England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 17th November 2009

1. MR JUSTICE WYN WILLIAMS: On 20th April 2009 the applicant appeared before the Crown Court at Carlisle. He was then charged upon an indictment containing a single count of possessing a firearm with a barrel less than 30 centimetres in length, contrary to section 5 of the Firearms Act 1968. The applicant pleaded guilty and sentence was adjourned. On 17th July 2009 the applicant appeared at the same Crown Court for sentence and Mr Recorder McLoughlin sentenced him to a term of 5 years' imprisonment.
2. This is a renewed application for permission to appeal against that sentence. The application was refused on the papers by the single judge.
3. The relevant facts are as follows: In about February 2007 the applicant moved into a bed-sit in Penrith. He remained in occupation of the bed-sit in the sense that he was the tenant of it until about November 2008. But it is accepted on his behalf that from time to time during that period he would sleep at a farm premises occupied by his uncle Mr Alan Clark.
4. In April 2008 the applicant was working on the farm. On a day in that month he decided to take a firearm owned by his uncle. The gun in question was a Webley single shot .410 shotgun. We should stress that Mr Clark was entitled to be in possession of the shotgun, he was the holder of the requisite shotgun licence.
5. Shortly after stealing the gun the applicant shortened the barrel. His reason for doing that was that he wanted to take the weapon off his uncle's premises end he could more easily fit the gun into a bag and remove it with its barrel shortened. It is one of the unhappy features of this case that if the applicant had not shortened the barrel in this way, he would not have committed the offence contrary to the amended section 5 of the 1968 Act.
6. The applicant has always maintained that he stole the shotgun so that he could use it to kill himself. That explanation has always been accepted by both medical and prosecuting authorities. However, it is apparent from a comprehensive psychiatric report prepared upon the applicant by Dr Green, a consultant forensic psychiatrist, that shortly after stealing the gun the applicant lost his resolve to kill himself. He told Dr Green that he got to the point of placing the gun against his head but he could not pull the trigger. Following this episode the applicant put the gun in a wardrobe in his bed-sit and left it there. The applicant told Dr Green that in August 2008 he moved out of the bed-sit and went to live with his uncle. As we have said, he left the gun in the bed-sit in an unsecured wardrobe.
7. In November 2008 the owner resumed possession of the bed-sit. When checking it he discovered the shotgun. Not surprisingly he telephoned the police and handed over the gun to the police for safekeeping. Thus, police officers were able to trace the owner of the gun (Mr Clark) and through him the applicant.
8. The applicant was arrested in late January 2009. He was interviewed under caution. He declined to answer the questions which were put to him.
9. The offence with which the applicant was indicted carries with it a mandatory minimum sentence of 5 years' imprisonment unless the court is of the opinion there are exceptional circumstances relating to the offence or offender, which justify imposing a lesser sentence (see section 51A of the 1968 Act). It is worth noting that when the applicant was first charged with an offence he was not charged with an offence contrary to section 5; he was charged with a lesser offence. Indeed that lesser offence did not carry a minimum term of imprisonment. The applicant misguidedly first indicated that he intended to plead not guilty to that lesser charge. Indeed as we understand it, he entered a plea of not guilty. However, following receipt of responsible legal advice the applicant indicated his intention to change his plea. That was accepted in the Magistrates' Court and the applicant was committed for sentence. By the time the case reached the Crown Court, however, at the very latest as we understand it, the prosecution had indicated its intention to proceed against the applicant for the offence which appeared on the indictment.
10. The applicant is 32 years old. He has appeared in courts on seven previous occasions for a total of 11 offences. None of the applicant's previous offending involved possessing a firearm, or for that matter acting violently in any significant way.
11. As a boy the applicant suffered the trauma of discovering the body of his stepfather who had shot himself with a shotgun. Since his mid teens the applicant has a well documented history of mental illness. At age 16 he joined the Army and remained serving for almost 3 years. He left, as we understand it, because he became very depressed and after making a suicide attempt. In the years following, the applicant suffered from a number of depressive episodes. He has attempted suicide on a number of occasions. His mental state and condition has been fully assessed in the comprehensive report provided by Dr Green. We should also record that the applicant's mental state has been exacerbated by his amphetamine abuse.
12. Before the Recorder, Mr Fanning for the Applicant submitted that the mandatory minimum sentence of 5 years' imprisonment should not be imposed because there existed exceptional circumstances relating to the offender and the offence. In his most helpful skeleton argument for this court, at paragraph 5 he sets out in numbered subparagraphs all those factors which he submits justified that submission. Essentially he submits that the shotgun was taken with the sole aim of committing suicide. When the applicant decided against suicide, he disposed of the one cartridge which was in his possession and thereafter stored the gun in what was, submits Mr Fanning, a reasonably secure place. It was much more likely than not, it is suggested, that the gun would be discovered by the owner of the flat and no one else.
13. During the course of his submissions Mr Fanning made reference to a number of authorities of this court which deal with firearms. We do not propose to cite substantial passages from the many authorities mentioned in Mr Fanning's skeleton, but some citation is necessary.
14. In a very recent decision of this Court, R v Wilkinson & Ors [2009] EWCA Crim 1925, the following passage appears from the judgment of the Lord Chief Justice:

