England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		19th December 2012

MR JUSTICE GLOBE:

1. On 10th November 2011 at Liverpool Crown Court before His Honour Judge Edwards the appellant was convicted on count 3 of the indictment of an offence of conspiracy to possess firearms with intent to enable others to endanger life and was sentenced to a term of life imprisonment, with a minimum term to be served of 11 years. Additionally he was also convicted of two counts of conspiracy to import firearms and conspiracy to transfer prohibited firearms in respect of which no separate penalty was ordered.
2. The appellant appeals, with leave of the Full Court, on the basis that the arguable point is whether the sentencing judge adequately reasoned his decision that life imprisonment rather than a very lengthy determinate sentence was necessary.
3. A co-accused, Neil Copplestone, was convicted after a retrial of like offences. On 30th March 2012 he was also sentenced to life imprisonment. His application for leave to appeal against sentence was refused by the single judge and has not been renewed.
4. The conspiracies ran from December 2009 until July 2010. They involved the purchase of 81 semi-automatic handguns from retail outlets in North Carolina in America for importation into the United Kingdom by aeroplane in hold luggage and the onward sale to criminals on Merseyside. Over 50 such firearms remained in unlawful circulation.
5. The prosecution case was that an American national, Steven Greenoe, made 10 trips to North Carolina to purchase and import the guns into the United Kingdom. They were received on Merseyside by the appellant, who in turn transferred them to Copplestone for onward sale to criminals. The appellant also acted as Greenoe's banker. Three guns were sold to undercover police officers in February 2010. Others were traced to use in a murder in Scotland, an attempted murder in Manchester and a robbery in Liverpool. Greenoe was arrested at Raleigh-Durham Airport on 25th July 2010, his hold luggage was searched and 16 dismantled firearms were found. He was prosecuted by the American authorities. We are informed, but have seen no evidence, that he was convicted of like offences and sentenced in America on 10th January 2012 to a term of 12 years' imprisonment.
6. The leading authority in cases of this nature is R v Wilkinson & Ors [2010] 1 Cr App R(S) 100. It was a collection of cases that related to very serious arms dealing.
7. In the course of his judgment the Lord Chief Justice reviewed previous authorities in relation to what is the appropriate sentence for such offending. In the course of the judgment the Lord Chief Justice indicated that the established sentencing guidance in firearms cases, set out in R v Avis & Ors [1998] 2 Cr App R(S) 178 needed to be supplemented. This was because the criminality considered in Avis did not address sentencing levels for criminality involving large scale importations and/or the manufacture, sale and distribution of firearms.
8. In this regard section 225 of the Criminal Justice Act 2003 is of importance. Section 225 deals with the circumstances where the court is of the opinion that a defendant is dangerous as a result of a finding that there is a significant risk to members of the public of serious harm being occasioned by the commission of further specified offences. If the court is of such an opinion a life sentence should be passed if the seriousness of the offence justifies it. As at the time the appellant was sentenced, if a life sentence was not justified, then an indeterminate sentence of imprisonment for public protection may have been passed.
9. At paragraph 19 of the judgment in Wilkinson & Ors, the Lord Chief Justice said as follows:

"In our judgment it is clear that as a matter of principle the discretionary life sentence under section 225 should continue to be reserved for offences of the utmost gravity. Without being prescriptive, we suggest that the sentence should come into contemplation when the judgment of the court is that the seriousness is such that the life sentence would have what Lord Bingham observed in Lichniak [2003] 1 AC 903, would be a 'denunciatory' value, reflective of public abhorrence of the offence, and where, because of its seriousness, the notional determinate sentence would be very long, measured in very many years. The application of this principle will be seen in the appeal of Wilkinson."

