England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		17 April 2015

1. MR JUSTICE GILBART: On 16th September 2014 in the Crown Court at Kingston upon Thames, this appellant pleaded guilty before His Honour Judge Birts QC to possessing a prohibited firearm contrary to section 5(1(aba) of the Firearms Act 1968. On 8th October before the same judge he was sentenced to seven-and-a-half years' imprisonment and ordered to pay a victim surcharge order. An order was made under section 52 of the 1968 Act for forfeiture of the gun. He now appeals against sentence by leave of the single judge.
2. At 10.35 am on 4th August police officers executed a search warrant at an address in Twickenham. Whilst outside the premises waiting to effect entry, one of the officers saw the appellant come to a window inside the property, open it and throw out a firearm. Officers forced entry moments later. The appellant was present inside the flat with his wife and two children aged 2 and 5. He was arrested. He said: "It's my gun. My wife has no knowledge of the gun. I pulled it out while she was asleep." The property was searched. No associated ammunition and no other firearms were recovered. The appellant gave a prepared statement in interview in which he said that he accepted possession of the firearm but had been forced to hold it. He could not reveal any more than that because he feared for his safety and that of his family.
3. The firearm was an EKOL Jackal dual pistol, capable of firing in both automatic and semi-automatic modes. When originally manufactured it had an obstructed barrel designed to prevent the discharge of objects. It had since been converted so that the barrel was unblocked. It was capable of firing conventional .32 calibre automatic ammunition.
4. The appellant pleaded guilty at the earliest opportunity. He had appeared before the courts on one previous occasion. On 14th October 2009, when aged 22, he was sentenced to 10 years' imprisonment for possessing a firearm with intent to endanger life, seven years' imprisonment concurrent for possessing a prohibited weapon and three years' imprisonment concurrent on offences of possessing a firearm and ammunition without a certificate. He was released from that sentence on 21st May 2014.
5. In passing sentence the judge said that the most serious aspect of the case was that on 21st May 2014, a short time before this offence, which was in itself a serious matter, he had been released from a sentence of 10 years' imprisonment imposed for firearms offences. That sentence should have brought home to him the very serious concerns which the courts had reflecting public opinion about guns. On this occasion the firearm was not loaded, it had been modified and was capable of firing lethal ammunition. The judge said that the appellant had told the police it had one round in the clip but that was never found. No other ammunition was found on the premises. The judge referred to the fact that while he told the police that he was forced to hold the gun but could say no more. In the mitigation advanced before the court it was claimed on his behalf that he had come across an angry boy who was in possession of the gun and persuaded him to give it up. He thought it unwise to hand it in because of his record. The judge rejected his account. He sentenced him on the basis that he had the gun for his own purposes. The judge found troubling the fact that his previous firearm convictions had followed an acquittal for murder. On the other hand, balanced against that were letters attesting to his good character, saying that he had changed since he had been to prison and that he was a decent husband and family man. The judge found that his conviction so soon after release on licence from a 10-year sentence was a very serious aggravating factor. In all the circumstances, taking into account his guilty plea, but also recognising that this was a strict liability offence where there was really no defence, the sentence was seven-and-a-half years' imprisonment.
6. The grounds of appeal contend, first, that he should have received full credit to reflect his plea of guilty at the earliest opportunity; alternatively a reduction of 20 per cent should be made following the definitive guideline; third, that the sentence was manifestly excessive because of a failure to give a reduction in sentence to reflect the guilty plea and that the sentence was wrong in principle for the same reason.
7. We start our consideration by noting that the maximum sentence for this offence is one of 10 years' imprisonment. However, it is also an offence for which a minimum sentence is prescribed under section 51A of the Firearms Act 1968. Problems can arise because of the narrow headroom which that gives to sentencing judges. There are two issues here. First, what would the appropriate sentence have been after trial, and second, what is the appropriate level of discount for the prompt guilty plea?
8. Dealing with the first issue and looking at the questions raised in the guideline case of Avis [1998] 1 CrAppR 420: first, the gun was a genuine weapon, but no ammunition for it was found; two, there is no evidence that this gun had been used in any actual crimes; three, there is no evidence of the appellant's purpose in having it, but given what he told the police that he was holding it for others no doubt it would be used for criminal purposes at some point; and fourth, he had a very bad record for possession of firearms. In our judgment, that last matter in particular elevates this offence to near the top of the range. We do not consider that the maximum sentence of 10 years would be appropriate. Mr Oliver submitted to us that a figure of seven to eight years after trial would be appropriate. We disagree. We consider that the appropriate figure after a trial is one of nine years' imprisonment.
9. We turn now to the second issue. We have had regard to the definitive guideline and to the guideline case of Caley [2012] EWCA Crim 2821. In this case the judge did not say what credit he was giving, despite the terms of the guideline and of section 174 of the Criminal Justice Act 2003. We refer to the judgment of Hughes LJ in Caley at paragraphs 23, 24 and 25:

