England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice Strand London, WC2A 2LL
		4 October 2018

LORD JUSTICE SIMON:

1. The Attorney General applies to refer sentences passed on this offender at the Crown Court at Wood Green on 25th July 2018 under section 36 of the Criminal Justice Act 1988 as being unduly lenient. We grant leave.
2. The offender, Mafuta Capitao, is 29. He was charged with two offences: offence 1, possessing a prohibited firearm, contrary to subsection (5)(1)(aba) of the Firearms Act 1968, and offence 2, failing to comply with a Serious Crime Prevention Order ("SCPO"), contrary to section 25 of the Serious Crime Act 2007.
3. On 24th July 2018, while his case was in the warned list for trial, he pleaded guilty to these two offences. On the following day he was sentenced by His Honour Judge Ader for these offences, as well as two offences to which he had pleaded guilty on early occasions: offence 3, having a bladed article contrary to section 139(1) of the Criminal Justice Act 1988, and offence 4, failing to comply with notification requirements contrary to section 91(1)(a) and subsection (2) of the Sexual Offences Act 2003.
4. The offender was sentenced to a total term of five years and five months' imprisonment: five years for offence 1, possession of a firearm; five months consecutive for possession of a bladed article (offence 3); eight months concurrent for failing to comply with the SCPO (offence 2); and a conditional discharge for twelve months concurrent for failing to comply with the notification requirements (offence 4).
5. The offender lived in a top floor flat in Edmonton, London N9. In the early hours of Wednesday 21st February 2018 police officers went to the address to execute a search warrant. The offender was present when they arrived and was taken to a nearby police van while officers searched the flat and communal area. During that search, police seized a Samsung mobile phone and Sim cards next to a bed in the living room area of the flat.
6. The mobile phone was subsequently examined. It contained 170 images of firearms and parts, and various internet searches relating to a particular type of firearm and renovating a firearm.
7. A loft hatch in the communal area immediately outside the offender's front door was searched. Inside the hatch a police officer found a stringed bag containing a firearm.
8. That firearm was subsequently submitted for forensic examination. It was a 9 mm Parabellum English Browning High Power Mark 1 type, which had a barrel less than 30 cms and was less than 60 cms in length overall, with a suitable detachable cartridge magazine. The firearm was missing its left hand grip plate, numerous components from its trigger mechanism and its hammer was stuck in the cocked position. The firearm was not in working order. However, despite missing trigger components, the forensic scientist was able to discharge the gun simply by inserting a finger into the magazine well and manually releasing the hammer sear. This was straightforward due to the missing grip plate.
9. The offender's fingerprints were recovered from the loft hatch. His DNA was subsequently recovered from the muzzle of the firearm and the strings on the bag that had contained the firearm.
10. At the time of his arrest on 21st February 2018 the offender was the subject of a SCPO. This had been imposed on 2nd April 2013 and came into force for five years following his release from prison on 12th December 2014. One of the requirements of the order was for the offender to notify the service provider within 72 hours in writing of his coming into or acquiring possession and control of a communication device. It transpired that he had not provided the necessary notice in respect of the Samsung mobile phone and SIM cards seized from his home, and thus was in breach of the SCPO.
11. On 21st February 2018 the offender was arrested in respect of the firearm and the breach of the SCPO. He answered 'no comment' to all questions when interviewed and was charged in respect of both offences on 22nd February 2018. On the same date, the offender was also charged with an offence of failing to comply with the notification requirements, contrary to section 91 of the Sexual Offences Act. He was subject to notification requirements following a conviction for offences of rape on 31st October 2005.
12. Between 16th August 2017 and 17th January 2018 the offender had failed to notify the police of changes to his financial details in failing to disclose that he was the holder of a Metro Bank account.
13. At the time of his arrest, the offender was on police bail for having an article with a blade or point - a lock-knife. On 10th January 2018 he had been arrested in Borden Avenue EN1 and taken to a nearby police station. He was searched and police recovered a lock-knife from between his buttocks. When interviewed, he answered 'no comment' to all questions asked and was charged on 9th February 2018.
14. The offender was heavily convicted, with eight previous convictions for thirteen offences committed between 11th November 2004, when he was 15, and 11th November 2016, when he was 27.
15. On 31st October 2005 he was sentenced for two sets of offences; First, three offences of rape, for which he received sentences of five years' youth detention and directed to comply with the notification requirements - the sex offenders register - for life. The offences were committed while on bail; Second, an offence of robbery, for which he was sentenced to a term of two years' youth detention consecutive to the five years' detention for the rape offences.
16. On 8th February 2011 he was sentenced to twelve months' imprisonment for an offence of affray.
17. On 4th November 2012 he was sentenced to a term of three years' imprisonment for three robberies committed while on bail.
18. On 3rd April 2013 he was sentenced to a term of five years' imprisonment for conspiracy to blackmail. The SCPO was imposed, which came into effect for five years following his release from prison on 12th December 2014.
19. On 28th January 2015 he was sentenced to eight months' imprisonment for failure to comply with that order.
20. On 4th November 2016 he was sentenced to a term of six months' imprisonment for an offence of assault occasioning actual bodily harm.
21. The history of the Court proceedings was as follows. On 22nd February 2018 the offender pleaded guilty to offence 4 at Highbury Corner Magistrates' Court and the matter was committed to the Crown Court for sentence. The remaining matters were sent to the Crown Court.
