taken us through a series of cases on this particular section. The sentencing provisions for this offence were considered in detail in the case of R v Norman Hill [1999] 2 Cr App R(S) 388. The starting point is that the maximum sentence for this offence is one of 5 years' imprisonment. That case was also a trial and involved the discovery at the appellant's home of a double-barrelled shotgun, a .22 rifle and various cartridges.
- This court concluded that whilst sections 1, 2 and 21 of the Firearms Act 1968 carried the same maximum penalty, offences under section 21 must be more grave, as there would be a greater public concern about the possession of such a weapon by a former prisoner, who was specifically debarred by statute from possessing it.
- The court then went on to examine that appellant's previous convictions, which included only one involving the use or threat of violence, and also concluded there was nothing to suggest the appellant intended to use the rifle or shotgun for an illicit purpose. The court concluded that a sentence of 18 months' imprisonment would have sufficed.
- That case has subsequently been referred to in number of other cases, namely R v Brizzi [2000] 1 Cr App R (S) 126; R v Corrish [2001] 1 Cr App R 126 and, most recently, R v Gavin Friston [2007] EWCA Crim 2472.
- In the case of R v Brizzi the appellant was convicted after a trial of possessing a semi-automatic pistol as a prohibited weapon. He was seen by police officers apparently concealing the object in a hedge. The gun would not fire properly because it was rusty and dirty, and no ammunition had been found. A sentence of 2½ years' imprisonment was substituted for the original 4 years.
- R v Corrish was a guilty plea, but there were aggravating circumstances. The appellant and another man arrived at the doorstep of a house carrying a .22 air rifle, with the barrel wrapped in a plastic bag. They hammered on the door and left shortly afterwards. At the time the appellant was on licence and was returned to prison to serve an outstanding balance of 254 days of an earlier sentence. The court reduced his sentence for the firearms offence from 2½ years' imprisonment to 18 months' imprisonment, but took into account the principle of totality as part of that reduction.
- R v Friston was a guilty plea to the possession of two carbon dioxide capsule-powered air pistols with relatively low muzzle energy and a box of matching pellets. He had a previous conviction for impeding the apprehension of an offender, by throwing the offender's handgun from a car window during a getaway chase from a robbery, and also a previous offence for possessing a firearm as a prohibited person some 15 years ago. The court reduced the total sentence to one of 3 years' imprisonment.
- Finally, we have considered the case of R v Anthony Holmes [1999] 2 Cr App R(S) 383. This was a more serious case. It was a guilty plea to the possession of a shortened, loaded shotgun as a prohibited person. The appellant had acquired it with the intention of committing suicide. The appellant had no previous convictions for offences involving the use of or threat of violence, but he did have a previous conviction for supplying drugs. A sentence of 2½ years' imprisonment was upheld.
- In deciding sentence, therefore, the court takes into account the nature of the weapon, how readily it can be fired, the presence of any ammunition and any previous convictions for previous possession of such a weapon.
- We have considered all the factors in this case and have come to the conclusion that the sentence passed in this case was manifestly excessive, in the light of all the authorities and the limited use to which this weapon could be put. For those reasons we allow the appeal to the extent that the sentence of 3 years' imprisonment is quashed and a sentence of 27 months' immediate imprisonment is substituted. The time to be served, the 131 days spent on remand, will still count.
- LORD JUSTICE MOORE-BICK: Thank you very much, Mr Hynes.