England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		16th November 2017

MR JUSTICE SPENCER:

1. On 26^th April 2017 in the Crown Court at Blackfriars the appellant pleaded guilty to an offence of possessing a prohibited firearm (a pistol), contrary to section 5(1)(aba) of the Firearms Act 1968 (count 1) and to possessing ammunition without a firearm certificate, particularised as seven live cartridges, contrary to section 1(1)(b) of the Act (count 2). The offence in count 1 attracted the application of the mandatory minimum sentence provisions of section 51A of the Act. The court was therefore obliged to impose the minimum sentence of five years' imprisonment, unless it was of the opinion that there were exceptional circumstances relating to the offence or to the offender which justified its not doing so. His Honour Judge Clarke QC found that there were no exceptional circumstances and imposed the minimum term of five years' imprisonment. On count 2 he imposed a concurrent sentence of two years' imprisonment.
2. The appellant appeals against sentence by leave of the single judge. The sole ground of appeal is that the judge was wrong to find that there were no exceptional circumstances.
3. The appellant was 26 years old at the date of the offences; he is now 27. On Saturday 25^th February 2017, police officers executed a warrant at the appellant's home address – a warrant granted under section 46 of the Firearms Act 1968. They knocked at the front door. The appellant asked who it was. He did not open the door. Fearing that evidence would be lost, the police officers then entered the premises by force.
4. Inside they found the appellant alone in one of the bedrooms. He was shaking and extremely nervous. He kept looking out of the window. Another man was seated in the living room. Two other men had escaped through a window and were never identified. We observe that they no doubt escaped during the time when the appellant refrained from opening the door to the police. The appellant declined to name these men. When the police officers looked through the bedroom window, they saw a handgun lying on the grass below, which was part of a children's play area. There were five unfired cartridges in the magazine of the gun. The premises were searched. In a drawer in the bedroom where the appellant had been seen, the police found two more unfired cartridges. They were in a small plastic self-seal bag under some clothes. They were of a different calibre and did not fit the handgun found outside.
5. The gun was forensically examined. It was a .32 calibre automatic German Walther model 4 self-loading pistol. It had a broken firing pin, but when that was replaced it was found to be in working order. The five cartridges in the magazine fitted the gun.
6. The appellant was arrested and interviewed. He gave a detailed prepared statement. In opening the facts, prosecuting counsel summarised that statement for the judge, but it is regrettable that important parts of it were not mentioned. We infer that the judge had not in fact seen the statement, judging by some of the observations he later made. Specifically, the judge was not told of the admissions made by the appellant that these men had been using his flat for some time for drug dealing. We shall return to this aspect of the case. In summary, the appellant said in his statement that the two men who had escaped through the window had given him the gun only moments before they escaped, when they realised that the police were at the door. The men had told him to get rid of the gun, so he had thrown it out of the window. He refused to name the two men who had escaped. He said that he was afraid for the safety of himself and his family. He said that he had been assaulted by them twice in the past, and said that on one occasion he had been shot with an air rifle.
7. The judge was informed that the explanation given by the appellant in interview was the basis on which his guilty pleas were entered, although there was no written basis. The judge enquired what information the prosecution had about these other two men. Prosecuting counsel confirmed that they had exited the premises but had not been identified. The other man who had been present in the flat had told the police in his interview that all four of them had been present in the flat from the early afternoon watching football and "hanging out". Prosecuting counsel confirmed that the firearms warrant related to the appellant's premises and said that if the appellant were to give evidence, the Crown would want to explore some matters with him in cross-examination. Prosecuting counsel did not suggest that the Crown took issue with the factual basis of plea.
8. We have a transcript of counsel's mitigation which was ordered by the single judge because it seemed difficult to ascertain precisely the factual basis on which the court had proceeded. In the light of her grounds of appeal, we were surprised to find that Miss Langevad made no submission to the judge that there were exceptional circumstances for not imposing the minimum term of five years, nor did she invite the judge to find that there were such circumstances. It seems to have been accepted that the minimum term was unavoidable. She emphasised the appellant's effective good character. He had only one previous conviction, for possessing cannabis a month or so before the present offences, for which he had received a conditional discharge. The judge said that he would treat him as a person of good character. He was a qualified electrician and had worked since he left college in 2012. He had a 2 year old son. It was submitted that the appellant had been put under considerable pressure by these two men. There had been threats in the past, including the occasion when he claimed that he had been shot in the leg for not allowing them to attend his premises. He knew what they were capable of. He wished he had never become involved, but when the gun was handed to him he felt he had no choice but to throw it out of the window. Counsel said in terms that she did not think that the case would fall under the exception. She said that the appellant and his family fully understood that it was a case where even a guilty plea would not save him from the minimum term.
9. In passing sentence the judge said that he was entirely satisfied that there were no exceptional circumstances. He was also entirely satisfied that the appellant was in possession of the handgun for no more than seconds. It was plain that the appellant had been a victim of the people he associated with on occasions, but it was a social association, said the judge, not a criminal association. He was a victim of their actions. The judge said that he did not need to know what the explanation was for the ammunition found in the drawer in the bedroom, because he did not propose to add to the sentence for that offence. He said that his hands were tied and he had no alternative but to pass a sentence of five years' imprisonment.
10. In her grounds of appeal and in her oral submissions this morning, Miss Langevad contends that there were in fact exceptional circumstances, even though she did not advance them to the judge. She relies on the following. The appellant was a man of effective good character who had been threatened. The judge accepted that the firearm was in his possession for only a matter of seconds. The gun was incapable of being fired in its condition at the time of the offence. There was no suggestion that the appellant knew it was loaded with ammunition. The judge accepted that he was a victim of the people he associated with. He had been threatened in the past and was frightened of them.
11. Miss Langevad also relies on the analysis of the minimum term provisions in R v Rehman and Wood [2005] EWCA Crim 2056; [2006] 1 Cr App R(S) 77, where Lord Woolf CJ said at [16]:

