England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		3 November 2017

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1. LORD JUSTICE HOLROYDE: On 29th August 2017, in the Crown Court at Inner London, Thomas Parish and Michael Redford, aged 19 and 24 respectively, pleaded guilty to an offence of conspiracy to transfer prohibited firearms, contrary to section 1(1) of the Criminal Law Act 1977. On 31st August 2017 Thomas Parish was sentenced to detention for 5 years in a young offender institution and Michael Redford was sentenced to 5 years 6 months' imprisonment.
2. It appears to Her Majesty's Attorney-General that those sentences were unduly lenient. He applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so the sentencing may be reviewed. We grant leave.
3. The relevant facts are summarised as follows in the reference. On 15th March 2017 the offenders travelled together by car from Farnborough to Slough. There they picked up three Atak eight-shot revolvers; two Ekol Arta five-shot revolvers; a total of 322 live rounds of ammunition, comprising 194 rounds which were suitable for use in the five-shot revolvers and 128 which were suitable for use in the eight-shot revolvers; and a single fired round.
4. Automatic number plate reader cameras showed that the offenders then travelled in convoy behind a white Mercedes, from Slough to London Bridge. At London Bridge, the time now being about 10.30 at night, armed police officers attempted to stop the offenders' vehicle. Parish was driving and Redford was in the front passenger seat. Parish drove through a red traffic signal and stopped. Redford left the vehicle and ran into London Bridge Station. He was not arrested until about eight days later. Parish was detained at the scene.
5. Police searched the car and recovered the firearms and ammunition to which we have referred from inside two distinctive plastic bags with a black and gold striped pattern. One of these bags was underneath the front passenger seat, the other was in the rear nearside footwell.
6. Examination of the revolvers showed that all five were prohibited weapons, within section 5(1)(aba) of the Firearms Act 1968. Given the calibre of ammunition which they fired they were said to be relatively low powered. They did however nonetheless discharge projectiles with lethal force.
7. The live rounds were, as we have said, all suitable for use in one or other of the two types of revolver. Fingerprints of both the offenders were found on both the inside and the outside of the plastic bag which was under the front passenger seat. Three of the revolvers were wrapped in tape. From that tape a DNA profile was recovered which matched a man to whom we will refer simply as "K". K was arrested in July 2017 by the National Crime Agency following the discovery of 79 handguns which had been concealed in engine blocks to be imported into the United Kingdom. When K was arrested he was in possession of keys, which fitted a trailer in Slough. Officers of the National Crime Agency arrested two men seen driving away from that trailer and nine Ekol Arta pistols were recovered on that occasion. They were contained in black and gold striped plastic bags, identical to the ones found when these offenders were stopped. In the trailer there were more black and gold plastic bags.
8. Reverting to the facts of the present case, Parish was interviewed under caution. His initial story was that he had been driving a friend called Michael Smith to London, so that Smith could collect some money which he was owed. Parish said that he would be paid £100 for doing this. He said he collected the money from an address in Bethnal Green and did not know how bags containing weapons had got into his vehicle. Later, he changed that story and said that Redford had brought the two bags into the car when they stopped in Bethnal Green. He said he did not know what was in the bags but assumed it was either drugs or money.
9. Redford, for his part, told the police before formal interview began that he was going to admit possession of the firearms. He did not however do so. Having been cautioned he answered "no comment" to all questions.
10. The offenders made their first appearance before the Crown Court on 19th April 2017. They were arraigned on an indictment charging them jointly with nine offences, contrary to section 16 of the Firearms Act 1968. Five of the counts alleged possession of a firearm with intent to endanger life, there being one count in relation to each of the revolvers recovered. The other four counts were of possession of ammunition with intent to endanger life, there being one count in relation to each of the different makes and calibres of cartridge which were recovered.
11. Both the offenders pleaded not guilty to all charges. By the time of that plea and trial preparation hearing, the fingerprint evidence had already been served. The issues were identified by counsel as follows. On behalf of Parish, it was said that he had no knowledge of the firearms and denied possession of them. He may have touched the plastic bag found in the passenger footwell during the police pursuit. Parish later went on to serve a defence statement in which again he denied possession of the firearms and ammunition. On behalf of Redford the issues were identified as being knowledge/possession. It was said by counsel on his behalf that his presence in the car was accepted, but the guns had nothing do with him and if any fingerprint of his was on the bag it was "inadvertent/innocent". Further pre-trial hearings took place on 4th May, 30th May and 6th June 2017. The trial was fixed for 29th August.
12. In June those representing Redford contacted the prosecution to enquire whether a plea to simple possession of the firearms would be acceptable. Unsurprisingly, they were told that it would not. Later in June, Redford's lawyers again contacted the prosecution, this time inquiring whether a plea of guilty to an offence or offences contrary to section 16A of the Firearms Act 1968, possession of the firearms with intent to cause fear of violence, would be acceptable. Again, they were told that it would not. Redford then served a defence statement in which he said that the firearms and ammunition found in the car had been in the sole possession of Parish. Thus in the run up to the trial, both offenders were denying guilt of any offence and to an extent blaming each other.
13. On the day fixed for trial it was known to the parties that the Crown intended to apply for leave to amend the indictment by adding counts of simple possession of each of the firearms and of the ammunition. It was clear to all that guilty pleas to those counts would not be acceptable, but they would clearly have served the purpose of spelling out precisely what was to be in issue at trial. Later in the day the prosecution were given leave to amend the indictment by adding count 10, the charge of conspiracy to transfer prohibited firearms. The offenders were arraigned on that count and pleaded guilty.