22. On 22nd March, at a plea and trial preparation hearing, the offender pleaded guilty to offence 3 and indicated not guilty pleas to offences 1 and 2. At that point no indictment had been lodged in relation to these latter offences because evidence as to the classification of the firearm was awaited.
23. On 11th May the offender was arraigned on an indictment charging offences 1 and 2, and pleaded not guilty. A defence statement was served denying any knowledge of the firearm in the loft.
24. On 18th July the prosecution served evidence showing the offender's DNA on the straps of the bag containing the firearm.
25. On 24th July, as we have noted, he pleaded guilty to offences 1 and 2.
26. On 25th July the matter came before Judge Ader for sentence. He was referred to section 51A of the Firearms Act 1968 and the case of Avis [1998] 1 Cr App R (S) 420.
27. In passing sentence, the judge recognised that, although the firearm was not used and there was no ammunition, the expert evidence was that it was a potentially lethal weapon and further evidence showed that the offender had been researching putting it into working order. The statutory minimum term of five years' imprisonment applied. The judge took a starting point in the region of seven years in the light of the offender's record, but reduced it to five years in the light of his plea after the late service of evidence. This amounted to a 28% reduction.
28. In relation to offence 2, the SCPO offence - notification to the service provider - the judge described it as a repeated failure but at the lower end of the scale. The sentence of eight months was ordered to run concurrently.
29. In relation to offence 3, the lock-knife, it was carried with an intent to use it. The judge took a starting point of eight months and reduced the sentence to five months to reflect the plea, and ordered the sentence to run consecutively to the sentence for the firearm offence.
30. In relation to offence 4, the failure to comply with a notification requirement in relation to the bank account, the judge described it as being at the lowest level of offending and, in the light of the other sentences, he ordered a conditional discharge.
31. For the Attorney General, Miss Pattison draws attention to the following aggravating factors: although not in technical working order, the firearm was a genuine firearm which was capable of being fired manually. The logical inference to be drawn from the research carried out by the offender on the internet was that he was intending to restore the firearm to technical working order. It was a firearm for which there can have been no lawful use. The offender had a number of previous convictions, including previous convictions for serious violent offences and the commission of offences while on bail. These resulted in previous custodial sentences of considerable length which had not had any deterrent effect on the offender. He was on police bail for the lock-knife offence when he committed the firearm offence and the offence of failing to comply with the SCPO. The offences were committed while he was subject to a SCPO, albeit the firearm offence was not specifically prohibited by the SCPO.
32. Public policy considerations apply because of the prevalence and gravity of crime concerning the possession and/or use of firearms and knives. On two separate occasions the offender had in his possession two different potentially lethal weapons: a firearm, which did not have any lawful use, and a lock-knife, which, as the judge stated, was not carried except with an intention that it be used.
33. The Attorney General acknowledges the mitigating factor of the offender's guilty plea for the firearms offence, entered after the service of the defence statement and during the warned list for trial.
34. The Attorney General draws attention to a number of cases following Avis, in which the seriousness of gun crime and the deterrent purpose of the minimum term are emphasised. These observations require no repetition in this judgment.
35. Miss Pattison draws attention to the aggravating circumstances of the offender's previous convictions in the light of section 142(3) of the Criminal Justice Act 2003, which the judge did not appear to have taken into account. She further points out that he gave the offender credit of over 25%, notwithstanding that the plea came at a time when the offender had served a defence statement and the case was in the warned list.
36. In summary, the Attorney General (see paragraph 61 of the Reference) accepts that the sentences for the other offences were not in principle "unreasonable" and that it was not "unreasonable" to pass concurrent sentences, save in respect of the bladed article offence, but he argues that the sentence of five years for offence 1 was unduly lenient and the overall sentence of five years and five months did not properly reflect the seriousness of the offending.
37. For the offender, Mr Green submitted that the judge was right in the sentence he passed for the reasons he gave. Implicitly he submits that, whether or not this was a lenient sentence, it was not unduly so.
38. In our view the Attorney General is right to focus his complaint on the firearm offence and the approach to sentencing for this type of offence as set out in Avis. Adopting that approach: first, the firearm was a genuine firearm and, although it required an expert to fire it, it could be fired and the offender had researched how this might be done; second, no use had been made of the firearm, but it had been secreted in a loft to which the offender had access as and when he wished. Third, the intention of the offender as to the use of the firearm is clear: he intended to use it for criminal purposes. There could be no other conceivable use. Whether or not it could be fired, it could be used to intimidate and, at the very least, to cause fear of violence in a criminal enterprise. Fourth, the offender had a very poor criminal record and the seriousness of the offending is inevitably increased when an offender has a record of committing offences of violence. In the present case, he had a number of convictions for robbery, as well as rape. Taking these matters into account, in our view the starting point should have been a term of not less than eight years (96 months).
39. Furthermore, the offender was not entitled to 28% credit for his plea. The evidence of his DNA on the bag and the gun only confirmed what he knew: that it was his firearm. Having pleaded not guilty and tendered his plea close to the trial, he was not entitled to more than 12% credit (twelve months). On this basis the sentence for offence 1, the firearms offence, should have been of the order of seven years. It follows that the sentence of five years was unduly lenient.
40. Accordingly we substitute a sentence of seven years for offence 1. We leave the other sentences undisturbed. The total sentence will be a term of seven years and five months, which we substitute for the term imposed in the Crown Court of five years and five months.