"23. Paragraph 5 of the SGC Guideline expressly advises that it might be appropriate to limit the reduction in sentence for plea of guilty where the case against the defendant is, irrespective of any admission, overwhelming. The terms in which that advice is given in the Guideline are cautious. If the plea is indicated at the first reasonable opportunity, the Guideline states that there remains a presumption that the full reduction of one third ought to be given. If there is reason not to make this full reduction, it is suggested that the reduction should be of the order of one fifth.

24. In R v Paul Wilson [2012] EWCA Crim 386 this court recently considered this question in the context of a particularly serious case of two oral rapes of a three year old, which had been recorded on camera. The trial judge had declined to make any reduction in sentence for the plea of guilty although it had been indicated at a very early stage within a week of police interview. This court disagreed and reduced the very long sentence imposed, which reflected also other very serious child grooming offences. After assessing the state of the evidence, the Lord Chief Justice referred to the judge's view that the defendant had had no choice but to plead guilty but said that 'Ultimately the plea is for the defendant'. He then said this at [29] and [31]:

'[29] Even in an overwhelming case the guilty plea has a distinct public benefit. The earlier that it is indicated, the better for everyone ... There are two examples we wish to highlight. First, none of the repellent movie of the little girl would ever be shown in public. No one would ever see her face. In addition, none of it would ever be seen by the jury [who] ... would have been horrified ... Those are but two advantages of the guilty plea.

...

[31] Although we understand the judge's view, it would be productive of uncertainty, and would ultimately cause chaos if this court were to suggest that an existing definitive guideline could be disregarded or ignored in this case unless, at any rate, we were able to find a specific reason to conclude that he interests of justice required us to do so.'

Those observations were made in the context of wholesale refusal of any reduction but they have a wider lesson to teach. The cautious terms of the SGC guidelines on this topic are deliberate and wise. The various public benefits which underlie the practice of reducing sentence for plea of guilty apply just as much to overwhelming cases as to less strong ones. Next, judges ought to be wary of concluding that a case is 'overwhelming' when all that is seen is evidence which is not contested. Thirdly, even when the case is very strong indeed, some defendants will elect to force the issue to trial, as indeed is their right. It cannot be assumed that defendants will make rational decisions or ones which are born of any inclination to co-operate with the system, but those who do merit recognition. When contemplating withholding a reduction for plea of guilty in a very strong case, it is often helpful to reflect on what might have been the sentences if two identical defendants had faced the same 'overwhelming' case and one had pleaded guilty and the other had not. In any event, the guidelines make clear that normally at least a one-fifth reduction ought to be made, however 'overwhelming' the evidence.

25. As one of the present appeals illustrates, it can be particularly tempting for courts to avoid reduction in sentence for plea of guilty when the statutory maximum sentence is low, or there is other inhibition, and the resulting sentence is felt to be insufficient. However tempting, this must be resisted. As the Guideline says at paragraph 5.6:

'The sentencer cannot remedy perceived defects (for example in an inadequate charge or maximum penalty) by refusal of the appropriate discount.'"

10. As is pointed out there by Hughes LJ, one matter which can happen is that defendants will elect and force an issue to trial, as is their right, and when a judge is considering whether to withhold credit in what is thought to be an overwhelming case, it is helpful to reflect on what might have happened if two identical defendants had faced the same overwhelming case and one had pleaded guilty and the other had not. In any event, the minimum discount to be given is one of one-fifth.
11. We now turn to the circumstances in this case. Here the judge never addressed the issues raised in Caley or in the definitive guideline in anything but cursory form, nor does he state what the sentence would have been after trial, which would have allowed one to understand how he reached the figure of seven-and-a-half years. We are persuaded that this is a case where the full one-third discount should not apply because he was caught with the gun. However, we consider that some discount should be given to the appellant in this case. We consider that the appropriate discount is one of 25 per cent. Based on a sentence of nine years, that produces a sentence of six years nine months. To that degree this appeal is allowed.