14. The circumstances surrounding that amendment and arraignment are important. Unfortunately, they were not set out with complete clarity in the Reference. Having heard helpful oral submissions from all counsel, we now understand the following to have occurred. In the course of the morning, as is often the case, there were discussions between counsel, on a provisional basis, as to whether possible guilty pleas to possible offences would be acceptable by the prosecution. In the course of that process, but before any decision had been made even as to a specific charge which might be added to the indictment, still less as to whether guilty pleas would be entered to it, it appears that there was a hearing before the learned judge.
15. At that hearing counsel for one of the offenders enquired of the judge, in what are acknowledged to have been very general terms, whether the judge would afford full credit if a new count was, for the first time, added to the indictment and the offenders pleaded guilty to it. The learned judge indicated that in such circumstances full credit would be given. Discussions between counsel thereafter continued. The end result of those discussions was that it became apparent, that if the offenders were to plead to what became count 10, their pleas would be accepted and other counts would in due course be left to lie on the file. That is what happened.
16. We pause to observe, with respect to the learned judge, that this was a highly unsatisfactory position. This was not an application for a Goodyear indication, which would have been addressed with appropriate formality. Instead it was a wholly unspecific enquiry, about whether full credit would be given for any plea to any new count. On the face of it that broad enquiry could have encompassed a plea to a new count of simple possession, even though the offenders had been denying possession for the last several months.
17. It seems to us that in those circumstances it was simply wrong for the judge, with all respect to him, to give the indication he did, in ignorance of what precisely might happen. However, he did give that indication. He gave it in response to the question asked of him of defence counsel. He gave it without inviting prosecuting counsel to make any submission or to contribute one way or the other. In the event, prosecuting counsel did not say anything at the stage when that indication was given.
18. Following the amendment of the indictment and the guilty pleas to which we have referred, the case was adjourned for a short time, in particular to allow an opportunity for those representing Parish to obtain character references and for the prosecution to provide a written note for sentencing. Such a note was provided. It helpfully set out the relevant considerations, but it said nothing at all on the issue of credit for guilty pleas. We have seen a sentencing note submitted in advance of the sentencing hearing by Mr Reiz, who then, as now, acted for Parish. In that note he submitted that in the circumstances in which the pleas had been entered full credit for them should be given. There does not appear to have been any explicit contradiction of that stance by prosecuting counsel, who perhaps felt that the matter had happened without any opportunity on his part to contribute and that it was too late now for him to say anything about it.
19. We come then to the sentencing hearing on 31st August 2017. Parish had been just 19 at the time of the offence. He had three convictions for four offences, none of which was particularly serious and none of which meaningfully aggravated his culpability for the present offence. He was able to put before the court a number of impressive character references, including from family and friends. On his behalf, it was submitted in mitigation that he had agreed to transfer the firearms because it represented a quick and easy opportunity to make some money. Redford was 24 at the time of the offence. His criminal record was markedly worse. He had 71 convictions, for offences predominantly of dishonesty. He had in 2013 received a sentence of 3 years' detention for an offence of conspiracy to burgle. He had received a further sentence of 18 months' imprisonment in April 2016 for a further offence of conspiracy to burgle and he was in due course to receive a sentence of imprisonment for handling stolen goods. He was on licence at the time when the offence with which we are concerned was committed. On his behalf also it was submitted that he had committed the offence because it was an opportunity to make some money.
20. At the sentencing hearing prosecuting counsel referred the learned judge to the familiar case of R v Avis [1998] 1 Cr App R 420 and to Attorney-General's References Nos 128-141 of 2015 and Nos 8-10 of 2016 [2016] EWCA Crim 54, to which we shall hereafter refer for convenience as "Stephenson". The case of Stephenson included consideration of the cases of a number of offenders, and prosecuting counsel particularly drew the judge's attention to the sentence of 16 years' imprisonment which the Court of Appeal had concluded would have been appropriate after trial for the offender, Ducram. He took the judge to what was said by the court at paragraph 7 of Stephenson, and submitted that in the terminology used in that paragraph, these offenders were facilitators who had played a significant role, putting five prohibited weapons and over 300 live rounds into the hands of criminals knowing that the weapons would be used for the purposes of crime. Mr Reiz, in addition to representing Parish in these proceedings, had been involved, we understand, on behalf of one of the offenders in the case of Stephenson. He therefore had particular knowledge of the case and he draw to the judge's attention a number of features which he submitted made Ducram an inappropriate comparator in the present case. He made submissions about the comparatively low power of the revolvers, the character references and the youth and immaturity of Parish. He pointed out that this would be Parish's first custodial sentence. He invited the judge to treat Parish as one who had been performing a limited function under direction.
21. On behalf of Redford, Mr Morris submitted similarly that the role was a limited one, fairly described as a "one-off courier". He submitted that in terms of paragraph 7 of Stephenson, Redford should be treated as one of those who assisted in putting guns into circulation and so should be sentenced in the range of 8 to 12 years before credit was given for his plea.
22. The learned judge, in his sentencing remarks, indicated that he had taken into consideration the testimonials and the letter which Redford had written to the court. He considered the questions posed by Avis and identified the following features as relevant:

