England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		The Law Courts, Cathays Park Cardiff CF10 3PG
		12th July 2016

1. MR JUSTICE HICKINBOTTOM: On 18 December 2015, in the Crown Court at Merthyr Tydfil, having earlier pleaded guilty, the Appellant Christopher James Mason was sentenced by His Honour Judge Bidder QC as follows:
2. Counts 2 and 3: use of a firearm with intent to resist or prevent his lawful arrest, concurrent extended sentences of seven years, namely four years plus a three year extension of the licence period;
3. Count 4: affray, two years concurrent;
4. Counts 5 and 6: criminal damage, two months each concurrent.
5. Having committed an offence during the operational period of a suspended sentence of 32 weeks' imprisonment for a burglary (during which he stole two packets of diazepam tablets), imposed on 29 July 2015, the suspended sentence was activated in full to run concurrently.
6. With the leave of the single judge, the Appellant now appeals against sentence.
7. The index offences arose out of a single rolling incident on the evening of 6th August 2015. That day, the Appellant had attended a police station, where he had been questioned about a public order incident at his parents' house. When he left the police station, he became anxious and took a number of street diazepam tablets which he thought would calm him down. However, to counteract the sedative effect of that drug, he also took cocaine.
8. At about 8.30pm, under the influence of these drugs, he broke into a top floor flat at Burnham Court, Llanrumny. The flat belonged to a friend of his who grew cannabis, whom he was regularly visiting at the time. On this occasion, however, the Appellant clambered up a drainpipe and broke in. A neighbour, hearing the noise of the break-in, called the police; but, when they arrived, they could not get into the flat because the Appellant, panicking and fearful of being arrested, had barricaded himself in. A crowd gathered outside.
9. An officer went to an adjoining balcony to try to speak with the Appellant. The Appellant started swearing at the officers, shouting, "I'll have the first one if you enter.... I have shooters, all loaded in here, and I will shoot anyone who comes through the door". He told them he had two guns and a hunting knife which he had, indeed, found on the premises. That general behaviour formed the basis of count 4.
10. A stand-off ensued between the Appellant and the police, who moved the public clear of the area and then cordoned it off. In the meantime, the Appellant ransacked the flat using a hammer to smash the front windows. He smashed various items belonging to the occupant of the flat, causing substantial damage (count 5). During the siege he threw heavy items, such as a television and dumbbells, out of the windows, damaging a police car (count 6). He also pointed two air rifles at officers, continuing to threaten any officer who entered the flat (counts 2 and 3).
11. The siege lasted for some five hours. During that time, as we have described, the Appellant told the police that the two firearms he had were loaded. They belonged to the owner of the flat. Half an hour or so after the beginning of the siege, the owner of the flat told police that, so far as he was aware, one of the firearms was broken and could not be discharged, and there was no ammunition in the flat for the other. As a result of this information, officers at the scene decided to call off the firearms officers who had been summoned, so as not to raise the temperature of the incident.
12. About two hours into the siege an Inspector Herbert, giving a snapshot of the incident on the police log and no doubt reflecting what the police had been told by the flat-owner, indicated that intelligence was that one of the firearms was not working and there was no ammunition for the other, with the result that the harm capability of the Appellant was low and he currently remained in the flat where there were no other persons. The wider public had been kept away from the premises, removing them from the threat. As officers who were at the scene were protectively clothed, and had shields and tasers, the threat to those officers was also considered to be low. However, the Appellant continued to wield one of the guns on the balcony, aiming it at officers and onlookers, and dry firing it, i.e. firing it without ammunition.
13. There came a stage when the police were concerned that, having thrown most of the furniture out of the flat, the Appellant might seek to damage service fittings in the flat, such as the gas fittings, which might cause a particular danger; and they were sufficiently confident that he was unable to discharge either weapon that they broke into the flat, subduing the Appellant with a taser, and thus bringing the siege to an end.
14. The Appellant was 29 years old at the time of the incident. He has a substantial criminal record of 26 offences on 16 occasions, including, in 2003 when he was 19 years old, a sentence of three years' detention for the attempted robbery of a post office at knife-point. In 2015, he was convicted on his plea of assaulting a police officer; but, although we have no details of that incident, its lack of any especial seriousness is reflected in the sentence: a fine of £100 and costs. His other offences are diffuse, but include criminal damage, theft and burglary. Most of the offending appears to have been related to alcohol or illicit drug abuse, of which he has a substantial history. He had no convictions between 2007 and 2015, a period in which he generally had employment, a steady relationship and less of a problem with alcohol and drugs. The burglary of the diazepam to which we have referred, and the index offences, appear to have been in a period when his life had less stabilising influences, and his alcohol and drug use had risen again to a high level.
15. The sentencing judge had the benefit of a report from a psychiatrist (Dr Roger Thomas) who said that, although it was unclear whether the Appellant had any form of psychotic disorder - he could diagnosed none - the Appellant did have recurrent depression and anxiety exacerbated by abuse of alcohol and illicit drugs, described by the psychiatrist as his "most severe problem", and accompanied by intermittent auditory hallucinations which were more intense under stress.
16. After being detained for these offences, the Appellant attacked two guards in an attempt to escape; and, whilst in prison, he has attacked a fellow prisoner which resulted in him being moved. None of those incidents apparently resulted in any substantial injuries to the victims.