"The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community."

The Lord Chief Justice then considers, very briefly, the provisions which permit a lesser sentence than 5 years under the Firearms Act. He said this:

"These provisions do not arise directly for consideration in this judgment, and it would therefore be inappropriate to examine the circumstances which it may be appropriate to regard as exceptional for the purposes of imposing a shorter sentence than the prescribed minimum, save to emphasise that they must indeed be exceptional . It is nevertheless necessary to focus attention on the importance of these provisions and their intended impact for sentencing in cases involving gun crime even at a lower level of seriousness than those which arise in the present case. They confirm, if confirmation were needed, that possession of a firearm, without more, and without any aggravating features beyond the fact of such possession, is of itself a grave crime, and should be dealt with accordingly."

15. In Rehman & Wood [2006] 1 Cr App R(S) 77, this court presided over by a previous Lord Chief Justice, Lord Woolf, gave guidance on the approach the court should take when considering whether or not exceptional circumstances existed which justified departure from the minimum term. First, he stressed that the court should look at all the circumstances relating to the case in the round. We say that basing ourselves on this short passage from his judgment:

"Then it is not appropriate to look at each circumstances separately and to conclude that it does not amount to an exceptional circumstance. A holistic approach is needed. 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."

16. Second, the Lord Chief Justice suggested that exceptional circumstances would exist if the sentence of 5 years' imprisonment would result in a sentence which was arbitrary and disproportionate.
17. It is also to be noted that it is the opinion of the court that is critical as to what are exceptional circumstances. In Rehman, this court suggested that unless the sentencing judge is clearly wrong in identifying circumstances when they do not exist, or clearly wrong in not identifying the exceptional circumstances when they do exist, this court will not readily interfere.
18. We have scrutinised the sentencing remarks of Mr Recorder McLoughlin with great care. He has, in our judgment, explained fully why he reached the conclusion that exceptional circumstances did not exist in this case. It is not possible to summarise, accurately, each and every point made by the learned Recorder in his careful remarks. They run to two pages and more. However, the following points can be drawn from the sentencing remarks, without doing an injustice to the remarks as a whole. First, the Recorder accepted that the purpose behind the acquisition of the shotgun was so that the applicant would take his own life. Second, that he shortened the barrel for the purpose of taking the gun from his uncle's premises and for no more sinister purpose than that. But, third, that having lost his resolve to commit suicide, he then left the gun in what was in reality an insecure place, at a time when he was often not present in his bed-sit thereby running a very significant risk that the gun could fall into the wrong hands.
19. Was he clearly wrong in his assessment of the circumstances taken as a whole? In our judgment, we cannot say that he was. There are, as Mr Fanning has properly pointed out, a number of unusual features in this case. To repeat, he sets them out in paragraph 5 of his skeleton argument and we have sought to highlight the main unusual feature in the course of this judgment. But in our view the Recorder was perfectly entitled to reach the conclusion overall that the factors taken together did not amount to exceptional circumstances.
20. Our task is, as we have said, to decide whether or not he was clearly wrong. We do not think that he was, and in those circumstances it is our duty to dismiss this appeal.