"(i) What sort of weapon was involved? In this case five prohibited weapons and three hundred and twenty-two live rounds of ammunition for use with the guns.

(ii) What use, if any, was made of the firearms? The weapons and ammunition were being delivered by you to other criminals. What precisely they were going to do with them is unknown but I assume it would be unlawful.

(iii) With what, if any, intention did the defendants possess the weapons? Your intention was to provide the weapons and ammunition to other criminals for them to use in the furtherance of crime in return for a reward.

(iv) What are the defendants' records? I have dealt with this but neither of you, I repeat, has a previous conviction relating to firearms.

(v) Where was the firearm discharged and who and how many were exposed to danger by its use. The answer to this is unknown. It is known that one fired cartridge was found within the ammunition recovered so this is neutral, as I have already said.

(vi) Was any injury or damage caused by its discharge and, if so, how serious was it? Again, the answer to that is unknown so that is also neutral."

23. The learned judge went on to refer to Stephenson. In passing sentence, at page 17B, he said:

"You both knew that these were firearms and ammunition that you were conveying and that they were capable of being used and were going to be used by someone, not just for private collection but as part of a criminal enterprise. I accept that you were carriers - mules you would be called if one was talking about drugs - but you were the people who assist the real villains of society to carry on their evil enterprises. Without people like you, firearms would not move as freely around the streets as they do. You are the otherwise innocent stooges who have been caught while the real villains carry on in the background until somebody gets shot, then it is very much in the foreground.

I accept, because it was a one-off exercise on your part, you were not facilitators and I can distinguish you from the case of Ducram to which I have been referred in the case of Stephenson. But you undoubtedly assisted the suppliers and recipients of these firearms by transporting them."

