England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
HIS HONOUR JUDGE KELSON QC
T20117230

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/02/2012

Mr Justice Irwin:

1. On 7 September 2011 at the Crown Court at Sheffield before His Honour Judge Kelson QC, the Appellant pleaded guilty to count 2 on the indictment, an offence of possession of a disguised firearm, and was sentence to 4 years imprisonment. He appeals against his sentence by leave of the single judge.
2. The facts can be summarised as follows. At about 10.00pm on 7 May 2011, the Appellant was arrested, after he had been seen acting suspiciously close to a motor car. His home was subsequently searched and the officers found a safe behind a fireplace. The key to that safe was found on the Appellant and when the safe was opened, the officers found a stun gun disguised as a mobile phone. The Appellant declined to comment about the offence in interview but did say:

"How did you know about the safe? I have had five house searches so far and nobody has found it."

3. Arising from other matters which became evident at the same period, the Appellant was charged on 9 May 2011 with other offences: allowing himself to be carried in a stolen vehicle, handling a stolen Blackberry mobile telephone, going equipped for theft and criminal damage.
4. Good practice should have meant that the Appellant was committed for sentence to the Crown Court on all those matters, so that they could be dealt with together alongside the firearms matter. Instead, he was sentenced for the other matters on 31 May, receiving a total of 9 months imprisonment for those other offences, a sentence which of course he began to serve. He had been remanded in custody from 7 May.
5. The relevant statutory provisions applicable to the firearms offence are as follows:

"Firearms Act 1968

Section 5(1):

A person commits an offence if, without the authority of the Defence Council, he has in his possession……

(b) Any weapon of whatever description designed or adapted for the discharge of any noxious liquid gas or other thing …….

Section 5(1A)

Subject to Section 5A of this Act, a person commits an offence if, ……….he has in his possession ……

(a) any firearm which is disguised as another object."

6. Whether a weapon constitutes a firearm, is a question of fact. However it is accepted as a matter of practice that a "stun gun" such as this, which discharges an electrical discharge, is a firearm.
7. By operation of Section 51A of the Act a minimum sentence provision applies to any individual convicted of an offence under Section 5(1A) (a) of the Act, that is to say an individual who possesses a disguised firearm. The minimum sentence provisions in their relevant part read as follows:

"Section 51A(2)

The court shall impose an appropriate custodial sentence ……for a term of at least the required minimum term……unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.

……..

(5) In this section the "required minimum term" means –

(a)(1)…….5 years"

8. Thus, as a matter of law, there is a specific offence for a weapon designed to discharge a noxious liquid, gas or "other thing". This weapon was designed for such a discharge, and thus possession of this weapon contravenes Section 5(1) (b). However, this weapon was disguised as a mobile phone. Despite the fact it is not a firearm in the ordinary sense of firing a projectile, Parliament has provided that such a disguised weapon falls within the minimum sentence provisions. For the purpose of convenience, we shall refer to the Section 5(1) (b) as the "lesser offence" and the Section 5(1A) offence as the "greater offence".
9. The Appellant was charged with the lesser offence on 9 May, the day after his arrest. When he appeared before the Magistrates Court (it would seem on 31 May) the greater offence was laid, not the lesser. That charge being triable on indictment only, was "sent" in accordance with the provisions of Section 51 of the Crime and Disorder Act 1998 to the Sheffield Crown Court. However, when papers were served on the Appellant, the Crown had reverted to the lesser offence. This represents the second change of mind on the part of the Crown.
10. The Defence acted on that premise and, after seeing the Appellant in prison, the solicitors wrote to the Crown Prosecution Serve on 15 July asking for the planned hearing on 2 August 2011 to be brought forward, so that the Appellant could plead guilty to the lesser offence and the matter would be resolved in that way.
11. We were informed in the course of the hearing by the defence, but confirmed in effect by prosecution counsel, that this has been and is a commonplace prosecutorial decision, at least in Yorkshire. Both parties are aware of a number of cases where the decision by the prosecution has been to opt for the lesser offence and prisoners are serving sentences for the possession of disguised stun guns far below the minimum level which would arise if the greater offence had been charged and the minimum sentence provisions applied. Examples of the weapons concerned include stun guns disguised as such objects as a knuckle duster.
12. The matter was listed on 20 July, so far as the parties were concerned on the basis that the Appellant's plea of guilty to the lesser offence would be accepted and he would be sentenced on that basis. The case came before Openshaw J who raised the question of prosecution policy with the Crown. After some discussion, he declined to allow the plea to be entered and asked the Crown to engage in a full reconsideration of their decision in this case. He specified that thought should be given at the highest level to this charging decision. He observed, perfectly correctly, that:

"Parliament has passed these laws for a purpose."

13. On 12 August a fresh indictment was laid with 2 counts, containing one count of the lesser and one of the greater offence. On that day, the Appellant pleaded guilty to count 1, the lesser offence. An application was made to stay count 2 as an abuse of process, by reference to the changes of mind on the part of the Crown and reliance upon those changes by the Appellant. Even at this stage, having given an indication beforehand that the plea entered would be acceptable, it seems that the Crown perpetuated that understanding, and the Appellant continued under the misapprehension that such a plea would be acceptable to the Crown. However, in the event that position did not persist.
14. On 7 September, His Honour Judge Kelson QC heard a contested application to stay count 2. The Crown had reverted to seeking to support the greater charge. They succeeded in resisting the application to stay, for the reasons given by the Judge. Unfortunate though the Crown's vacillation may have been, it did not amount to an abuse of process. The Judge then proceeded to sentence as we have indicated.
15. In the course of submissions on behalf of the Appellant, the Judge was asked to say that the history here, taken together with the inconsistent decisions on prosecuting others in indistinguishable circumstances, represented "exceptional circumstances" under Section 51A (2) of the Act. In a carefully reasoned decision, the judge rejected that in relation to the offence but upheld the submission in relation to the offender. He did so, in part, in these words:

