Scottish High Court of Justiciary Decisons

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Cite as: [2007] HCJAC 44, [2007] ScotHC HCJAC_44

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

C. G. B. Nicholson, Q.C.

[2007] HCJAC44

Appeal No: XC 68/07

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL

AGAINST SENTENCE

WILLIAM PRICE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent.

Act: Forbes; Balfour & Manson

Alt: Henderson, A.D.; Crown Agent

18 July 2007

[1] On 21 December 2006 at Ayr Sheriff Court the appellant, William Price, pled guilty to two charges in the following terms:

	"(1)	on 9 October 2006 at the Harbour Car Park, Knockcushan, Girvan, you ... did conduct yourself in a disorderly manner, shout and swear, threaten to shoot David Blackhurst, Alexander Philip, Hugh McCarry, Claire Traynor, James Stewart and Jodie Lockhart, ... place said persons in a state of fear and alarm and commit a breach of the peace;
	(2)	on [the same date at the same place], you ... did have in your possession a firearm with intent to cause a person, namely Hugh McCarry ... to believe that unlawful violence would be used against him; CONTRARY to the Firearms Act 1968 section 16A as amended by the Firearms Amendment Act 1988 and the Firearms (Amendment) Act 1994".

The plea was tendered at the first diet.

[2 ] On 15 January 2007 the sheriff sentenced the appellant to a cumulo sentence of eighteen months imprisonment, backdated to 10 October 2006, being the date on which the appellant was remanded in custody. The sheriff indicated that the sentence was discounted from one of two years on account of the early plea of guilty.

[3 ] The circumstances of the offences were described by the sheriff in his report in the following terms:

"The locus was a car park in Girvan which was busy with vehicles and pedestrians. It is a popular meeting place in central Girvan. At about 7.30 pm the complainers who are young people aged between 17 and 21 were in or at their cars and talking among themselves. Very loud music came from the appellant's motor van. The appellant was drunk and shouting and swearing. He was saying things like "I'm from the IRA and I'm going to shoot you. I'm going to fucking shoot you" and so on. He was rambling and drunk. The people in the vicinity did not take his threats seriously. Then they saw him with an air rifle in his possession holding it and polishing it. The people in the vicinity were alarmed. They cleared out and telephoned the police. An armed response unit was summoned and they seized the weapon from the appellant who was sitting within the motor van."

[4 ] The sheriff explained his reasons for selecting the sentence he did as follows:

"I took the view that this was not an appropriate case for a community based disposal. This man ... clearly is not prepared to alter his drinking or to behave himself. He was very much out of control at the time of the present offences, shouting, swearing, threatening to kill people. He was then in possession of the firearm, which was seen and led the complainer [in charge 2] to believe that it would be used against him. This was very much an ongoing incident encompassing Charges One and Two. However, Charge Two carries a maximum penalty of ten years imprisonment. It is clear that Parliament intended that this charge under the Firearms Act be treated very seriously. The complainers took the matter very seriously by getting off their mark and telephoning the police. The police took the matter very seriously by calling out the Armed Response Unit.

It is true that the appellant is not a major criminal involved in a bank robbery or whatever. Nevertheless his behaviour was quite outrageous and ultimately frightening for the public and no doubt for the police who had to deal with this matter. ...

In the whole circumstances of the incident I took the view that a custodial sentence had to be imposed. Firearms have to be very strictly controlled and any misuse of firearms must attract condign punishment. I was concerned about this particular offending but also about the message that has to be sent out regarding the possession or misuse of firearms. The Crown had proceeded by way of Solemn Procedure. I took the view that the offending had to be marked by a custodial sentence.

I came to the conclusion that a starting point for this whole incident by way of a cumulo sentence would be two years. The appellant had pled guilty at the first diet. I accordingly allowed him a discount restricting the sentence to eighteen months."