10. At paragraph 27 the Lord Chief Justice said:

"Where however the statutory intent involving danger to life has been established, and it is clear that the firearms were subsequently used with homicidal intent by others to whom they were supplied or who obtained them in the criminal firearms market, the sentences on the importer or supplier should always reflect these dreadful consequences. In the context of section 225 of the 2003 Act the fact that the importer or supplier is not an individual who pulled any trigger, or discharged any firearm, or caused serious injury himself, does not resolve the issue of future dangerousness in his favour. Criminals who are prepared to deal in such lethal weapons invariably represent a serious public danger, and it cannot be assumed that the danger they represent will have dissipated when the determinate element of their sentences has been completed. We therefore supplement the guidance in Avis and others by emphasising that for criminals involved in this level of gun crime along with very lengthy determinate sentences, indeterminate sentences, whether discretionary imprisonment for life or IPP, inevitably arise for consideration. We shall apply this guidance to the present appeals."

11. The court then considered the cases before it.
12. Wilkinson had many previous convictions for dishonesty, drugs and violence, in respect of which he had previously served sentences of imprisonment. He was convicted of possessing firearms with intent to enable others to endanger life and was sentenced to life imprisonment, with a minimum term of 11 years. He placed an order for 90 replica submachine guns which were taken to a gun factory under his control in London where the guns were converted into lethal weapons. By the time of sentence there had been 51 shootings involving the weapons which included eight fatal shootings and 13 instances of injury to the person. Of the 90 that had been bought, 53 had been recovered. The court was satisfied that the sentencing judge was not merely entitled but was fully justified in treating the offence as one of the utmost gravity and the appeal was dismissed.
13. Ali, Akhtar, Wilson and Salim were four appellants who were described as "gun runners" who were involved in the importation and onward distribution through the North of England of Russian Baikal self-loading pistols, sound moderators and ammunition. Fifty-six weapons were recovered by the police but more had been successfully distributed as a result of the conspiracy. The operation was co-ordinated by Ali, who gave instruction to Akhtar who in turn instructed Salim. Wilson bought some weapons from Akhtar and arranged for their onward distribution. Ali was sentenced to 18 years after a plea; Akhtar, to 20 years after a trial; Wilson, to eleven-and-a-half years after a plea and Salim to 10 years 8 months after a plea. The pre-sentence report for Ali included an invitation to the court to consider a life sentence, or an indeterminate sentence for public protection. In the words of the Lord Chief Justice: "That approach, we suggest, is vindicated by the present judgment". However, the judge did not impose either a life sentence or an indeterminate sentence for public protection. All of the appeals were dismissed.
14. Olawaiye, Farah and Ahmed were three appellants who were an organised criminal group with numerous previous convictions which had led to a number of sentences of imprisonment. Their offending occurred before section 225 had come into force. They conspired to possess two self-loading pistols with intent to endanger life and were also involved in an arms deal involving weapons in Hackney. Olawaiye and Farah were sentenced to 18 years after a trial and Ahmed was sentenced to 9 years after a plea, based on a starting point of 14 years. In the particular circumstances of the case, Farah's sentence was reduced to 14 years but the other two sentences were upheld, with this court stating that no legitimate complaint could be made about the sentences for involvement in transactions involving the purchase and sale of lethal firearms with ammunition for using them. The Lord Chief Justice concluded at paragraph 84 by saying is:

"For the reasons already given, if these offences had been committed in, say, January 2006, the judge would have been required to consider whether indeterminate sentences were appropriate."

15. It is apparent from the principles and cases referred to in Wilkinson & Ors that for cases of this nature the court must therefore carefully consider the applicability of section 225 of the Criminal Justice Act 2003.
16. Mr Harris submits, on behalf of the appellant, that notwithstanding the observations of the Lord Chief Justice in Wilkinson & Ors, it was not appropriate for the judge to have passed a life sentence or an indeterminate sentence of imprisonment for public protection on this particular appellant. The gravity of the offending should instead have been marked by a lengthy determinate sentence. He refers to the assessment that must be carried out by the court when considering dangerousness under section 225 of the Act.
17. Section 229 of the Act applies when it falls to a court to assess, under section 225, whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. Subsection (2) states:

"... (2) the court in making the assessment referred to in subsection (1)(b)—

(a) must take into account all such information as is available to it about the nature and circumstances of the offence

(aa) may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world

(b) may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (aa) forms part, and

(c) may take into account any information about the offender which is before it."