At page 17G the judge continued:

"Because of your youth and personal mitigation, bearing in mind what the Lord Chief Justice said in the case of Stephenson, that the starting point could not be less than 8 years, and also bearing in mind the number of firearms and quantity of ammunition involved, I have taken a starting point of 9 years for each of you as I consider your criminality in the offence to be equal. Taking into account your guilty plea to this charge at the first opportunity, that is to say when it was put on the indictment on Tuesday, I am prepared in each case to reduce that sentence by one-third to 6 years.

You, Parish, are lightly convicted and are only 19 years old. I am therefore prepared to reduce your sentence by a further 12 months to 5 years. Any time you have spent on remand will count towards that sentence.

You, Redford, are 24 and have serious previous convictions although not for firearms offences. For your personal mitigation I am prepared to make a reduction from the sentence by 6 months. That makes 5 years and 6 months. Again, any time spent on remand will count towards that sentence."

24. On behalf of the Attorney General, Mr Polnay submits that the sentences were unduly lenient. He identifies the following aggravating features: the number of firearms; the quantity of ammunition; the fact that the offenders were involved in distributing both firearms and ammunition together; the fact that the firearms were of a prohibited type for which there is no lawful use; the proximity of this activity to the source of importation, as evident from the circumstances we have summarised relating to K; the fact that Redford was on licence; and the fact that both offenders acted for financial gain.
25. As to mitigating factors, he identified the fact that the weapons were neither semi-automatic nor high powered, Parish's age and comparative lack of previous convictions, and the offenders' pleas of guilty. He referred to case law emphasising the gravity of gun crime and the need for deterrent and punitive sentencing. He cited passages from Stephenson. In particular, he referred to the following passages from the judgment given by the Lord Chief Justice in that case. In paragraph 7 the court had identified three categories of offender and in relation to the least serious category the Lord Chief Justice said that:

"The role played by those who assisted in these transactions varied, but as Parliament has stipulated a minimum sentence of 5 years for those in possession of a gun, we consider that it was inappropriate to pass sentences with a starting point of less than 8 years for those who assisted in putting guns into circulation. Their criminality lay in assisting in putting guns and lethal ammunition into the hands of a purchaser. Sentences materially greater were required in cases where the assistance was significant; in the present case the sentences should have ranged from 12 to 8 years, depending on the role they played and any previous association with guns."

26. Helpful written responses were submitted to the court on behalf of each offender contending that the sentences may well have been lenient but that they were not unduly lenient. On behalf of each offender, it is submitted that the judge's starting point of 9 years was appropriate because the circumstances fell within the category identified by the Lord Chief Justice in Stephenson, to which we have just referred.
27. A distinct issue arises as to the credit given for the guilty pleas. Mr Polnay, in his written submissions, contended that full credit should not have been given having regard to the circumstances in which the pleas were entered. Counsel on behalf of both offenders submit that the giving of full credit was within the discretion of the judge. In particular, it is submitted on behalf of the offenders that the circumstances in which the indication was given by the judge amounted to an incentive to the offenders to enter the guilty pleas which they then did enter.
28. The overall submission, on behalf of the Attorney-General, can be summarised as follows and serves as a useful introduction to our consideration of the issues. First, Mr Polnay argues that having regard to the number of weapons, the quantity of ammunition and the fact that transfer was being made for financial reward to criminals the judge should have started higher than a 9-year sentence. Secondly, the judge was then incorrect to allow full credit for pleas of guilty entered on the day of trial, given that the offenders had up to that point, including in their defence statements, denied even possession of the weapons. In addition, on this second issue, Mr Polnay points out, correctly, that the judge should have made any reduction for mitigating factors before applying credit for guilty plea and not, as he in fact did, the other way round. Thirdly, Mr Polnay submits that insufficient weight was given to the fact that Redford offended whilst on licence.
29. Stepping back from the details Mr Polnay makes this simple submission. Had either of these offenders been found in simple possession of a single prohibited firearm, even unaccompanied by ammunition, the effect of the relevant statutory provisions would have been a mandatory minimum sentence of 5 years. For what they in fact did in relation to numerous weapons and rounds of ammunition, they received sentences which were not significantly greater than that mandatory minimum.
30. We begin by reminding ourselves that in cases to which section 51A of the Firearms Act 1968 applies, Parliament has indeed stipulated that the court must impose a minimum sentence of 5 years' custody, unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify its not doing so. It is to be noted that the offences to which section 51A applies include simple possession of a prohibited firearm and that no reduction may be made for a guilty plea, if it would reduce the sentence below the minimum level of 5 years. Section 51A applies to a substantive offence of transferring a prohibited firearm, contrary to section 5(2A) of the 1968 Act. It does not apply to an offence of conspiracy to transfer a prohibited firearm. However, as this court has made clear in a number of cases, section 51A is a Parliamentary indication of public concern. The reason for that public concern is obvious. It was stated as follows, by Lord Judge (the then Lord Chief Justice) in the case of Wilkinson [2009] EWCA Crim 1925 at paragraph 2:

"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."

