England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Monday, 9th February 2009

1. MR JUSTICE CALVERT-SMITH: On 13th October 2008 at Northampton Crown Court this appellant pleaded guilty to possession of a firearm with intent to cause fear of violence. He was sentenced to 7 years' imprisonment by the learned judge, His Honour Judge Bray, with a direction under the appropriate section that 209 days already spent on remand should count towards that sentence. There were three other counts on the indictment, common assault, damaging property and intimidation of a witness. They were all left on the file on the usual terms following a plea of guilty to the much more serious offence. However, as will become clear when we rehearse the facts, those three charges have a relevance to this appeal and sentence. He appeals against the sentence with the leave of the single judge.
2. The appellant was married to the complainant in the assault and intimidation charges and the victim of the count to which this appellant pleaded guilty. The marriage had deteriorated and the two had separated. We were informed by Mr Underwood who has represented him before us that there had been a period of reconciliation between the allegations of counts 1 to 3 and the allegation in count 4 to which he pleaded guilty. He further informed us that the immediate cause of dispute between the two was an allegation by the appellant that his wife was having an affair with another man and indeed, the car the subject of a criminal damage charge actually belonged to the other man.
3. Against that background of a marriage that had apparently failed, had led to the allegations of the crime, been patched up to some extent and then apparently failed again, on 14th March 2008 at about 6.30 in the evening the victim was at home with her two sons, her elder son's partner and a three day old grandson when the appellant arrived at the home unannounced and let himself in. He stayed for about 10 minutes saying that he wanted to see the newly born baby. Not much more than 3 hours later he returned to the house. He had by this time armed himself with a gun which he had loaded. He let himself in again through the front door. At this time the victim was with friends of hers, no doubt in the living room but decided to go into the kitchen with the appellant. The two started to argue and during the argument the appellant produced what the victim described as a revolver-type gun about six inches long, raised it, pointed it at her and then raised it a little further and fired it above her head, causing a bullet hole in the wall behind her. Of course the victim was terrified and ran to her friends in the front room. Those friends persuaded him to leave the house and there was no further violence. The police were immediately called but before they did arrive the appellant was seen to be loitering outside the house. He was arrested nearby. In interview he denied having a gun with him but admitted that he had had one earlier whilst shooting rabbits.
4. As we have said, he pleaded guilty in due course, although not at the first opportunity, to this offence albeit that before the actual plea was entered he was apparently in negotiations as to a plea of that kind. He was perhaps fortunate that at a previous hearing the judge then presiding over the trial, who was not the eventual trial judge, indicated that, in his view, the other counts should not be proceeded with.
5. The appellant is not a man of good character. He has been before the courts on many, many occasions since 1978, he now being some 45 years old. Most of the offences are acquisitive offences of burglary, theft, the taking of other people's motorcars and he has served, albeit some time ago (1985), a sentence of 4 years' imprisonment for a series of burglaries and a related offence. In 1990, at Northampton Crown Court he was sentenced to 2 years' imprisonment for a burglary and theft at a dwelling and to 6 months' imprisonment consecutive for possessing a firearm when a prohibited person, prohibited by reason of his previous conviction. For that he received 6 months' imprisonment consecutive and the normal order of forfeiture. Since then, it is fair to say that he had remained pretty much trouble free; there being a single conviction for driving a motor vehicle with excess alcohol in 2001.
6. The judge in passing sentence said among other things:

"The incident must be seen in the context of the fact that you had already been charged with assault and intimidation against the victim. Despite that, you went round to her house in the evening when in drink... You pointed the gun at her and then fired it above her head. Fortunately, no-one was injured, but there was a real danger caused by your actions particularly as you were in drink. The victim must have been absolutely terrified by what took place."

He went on to say that the matter was aggravated by the previous conviction of firearm whilst a prohibited person:

"The possession and use of firearms is of great concern to the public at the present time. I would be failing in my duty if I were not to pass a sentence of length here."

This court entirely endorses those remarks. The only question is whether a sentence of 7 years' imprisonment was perhaps too long in the circumstances, bearing in mind the maximum sentence for this offence, which is 10 years' imprisonment.

7. The leading authority on sentence in this class of case is still the case of R v Avis & Ors [1998] 2 Cr App R(S) 178, in which the then Lord Bingham CJ laid down a number of guidelines for offences under section 16A of the Firearms Act but the other sections of the Firearms Act as well:

"The appropriate level of sentence for a firearms offence, as for any other offence, will depend on all the facts and circumstances relevant to the offence and the offender, and it would be wrong for this court to seek to prescribe unduly restrictive sentencing guidelines. It will, however, usually be appropriate for the sentencing court to ask itself a series of questions:

(1) What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use.

(2) What (if any) use has been made of the firearm? It is necessary for the court, as with any other offence, to take account of all circumstances surrounding any use made of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence is likely to be.

(3) With what intention (if any) did the defendant possess or use the firearm? Generally speaking, the most serious offences under the Act are those which require proof of a specific criminal intent (to endanger life, to cause fear of violence, to resist arrest, to commit an indictable offence). The more serious the act intended, the more serious the offence.

(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."

8. Those four questions receive answers which in the main are adverse to this appellant. This was a genuine firearm; it was loaded; it was used to shoot above the head of a defenceless woman in her own kitchen in the course of a matrimonial dispute. It was clearly premeditated because the appellant had gone to the house in order to have a row. He had taken with him a loaded gun. It is inconceivable that he would have done that had he not had some kind of intention to use it if things had turned nasty. He clearly admitted, and could do no less, than his intention was to cause fear of violence and within the spectrum of the offences under section 16A this is a very, very serious one because he did actually use it and he pointed it at the victim before actually firing.
9. What is his record? The truth is there are no offences of actual violence on this appellant's record albeit that had there been a trial there might perhaps have been one in this case. However, he does have the offence of unlawful possession of a firearm within the prohibited time from his conviction of a serious offence and so he falls within that aggravating category as well.
10. Looking at the cases themselves of the appellants in Avis & Ors, it seems to us that the appropriate sentence level was 8 years' imprisonment. Of course he was entitled to some reduction for his plea and we feel that 25 per cent was the appropriate figure. Accordingly, we do feel that the actual sentence passed was by some 12 months too long and we propose to allow the appeal to that limited extent and reduce the sentence from one of 8 years to one of 6 years.