"… It is clear in our judgment that, read in the context to which we have referred, the circumstances are exceptional for the purposes of section 51A(2) if it would mean that to impose five years' imprisonment would result in an arbitrary and disproportionate sentence."

The court also said that it was necessary to look at the case as a whole. Sometimes there would be a single isolated factor that would amount to exceptional circumstances, but in other cases it would be the collective impact of all the relevant circumstances. The Court of Appeal would only interfere if it was shown that the judge was clearly wrong in declining to find exceptional circumstances.

12. It was with the submission contained in the grounds of appeal that the court should consider whether this was an arbitrary and disproportionate sentence in mind that the single judge granted leave, so that the full court could consider whether the circumstances in this case, viewed cumulatively, were truly exceptional. He directed that the prosecution should serve a respondent's notice.
13. In the respondent's notice it is said that, although the judge found as a fact that the appellant was in possession of the handgun only for seconds and had been a victim of the people with whom he associated socially, those facts had not been agreed by the Crown and the appellant did not give evidence. It was said in the respondent's notice that the appellant accepted through counsel that over a period of time he had allowed others to use his home as a base for criminal activity, but there was no evidence to support the assertion that he had previously been shot. When he disposed of the loaded firearm out of the window, the police were at the door of his flat forcing entry.
14. We have to say that it was unsatisfactory that the factual basis for sentence was not established in accordance with the procedure laid down by this court in R v Rogers [2016] EWCA Crim 801; [2016] 2 Cr App R (S) 36. At [121] Lord Thomas CJ said:

"In our judgment the procedure should follow that of a Newton hearing. When a defendant wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his advocate. The prosecution should then state whether they are agreed or not. If they are not agreed, then the defendant can then decide whether to seek a hearing, with the consequence that if he is disbelieved he will lose some of the credit to which he would otherwise be entitled. If the circumstances are agreed by the prosecution, but the judge does not approve that agreement, then the defendant must decide whether he wants a hearing. As was explained in Lashari [2010] EWCA Crim 1504, if a hearing takes place, then the judge must determine the matters to the criminal standard of proof and the burden is on the Crown to disprove the defendant's account of the circumstance in which he acquired the firearm. If the Crown fails to do so, the judge must proceed on the basis the defendant's version is correct. It does not, of course, follow that the judge, even if he accepts the defendant's version of events, will find that it amounts to exceptional circumstances. The hurdle for the defendant, in establishing exceptional circumstances, remains a high one."