31. That same public concern has a considerable impact on sentences for an offence of conspiracy such as this. The judge was therefore correct for say in his sentencing remarks that he would bear that point in mind.
32. In Stephenson, in which all the offenders had either pleaded guilty to or been convicted of offences of conspiracy to transfer prohibited weapons, this court stated that the sentences for such offences must reflect the hierarchy of the supply enterprise, the role played in individual transactions and any previous conviction in relation to guns.
33. In the circumstances of that case the court identified three levels of the hierarchy. The leaders of the criminal enterprise which was in the business of supplying guns and lethal ammunition, for whom a very long term of imprisonment was required, with 25 years not to be regarded as a maximum. Secondly, those who sought to buy a gun and ammunition, by clear inference for the purpose of killing, wounding or terrorising in the course of crime, for whom sentences in the region of 15 years were appropriate even if there had been no previous firearms related convictions. Thirdly, those who assisted in the transactions, for whom a sentence in the range of 8 to 12 years would be appropriate as we have already cited.
34. Counsel in their very helpful oral submissions to us this morning have invited consideration to the sentences held to be appropriate in relation to a number of the individual offenders in the case of Stephenson. As counsel already recognised, every case is fact-specific and there is a limit to how much the court can be assisted by looking at the positions of other individual offenders. We should however mention the offender, Ducram, who was referred to by the judge in his sentencing remarks. He had some previous conviction which were not regarded as aggravating his offending. He was in close contact with the principal offenders and was highly trusted by them. He had stored a gun overnight at his home and then delivered it to a purchaser. The court regarded the appropriate sentence in his case, after a trial, as one of 16 years.
35. We would also mention the case of the offender, Ghalib. He had been involved in a transaction relating to a particularly lethal weapon, a sub-machine pistol and ammunition. He had many previous convictions including for supplying drugs but none in relation to firearms. The court found that in his case the appropriate sentence after trial should have been 8 years' imprisonment as follows:

"In our judgement, the appropriate sentence for the firearms offence should have been 8 years as he was knowingly involved in a transaction that would put a gun on the street, though he did not know that the firearm was a particularly dangerous weapon capable of automatic fire and played a limited role."