"[The defence advocate] also relies upon the fact that, rather lamentably, the lower court decided to sentence you on 31 May for the associated criminal offending which gave rise to the police arrest resulting in the search that located this disguised stun gun. It is unfortunate. It would have been, in my view, much more appropriate for this court to have been seized of those matters as well as this matter in order that sentences could be passed concurrently on the same occasion because the consequence of the District Judge deciding to sentence in the lower court for the offence of, I think, handling and taking a motor vehicle and various other offences of going equipped and so on – they are all on your criminal record – means that you are now two and a half weeks away from release. That is not an attractive or appropriate state of affairs.

………….

Exceptional circumstances concern the offence and the offender. I find no exceptional circumstances in respect of the offence. In respect of the offender I try and reflect some proportionality and try to reflect some sense of justice and the exceptional circumstances relating to you as an offender are the way you have been treated by the process in this case. It is much, much less than attractive and, in the circumstances, I reduce the sentence from 5 years to 4 years. Of course I have in mind your guilty plea but that cannot be reflected in a further reduction. I do have it in mind along with all the other matters in reducing the minimum term from 5 years to 4 years. That is my sentence."

16. As a result of the Appellant's record there is no personal mitigation in this case. The case turns on three key points. Firstly, it is clear that there has been an inconsistent and potentially arbitrary prosecuting policy as to whether to prosecute for the "greater" or "lesser" offence, or at the very least to accept a plea to the lesser offence as disposing of such a case. Secondly, in this case there was a lamentable series of switches of decision from one position to the other, raising and then dashing the expectations of the Appellant on more than one occasion. Thirdly, compounded with the other problems in this case, the Appellant was sentenced for the other offences before the Magistrates Court with a significant negative effect for him. Once sentenced, he naturally began to serve the sentence and was within three weeks of completing that sentence when he came before the judge. In ordinary circumstances, the judge could have put right the effect of split sentencing if he thought it right to do so, by reducing the sentence he passed to reflect the time spent serving the sentence passed by the Magistrates Court. However, where the judge was faced with a statutory minimum sentence of five years, it was not open to him to make such an adjustment in any other way than by treating the case as falling within the "exceptionality" category.
17. In the course of measured, frank and helpful submissions to the court, Mrs Martin, who was instructed on behalf of the Crown throughout in this case, confirmed the essential points of the story. She confirmed the incoherent prosecuting policy which appears to apply and explicitly accepted on behalf of the Crown that the judge was correct to find that there were exceptional circumstances obtaining in relation to this offender, because of the particular history.
18. Mrs Martin invited this court to consider whether there should not be an authoritative national policy on charging in these circumstances. The daily reality of prosecutorial decisions may be that greater or lesser offences are chosen to be preferred, and pleas are accepted or not to greater or lesser offences, depending upon the circumstances of each case. That is to be expected and gives rise to no criticism even if the consequences for defendants may be very considerable. However, we understand the concerns if apparently arbitrary decisions are taken in respect of offences and offenders leading to widely different disposals. The problem is accentuated by a statutory minimum sentence. If it were thought an arbitrary decision had been taken between an offence allowing the judge freedom to sentence appropriately for the offender, and another offence where the court's hands are tied by a statutory minimum sentence, then such a decision might well give rise to a justified sense of grievance. We reach no conclusion as to the effect here. However, we do feel able to observe that it would assist the courts to promote consistency in sentencing if a coherent and principled policy as to prosecuting those found in possession of disguised stun guns was both devised and published.
19. We turn to consider what the judge did. The judge's reduction for the circumstances in this case reflected the history of indecision about what offence to prosecute compounded by the "premature" sentence in the Magistrates Court. In the course of argument, we raised a concern as to whether this was in truth a legally proper basis for the application of the exceptionality test, but since both parties to this case accept the proposition here we do not seek to disturb it. We make it clear that this case should not be cited as a precedent in any other case with a view to the application of the exceptionality test. It is confined to its facts.
20. We have every sympathy with the judge's attempt to do justice. In fact by the reduction of the sentence by one year he was able to put right the effect of the "premature" sentence in of the Magistrates Court. However, for that reason the reduction of one year had a limited effect only in reflecting the vacillation on behalf of the Crown as to how to proceed.
21. Had the Appellant been consistently prosecuted for the greater offence and committed by the Magistrates Court to be sentenced, in respect of all the offences together he would have faced a five year minimum term. It is highly likely in those circumstances the judge would have passed concurrent sentences for all offences. The Appellant would have been sentenced to that term probably in July or August of 2011 and the period on remand from 7 May would have counted against his sentence. His release date, assuming release on licence at the halfway stage, would have been likely to be in early November 2013. As it is, as a result of the judge's sentence, it will likely to be the end of September or October 2013. It follows that the sentence has given the Appellant in practical terms some advantage over the position as it should have been had there been a coherent and vigorous prosecution for the greater offence. In our judgment that was a sufficient adjustment for those factors.
22. Mrs Seaborne for the Appellant submitted to us that the proper course for us is to reduce the sentence to the level it would have been had the Appellant been prosecuted for the lesser offence. We reject that submission. In the absence of a prosecution policy demonstrated to be arbitrary, it would not be right to do so. For those reasons this appeal is dismissed.