We note that those important observations by the Lord Chief Justice do not seem to have been given the publicity which they merit. Although referred to in Archbold 2018 and in Banks on Sentence, in connection with exceptionl circumstances, we note that in the 2018 edition of Blackstone's Criminal Practice the decision is not referred to in the immediate context of how the court should approach the issue of exceptional circumstances in a case such as this.

15. Here it was never even made clear to the judge that he was being asked to find exceptional circumstances. Nor did the prosecution make clear that any part of the appellant's account was challenged. Had the matter been dealt with in accordance with the guidance in Rogers, the judge would no doubt have wanted to explore rather more closely some of the assertions being made.
16. Nevertheless, we must proceed on the basis of the findings of fact which the judge made, namely: first, that the appellant was in possession of the firearm for no more than seconds; and second, that the appellant was the victim of the actions of people he associated with but it was not a criminal association.
17. The other material parts of the appellant's statement which were not referred to in the court below, to which we said we would return, included the following:

"The flat I live in is on a big council estate known for crime. For the last three years I have been bullied but too scared of them to tell the police. I have known these people for a few years and they totally intimidate me, giving me ultimatums to do things like let them smoke drugs in my flat, keep drugs in my flat, they have used my flat as a safe house to distribute drugs. I have tried to say no to them on a large number of occasions and they either threaten me or my dad, saying 'You won't see your little boy again …' This situation has totally petrified me. Yesterday was the first time I had seen a gun in my flat and I accept I threw it out my window. As I was so scared I just put it out there. I do not get involved in any gang issues. As I state, I work Monday to Friday, but I am made to leave my key behind for them to use when I am not there. I have previously been slashed on the arm and shot in my leg with an airgun which made me go to hospital. Even then I left going to hospital till a week later through fear. This resulted in the pellets left in my leg."

We observe that, had the appellant been charged with permitting his premises to be used for the supply of drugs, he would have had no defence of duress. We are concerned that this part of the background to the present submission of exceptional circumstances is something of which the judge was unaware. It may be that what the appellant said about innocent association was accurate insofar as the day in question was concerned, but as for the previous weeks and months, a rather different picture emerges from the prepared statement when it is considered in full.

18. As this court made clear in Rogers at [129], the approach to exceptional circumstances needs to be conducted in a structured manner in accordance with the statute and the principles set out in R v Avis [1998] 1 Cr App R(S) 420 and R v Rehman and Wood. We address the four questions posed in Avis:

1. What sort of weapon was it? It was a loaded pistol which could be fired, once the broken pin was replaced. It was potentially lethal.

2. What use was made of the weapon? The appellant had it in his hands only for seconds before throwing it out of the window. We observe, however, that below the window was a children's play area; but for the swift action of the police in recovering it, the firearm could very well have come into the hands of children or into the hands of criminals.

3. With what intention did the appellant possess the weapon? His intention was not to use it but to dispose of it immediately, on the instructions of the men who had given it to him, so that it would not fall into the hands of the police.