18. In relation to subparagraph (a) Mr Harris acknowledges the seriousness of the appellant's offending. However, he submits that the appellant was not at the top of the conspiracy. As confirmed in the sentencing remarks of the trial judge, the appellant had been brought into it by Greenoe who was the principal offender and who was the one who from America had sourced and obtained the guns and organised their importation.
19. In relation to subparagraph (aa) there are no other offences to be considered.
20. In relation to subparagraph (b) Mr Harris submits that the appellant has no mental health or other personality issues and there is no pattern of behaviour to suggest that there is any potential for a repetition of offending.
21. In relation to subparagraph (c) Mr Harris submits that the appellant is a man of previous good character. He is a university graduate. He was in reasonable employment as a recruitment consultant. He had a settled home life, living with his partner and 2-year-old child in a house being purchased on mortgage. Numerous documents establish that since his conviction he has behaved impeccably in prison, not only by continuing his own education but also by assisting others as a peer tutor. Mr Harris submits that the additional information provides contra indicators to the predictive risk of dangerousness necessary for the imposition of a discretionary life sentence or any indeterminate sentence. It enables a judgment to be made, as opposed merely to an assumption, that the appellant was dangerous such that a life sentence was an appropriate sentence to be imposed.
22. The trial judge proceeded to sentence almost immediately after the trial had been concluded. He had the advantage of having seen the appellant during the course of the trial but he did not have the advantage of any assessment of the appellant in a pre-sentence report or any other report. Specifically, there was no assessment before him of whether or not the appellant was regarded as dangerous by the probation service in accordance with their assessments tools. In passing sentence the judge made reference to the case of Wilkinson & Ors and he was clearly mindful of the observations of the Lord Chief Justice about the seriousness of offending of this nature. In the view of the judge, the offending was extremely grave. It merited a deterrent sentence. In his view, a life sentence was the appropriate sentence on count 3, with a notional determination sentence of 22 years. Upon being requested by leading counsel for the Crown, he confirmed that he had assessed the appellant as dangerous.
23. We are in entire agreement that the offending was extremely grave and it merited a deterrent sentence. We further agree that a notional determinate sentence of 22 years was appropriate.
24. We are also satisfied that for many cases of this nature, applying the principles enunciated in Wilkinson & Ors, offenders who have committed such offences will be assessed as dangerous offenders and a life sentence will be appropriate. The case of Wilkinson demonstrates that point. However, the circumstances of Wilkinson were different to the circumstances of this appellant.
25. The principles set out by the Lord Chief Justice in Wilkinson & Ors supplement the statutory process and do not replace it. One cannot assume from the seriousness of the offending alone that an offender is dangerous. The court must still consider the issue of dangerousness within the context of section 229 of the Act. In doing so, a greater significance must be given to the seriousness of the offending but the test remains the same and must be applied to the particular offender who is to be sentenced.
26. In our judgment, on all of the material before the judge, including the facts of the various serious firearms offences of which he had been convicted, it cannot be concluded that there was a significant risk to members of the public of serious harm being occasioned by the commission by this appellant of further specified offences. We are satisfied that for this particular appellant and for his offending, neither a life sentence nor an indeterminate sentence for public protection was justified.
27. For these reasons and notwithstanding the seriousness of the offending the life sentence was inappropriate and must be regarded as a manifestly excessive sentence.
28. We allow the appeal. The sentence that will be substituted on count 3 is a determinate sentence of 22 years, which was the notional determinate sentence upon which the minimum term was based.

SMITH BERNAL WORDWAVE