36. We do not think it necessary to go into the details of the cases of other offenders, but we have taken into account the submissions made by counsel.
37. We accept that in the present case the offenders, neither of whom has any firearm-related previous conviction, were engaged as couriers to deliver the consignment of revolvers and ammunition. They acted under direction for financial reward measured in hundreds rather than thousands of pounds. We think it reasonable to infer that they were under the watchful supervision of those in the Mercedes. They were not therefore in the position of being highly trusted by the principal offenders and on that basis alone their positions can be distinguished from that of the offender Ducram in the case of Stephenson.
38. Further, their role in delivering the guns and ammunition was one step further removed from criminal use of any gun than a purchaser would be, and they can therefore be distinguished from the purchasers for whom a sentence in the region of 15 years would be appropriate. However, their role was a very important one, because they were delivering the weaponry which was plainly destined for use in criminal activity. By their pleas they admitted relevant knowledge, and we bear in mind that the packages containing this weighty consignment of guns and ammunition were on the floor of the car in which the offenders were travelling. They must have known that the only reason anyone would want to buy these weapons and ammunition would be so that criminals could use them to kill, wound or terrorise in the course of crime. Most importantly, they were delivering no fewer than five revolvers and 322 live rounds of ammunition. True it is that that within the overall scale of firearms, these were regarded as being comparatively low powered; but they were nonetheless lethal weapons, capable of killing with any one of the 322 bullets. The number of prohibited firearms and the quantity of live ammunition are therefore gravely aggravating features because each gun and each bullet has the potential to kill or wound in the course of crime.
39. We acknowledge the point made by counsel on behalf of the offenders, that in the context of offences which attract the statutory minimum sentence, the effect of the statutory provisions may be that an offender whose crime is more serious, but who pleads guilty, receives a sentence which is not much different from that of a less serious offender who must receive the minimum 5-year sentence. But here, the quantity of guns and ammunition is such that a substantial sentence would have been necessary after trial. In our judgment, the appropriate sentence after trial for these offenders was at the upper end of the range specified for the third category in Stephenson.
40. We next consider the personal mitigation. With respect to the learned judge, he was wrong to leave this consideration until last. The correct sequence is to determine what would be the appropriate sentence after trial, taking into account all aggravating and mitigating features, and then, as a final step, to make any reduction which is appropriate for a guilty plea.
41. We agree with the judge that there was personal mitigation available to both offenders though it could carry only limited weight in the context such serious offending. We also agree with the judge that Parish had rather stronger personal mitigation than did his older and more heavily convicted co-accused who was on licence at the time.
42. Taking into account all the aggravating and mitigating features, we conclude that if these offenders had contested count 10 at trial, the appropriate sentences would have been not less than 11 years in Parish's case, and not less than 12 years in Redford's case. It follows that the judge took far too low a sentence after trial when he started at 9 years and reduced that term by 12 months in Parish's case and by 6 months in Redford's case.
43. We turn next to consider what reduction should have been made from those sentences to reflect the guilty pleas. The Sentencing Council have recently introduced a Definitive Guideline on this topic and we hope and expect that application of it will help to avoid the unsatisfactory situation which, as we have indicated, arose in this case. That guideline however does not apply here because of the dates on which these offenders made their first appearance before the court. The judge should therefore have had in mind section 144 of the Criminal Justice Act 2003, the earlier Definitive Guideline issued in 2007 by the Sentencing Guidelines Council and the guidance given by this court in R v Caley & Ors [2012] EWCA Crim 2821.
44. Section 144 provides, so far as material:

"(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence ... a court must take into account—

(a)the stage in the proceedings ... at which the offender indicated his intention to plead guilty, and

(b)the circumstances in which this indication was given."

45. The applicable sentencing guideline makes clear at paragraph 4.3, that the level of reduction should reflect the stage at which the offender indicated a willingness to admit guilt to the offence for which he is eventually sentenced. The guideline points out that the largest recommended reduction will not normally be given unless the offender indicates his willingness to admit guilt at the first reasonable opportunity, examples being given in annex 1 of when that opportunity would arise. The guideline goes on to indicate that where the admission of guilt comes later than the first reasonable opportunity, the reduction for a guilty plea will normally be less than one-third.
46. Annex 1 says at paragraph 3 that the first reasonable opportunity may be the first time that a defendant appears before the court and has the opportunity to plead guilty, but the court may consider that it would be reasonable to have expected an indication of willingness at an earlier stage - perhaps while under interview. The court referred to that guideline in Caley and at paragraph 14, said:

"There is sometimes confusion in argument between (i) the first reasonable opportunity for the defendant to indicate his guilt and (ii) the opportunity for his lawyers to assess the strength of the case against him and to advise him on it. It is obvious that the second depends on the evidence being assembled and served. The first, however, frequently does not."

The court went on to say that in many cases, whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence, he does not require it in order to know whether he is guilty or not.