4. What is the appellant's record? He was effectively of good character.

19. As the single judge rightly observed in granting leave, it is important that the courts do not undermine the intention of Parliament by accepting too readily in cases of this kind that the circumstances of a particular offence or offender are exceptional and that the minimum sentence would be unjust. It must also be borne in mind that, as this court has said, the fact that an offender is subjected to pressure and threats cannot in itself be regarded as unusual or exceptional: see Attorney General's Reference No 37 of 2013 (R v Culpeper) [2013] EWCA Crim 1466; [2014] 1 Cr App R(S) 62. In that case, as police officers entered the house to execute a search warrant relating to the suspected supply of drugs, the offender ran off. When the police chased him, he threw to the ground a pistol loaded with five rounds of ammunition. His basis of plea, which the judge accepted, was that he was in debt due to his ecstasy addiction. His suppliers had threatened to harm him and his partner if he did not agree to allow their home to be used to grow cannabis plants and to store the gun and ammunition. He was punched and agreed out of fear. He said that he could not name those who had given him the gun because they were dangerous and would harm his family if he did. He had stored the gun for about ten days. The judge found that his account, his long-standing depression and his guilty plea amounted to exceptional circumstances and imposed a sentence of two years' imprisonment. This court found that the judge was in error and, on the application of the Attorney General, substituted the minimum term of five years' imprisonment. The court observed that to conclude that pressure brought to bear on the offender amounted to exceptional circumstances, even in combination with the other factors, would in large measure blunt section 51A, contrary to the scheme of deterrent sentencing for which Parliament had made provision and which the courts had repeatedly emphasised was necessary.
20. That case was plainly more serious than the present case in that the offender had stored the gun for ten days. Here the possession of the gun was fleeting. That is certainly a factor which has been recognised as being capable, at least in combination with other factors, of amounting to or contributing to exceptional circumstances: see R v Moffat [2014] EWCA Crim 332; [2014] 2 Cr App R(S) 37. Possession merely with an intention to dispose of the firearm may also be capable of amounting to or contributing to exceptional circumstances: see R v Harrison [2006] EWCA Crim 345; [2006] 2 Cr App R(S) 56. In that case police officers stopped the defendant's car and found that he was in possession of a handgun and live ammunition. He was sentenced on the basis that he was on his way to dispose of the gun by throwing it into a lake. It was accepted that he intended to remove the gun permanently from circulation and that the gun and ammunition came into his possession only that day. The judge imposed the minimum term of five years' imprisonment. On appeal this court substituted a sentence of two years' imprisonment.
21. In the present case we think that it is appropriate and important to focus on the nature and outcome of the appellant's possession of the firearm, rather than merely its fleeting duration. As we have emphasised, the judge was never made aware of the full background of the appellant's relationship with the two men, and the use he allowed them to make of his flat. Whilst their association that afternoon may have been innocent rather than criminal, as the judge accepted, the appellant knew perfectly well the sort of men with whom he was associating. He was allowing them to use his flat as a safe house for drug dealing. If he was so frightened of these men and their power over him, one might have expected him to be almost relieved to hear the police at the door.

22. We will assume, as the judge did, that the appellant's account is truthful, and that he was handed the gun by one of the men just before they left the flat by climbing over the balcony. Rather than throwing the gun out of the window, he could simply have put it down on the floor so that when the police forced an entry they could recover it without any risk of its falling into the wrong hands. Instead, in order to obstruct the police and to help the two men, the appellant chose to throw the gun out of the window. Not only that, but he threw it down onto a children's play area with the obvious risk that it would be found by children, or fall into the hands of those who might use it for criminal purposes.

22. Furthermore, although the judge declined to investigate the circumstances in which the other two cartridges came to be under clothing in a drawer in his bedroom, the fact is that the appellant pleaded guilty to possession of those two cartridges, as well as the five recovered in the gun. By his guilty plea, he acknowledged that he must at least have known that these cartridges were there, yet he was content to keep them in his flat. That is relevant to the overall assessment of whether there were exceptional circumstances.
23. As to the threats and fear that the appellant says he was under, the reasoning explained in Attorney General's Reference No 7 of 2013 applies equally in this case. To treat that as amounting to or contributing to exceptional circumstances would blunt the effect of section 51A, contrary to the scheme of deterrent sentencing for which Parliament has made clear provision, and which the courts have repeatedly emphasised is necessary.
24. We are not persuaded that there were exceptional circumstances here to avoid imposing the minimum term of five years' imprisonment. We are satisfied that the imposition of the minimum term in this case has not resulted in an arbitrary and disproportionate sentence.
25. Accordingly, this appeal against sentence must be dismissed.
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