England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		2018/01811/A4 Royal Courts of Justice The Strand London WC2A 2LL
		4th October 2018

Thursday 4^th October 2018

LORD JUSTICE HOLROYDE: I shall ask Mr Justice Goose to give the judgment of the court.

MR JUSTICE GOOSE:

1. This is an appeal against sentence brought with the leave of the single judge.
2. On 16^th April 2018 in the Crown Court at Sheffield, His Honour Judge Kelson QC imposed nine years' imprisonment after the appellant, Nadeem Hussain who is aged 33, was convicted after trial. The sentence was made up as follows: for possession of a prohibited firearm, contrary to section 5(1)(aba) of the Firearms Act 1968 (count 1), nine years' imprisonment; for possession of ammunition without a firearm certificate, contrary to section 1(1)(b) of the Firearms Act 1968 (count 2), three years' imprisonment; having an imitation firearm in a public place, contrary to section 19 of the Firearms Act 1968 (count 3), nine months' imprisonment; and having an imitation firearm in a public place, contrary to section 19 of the Firearms Act 1968 (count 4), nine months' imprisonment. All of the sentences were ordered to run concurrently with each other. Orders for forfeiture and disposal of the firearms and ammunition were made.
3. The appellant was arrested on suspicion of having committed an offence, following which a search was undertaken at his home address at Kashmir Gardens, Sheffield on 30^th September 2015. Inside the bedroom of the property, car keys were found which belonged to the appellant for use in a red Volkswagen vehicle which was parked nearby. In the boot of that car, police found a black holdall containing a prohibited firearm, a .38 calibre Arminius revolver with a barrel length of less than 60cm, which was a prohibited weapon. It had previously been deactivated and attempts had been made to reactivate the gun to restore it to working order. The evidence at trial established that the firearm could easily have been reactivated. This firearm comprised count 1 on the indictment.
4. Also found within the vehicle was a quantity of ammunition, including eight Browning 7.65 calibre rounds. A further quantity of other live ammunition was also recovered, including a blue shotgun 12 gauge cartridge, six hollow tip rounds measuring .38 millimetres, two shotgun 12 gauge cartridges, and a hollow top round and three Superfast fibre 7½ shotgun cartridges. An unspent Browning bullet was recovered from the footwell of the vehicle. In addition, some blank-firing ammunition was found. The appellant's fingerprints were found on a partial piece of a carrier bag that contained the shotgun cartridges.
5. Counts 3 and 4 related to two imitation firearms: a decommissioned UZ 9mm submachine gun with the outward appearance of a firearm (count 3); and a BBM silver/black metal self-loading pistol (count 4).
6. The appellant denied that the firearms or ammunition belonged to him and sought to blame others for having placed them in the vehicle which, he said, they had accessed with another set of car keys. The appellant's mobile telephones were seized. When they were analysed, they were found to contain various messages and images which referred to firearms. These included photographs that were dated 3^rd October 2014, a WhatsApp conversation dated 14^th August 2015, and messages relating to the appellant's desire to obtain an AK47 rifle with images of such a weapon. It was this evidence that led the judge to reach the conclusion that the appellant was not a mere custodian but was involved in the sourcing and obtaining of these firearms. Mr Howard, who appears on behalf of the appellant, criticises that finding.
7. The appellant has no relevant previous convictions. He was cautioned for an assault occasioning actual bodily harm in 2002 and more recently, fined for a driving offence in 2012. Effectively, therefore, the appellant is a man of good character.
8. In sentencing the appellant, the judge took into account his relatively good character, together with letters of reference from those who described the appellant in favourable terms.
9. On behalf of the appellant it is submitted that the sentence of nine years' imprisonment was manifestly excessive. It is accepted that the judge was entitled to impose a global sentence in respect of all offending when imposing the sentence on count 1. Further, it is accepted that the sentence upon count 1 required the imposition of a minimum term of five years' imprisonment on the facts of this case. No argument is raised against the sentences upon counts 2, 3 and 4 of themselves.
10. In passing sentence, His Honour Judge Kelson QC referred to and took into account the case of R v Avis [1998] 1 Cr App R 420. The judge took account of the sort of weapons involved – in particular, the prohibited firearm with its relative ease to be reactivated, and within which was live ammunition that was compatible with the weapon. Further, there was no lawful purpose for possession of the firearm. There was no clear evidence as to what use was being made of the firearm in count 1, nor those in counts 3 and 4. There is no evidence of the intention of the appellant in possessing the firearms, although he had plainly displayed a clear interest from the evidence obtained in his mobile phones.
11. Having considered the relevant factors identified for determination in Avis and the factors in mitigation, the judge, who had tried the appellant, correctly imposed a sentence of nine years' imprisonment, to take into account the totality of offending. The remaining sentences were ordered, in our judgment correctly, to run concurrently. We consider that whilst such a sentence might be said to be at the upper end of the range, it cannot be described as manifestly excessive or wrong in principle. The possession of such weapons, particularly those that are easily adaptable to be active is a very serious offence. We are also satisfied that the judge was correct to conclude that the appellant was not just a mere custodian. The possession of ammunition which was capable of being fired by the prohibited firearm is a seriously aggravating factor to be taken into account when fixing the overall sentence.
12. We are not persuaded that the sentence of nine years imprisonment for these offences was either manifestly excessive or wrong in principle. Accordingly, we dismiss this appeal.
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