17. The author of the Appellant's pre-sentence report assessed him as "posing a high risk of serious harm to members of the public, known adults, staff and other prisoners". Judge Bidder found that, on the basis of this offence, his previous convictions, his mental health problems and his pre-sentence and psychiatric reports, the Appellant was dangerous for the purpose of section 229 of the Criminal Justice Act 2003, i.e. there was a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. The firearms offence being appropriately schedule offences, he considered that that risk should be addressed by an extended sentence under section 226A. In considering the appropriate length of the sentence, he took the two firearms offences as the most serious offences and imposed concurrent sentences in respect of all of the other offences, including the suspended sentence which he activated. He considered that an aggregate sentence of six years before trial - four years, given his early plea - would have been appropriate, together with an extended licence period of three years to address the risk he had identified. He imposed that sentence concurrent on each of the firearms offences, and shorter concurrent sentences for all of the other matters.
18. Mr Shanahan for the Appellant contends that the sentence was wrong in two respects. First, the six year starting point, before credit for plea and any extension was added, was manifestly excessive. Second, the judge erred in finding the Appellant dangerous, a prerequisite for an extended sentence under section 226A.
19. With regard to the length of sentence for the firearms offences, the judge was bound to consider the factors set out in the leading case of Avis [1998] 1 Cr App R 420, i.e. the type of weapon, the nature of its use, the intention of the offender and the offender's criminal antecedents. In this case, the weapons comprised two air rifles, one not working, neither being as formidable as some other firearms. As to use, the weapons were brandished, but not discharged or otherwise used. They had no ammunition in them, nor did the Appellant have access to ammunition (although the police could not have been sure of that, despite the comfort given by the owner). As a result, no one was in fact injured. The intention of the Appellant with regard to the weapons is unclear: he has not been involved in firearms before, and came across those air rifles opportunistically. It was not a premeditated use of firearms. We have already dealt with the Appellant's record.
20. In sentencing the Appellant, the judge took into account all of those factors, together with other aggravating factors. He had to sentence for the criminal damage to the flat (which was completely trashed), and to the police vehicle as a result of the Appellant throwing heavy items out of the windows. The Appellant committed these offences in the currency of a suspended sentence order, which was activated. That too was an aggravating feature in this sentencing exercise. The sentences for the firearms offences were increased to reflect all of those aggravating factors.
21. The judge also took into account the mitigating factors which the Appellant could pray in aid, notably, in addition to those to which we have already referred in relation to the incident itself, the long period in which the Appellant was convicted of no offences and his mental health.
22. Although we accept that the apparent threat from the Appellant decreased over the period of the siege (given the information from the flat owner and the fact that the Appellant did not in fact use the rifles) and that the Appellant did not in fact have an effective firearms weapon, the incident lasted for five hours, during which the Appellant, intoxicated, not only threatened to shoot police officers, but aimed the rifles at them and others, completely ransacked the flat he had entered and destroyed its contents. He shipped many items through the windows, which he had smashed, and damaged a police car, which was hit by dumbbells that were thrown. Furthermore, although each case involving firearms is necessarily fact-specific, the sentence imposed was not out of kilter with other reported cases.
23. In our view, the judge took into account all relevant circumstances and his conclusion of a six year starting point, reduced to four years for the Appellant's early plea, cannot be said to be manifestly excessive or otherwise wrong.
24. In respect of the finding of dangerousness, Mr Shanahan submits that the pre-sentence report merely assesses the Appellant as posing a high risk of serious harm to members of the public, whereas section 226A requires that risk to arise, not from general offending, but from specified offences. Furthermore, the report refers to the Appellant having now engaged in addressing his abuse issues with a positive attitude. The psychiatrist's report does not diagnose a mental condition, such as a psychotic disorder, that would or might make the Appellant particularly prone to be dangerous as defined in the Act. The Appellant's previous convictions show that the only relevant serious offence was the attempted robbery, after which there was a gap of seven years of non-offending. The Appellant's record does not, Mr Shanahan suggests, support the finding that the Appellant poses a risk of serious harm to members of the public as a result of further specified offences.
25. However, again, the judge took into account all relevant matters in coming to his conclusion that the Appellant did pose the relevant risk as required by section 226A. Whilst no one was hurt in the index incident, the Appellant showed himself capable, when anxious and under the influence of drugs, of being threatening and opportunistic in selecting weapons upon which he might come. He was adamant that he was not going to be arrested by the police, and went as far as dry firing the rifle he did have. He threw large items out of the windows, at least reckless as to what was below. Although, again, he had not used the weapon, he had in his early life used a knife in an attempt to commit a post office robbery. The author of the pre-sentence report assessed the Appellant as being a risk of serious harm to the public. He has been violent since being detained. There is evidence that he has a severe problem with drink and drugs, which, if not addressed, may well lead to further incidents in the future. Despite the optimistic green shoots, one cannot have confidence that he will successfully address those problems in the near future.
26. In our view, there was sufficient evidence here upon which to make a finding of dangerousness. Despite Mr Shanahan's submission this morning, the judge was correct in not taking into account the administrative arrangements for release in respect of an extended sentence. The judge, again, took all relevant matters into account with regard to dangerousness. We do not consider that his approach was in any way wrong, or that his conclusion is one to which he was not entitled to come. Given the risk he had properly identified, the additional period of three years on licence to address that risk could not be regarded as arguably wrong, nor does Mr Shanahan suggest otherwise.
27. For those reasons, we dismiss this appeal.