47. In the present case, neither offender gave any meaningful indication of any level of guilt until the day of trial. They knew what they had done. They would no doubt have needed legal advice as to the legal ingredients of the offences with which they were charged or might be charged. But they did not need a lawyer to advise them that they had conveyed a number of revolvers and a quantity of ammunition to London for reward. Far from indicating any guilt, they denied even knowledge or possession and sought to blame each other. The closest Redford came to making any admission was to enquire whether the prosecution would accept a guilty plea which in fact significantly understated his true criminality. Parish did not initiate any discussion at all. In those circumstances, the mere fact that count 10 was only added on the day of trial does not mean that full credit must necessarily be given. In our judgment, each offender could reasonably have been expected to have indicated, at a much earlier stage, that they had knowingly carried guns and ammunition. They were not of course obliged to make any such admission; but having chosen not do so, they could not, in our view, expect to receive full credit when they eventually pleaded guilty to a new count containing a specific legal description of their conduct in terms which included the element of possession which they had hitherto denied.
48. We recognise that the judge, applying the former Sentencing Guideline, had a discretion. But in our view, no proper exercise of that discretion could have led him to give full credit. We do not think any reduction greater than 20%, or at the very most 25%, could properly be given.
49. We must however now turn to consider whether in the particular circumstances of this case, these offenders should nonetheless receive full credit because the judge told them they would and they entered their guilty pleas on that basis and in that understanding.
50. A number of decisions of this court have made it clear that a judicial indication as to level of sentencing is not in itself a necessary bar to this court subsequently deciding that a sentence passed in accordance with that indication was unduly lenient. However, when a judicial indication is given which presages an unduly lenient sentence, prosecuting counsel has an important role.
51. In Attorney General's References Nos 8, 9 and 10 of 2002 [2003] 1 Cr App R(S) 272, this court said:

"We consider that where an indication is given by a trial judge as to the level of sentencing, and that indication is one which prosecuting counsel consider to be inappropriate, or would have considered to be inappropriate, if he or she had applied his mind to it, prosecuting counsel should register dissent and should invite the attention of the court to any relevant authorities ... otherwise if the offender does act to his detriment on the indication which has been given, this court may find it difficult to intervene in response to a Reference made by the Attorney General."

In Attorney General's Reference No 19 of 2004 [2004] EWCA Crim 1239, this court confirmed that principle, saying at paragraph 21:

"It is undoubtedly right that if the prosecution has acted in ways in which it could be said that it had played a part in giving the offender the relevant expectation, then clearly it would not be appropriate for this court to permit the Attorney General to argue that the sentence which was imposed, partly as a result of what the prosecution had said or done, was unduly lenient. But we have, it seems to us, to look in the light of that principle at the facts of each particular case..."

52. Applying those principles to the present case, we reach the following views. First, as we have said, we think it very regrettable that the indication was given in response to a wholly non-specific enquiry about any charge which might at some future stage be added to the indictment.
53. Next, the circumstances in which that indication was given placed prosecuting counsel in a difficult position. Not having been invited to make any submission, and the indication having immediately been given in response to defence counsel's enquiry, we can well understand why counsel may have felt unable then to intervene. Next, we can also understand why over the next two days counsel continued to feel unable to intervene, though we do note in this regard that Mr Reiz's sentencing note spelled out in black and white, that the court would be invited to give full credit for the guilty plea.
54. Lastly, but most importantly, we see considerable force in defence counsel's submission that in the particular circumstances of this case the indication provided some incentive for these offenders to plead guilty. We have reflected carefully on this point. We bear very much in mind these were offenders who had delayed making any admission whatsoever, until the door of the court on the day of trial. Nonetheless, it must, in our judgment, be recognised that the count to which they ultimately pleaded guilty did differ materially from the counts which up to that point had been on the indictment, in particular because count 10, in contrast to counts 1 - 9, did not allege an intent to endanger life.
55. With some reluctance we feel ourselves driven to the conclusion that in the particular circumstances of this case, it would be an injustice for this court now to deprive the offenders of the full credit which they were afforded by the judge. We repeat our expression of hope, that proper application of the current Sentencing Guideline on Reductions for a Guilty Plea will avoid any repetition of the situation which arose here.
56. Drawing these threads together our conclusions are as follows. The sentences imposed below did not properly reflect the seriousness of the crime. We are satisfied that in each case they were unduly lenient. In our judgment, the sentence in Parish's case should not have been less than 11 years after trial. Giving him full credit for his plea, for the specific reasons which we have explained, that results in a sentence of 7 years 4 months.
57. In Redford's case the sentence should not have been less than 12 years after trial. Granting him also full credit for his plea, that produces a sentence of 8 years.
58. We therefore grant the Reference of Her Majesty's Attorney General. We quash the sentences imposed below. In the case of Parish, we substitute a sentence of detention in a young offender institution for 7 years 4 months, and in the case of Redford, we quash the sentence imposed below and substitute for it a sentence of 8 years' imprisonment.