[5 ] Mr Forbes for the appellant submitted that the sheriff erred in regarding custody as the only appropriate disposal. He accorded insufficient weight to the appellant's personal circumstances. It was accepted that the matter was itself clearly serious. Mr Forbes suggested, however, that there was an inconsistency in the sheriff's narrative of the circumstances in that having first said that the people in the vicinity did not take the appellant's threats seriously, he then went on to say that they were alarmed, and later to say that the complainer in charge 2 believed that the firearm would be used against him. So far as his personal circumstances were concerned, the appellant was 65 years of age. His record of previous convictions was short and non-analogous. The appellant's behaviour resulted from his drinking habits. In the Social Enquiry Report he was assessed as presenting a low risk of re-offending. A focus for probation had been identified, and he had been assessed as suitable to perform community service. Although there had been concern that he had no fixed abode, that concern had been elided by his acquiring a tenancy in Girvan. He had been of good behaviour since the offence, and had curtailed his drinking. He was on medication for depression, and attended a psychiatrist.

[6 ] Since charge 2 relates to a contravention of a United Kingdom statute, and since we were aware that sentencing guidelines had been laid down in that connection by the Court of Appeal in R v Avis [1998] 2 Cr App R (S) 178, we invited Mr Forbes to address us on that case. He drew our attention to the following passage in the judgment of Lord Bingham CJ at 181:

	"The appropriate level of sentence for a firearms offence, as for any other offence, will depend on the facts and circumstances relevant to the offence and the offender, and it would be wrong for this Court to seek to prescribe unduly restrictive sentencing guidelines. It will, however, usually be appropriate for the sentencing court to ask itself a series of questions:
	(1)	What sort of weapon was involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. ... Possession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use.
	(2)	What (if any) use has been made of the firearm? ... [T]he more prolonged and premeditated and violent the use, the more serious the offence is likely to be.
	(3)	With what intention (if any) did the defendant possess or use the firearm? Generally speaking, the more serious offences under the Act are those which require proof of a specific criminal intent (to endanger life, to cause fear of violence, to resist arrest, to commit an indictable offence). The more serious the act intended, the more serious the offence.
	(4)	What is the defendant's record? The seriousness of the firearms offence is inevitably increased if the offender has an established record of committing firearms offences or crimes of violence."

At page 185, the Lord Chief Justice added:

"Any rigid, formulaic approach to levels of sentence would be productive of injustice in some cases. Even offences which on their face appear to be very grave may on examination turn out to be less so. However, given the clear public need to discourage the unlawful possession and use of firearms, both real and imitation, and the intention of Parliament expressed in a continuing increase in maximum penalties, the courts should treat any offence against the provisions referred to above as serious."

Among the "offences referred to above" was that created by section 16A of the Firearms Act 1968, as amended. At page 183, Lord Bingham pointed out that while the section was introduced primarily to deter the intimidatory use of imitation firearms, it expressly covers real firearms also. He reviewed four cases covering a range of circumstances: Wilby (5 March 1996, unreported) - a real gun held for six minutes against the victim's temple - four years imprisonment after trial; Thompson [1997] 2 Cr App R (S) 188 - pointing an old but genuine air pistol at the victim - two years imprisonment on a plea of guilty; Mercredi [1997] 2 Cr App R (S) 204 - an imitation firearm had been used - for special and unusual reasons relating to the offence and the offender five years imprisonment was reduced on appeal to twelve months; Hammond (22 May 1997, unreported) - a shotgun was discharged over the head of the victim at close range - three years imprisonment upheld on appeal.

[7] Mr Forbes submitted that when the questions posed by Lord Bingham were asked in the present case, the answers led to the conclusion that the appellant's offence was towards the lower end of the range of seriousness. The firearm in question was an air rifle. It was capable of lawful use, and indeed, as was recorded in the Social Enquiry Report, was kept by the appellant for shooting rabbits for his own consumption. That was in accordance with his lifestyle as a "gypsy" (which term the appellant preferred to "traveller"). The use made of the firearm in the incident had been very limited. It had not been presented, still less discharged. It had to be accepted that the appellant had pled guilty to intent to cause a person to believe that unlawful violence would be used against him, but of the various offences of specific intent mentioned by Lord Bingham, that was perhaps the least serious. So far as record was concerned, the appellant had none that was analogous.

[8 ] In our view Mr Forbes's submission that there was an inconsistency in the sheriff's view of the effect of the incident on those who were present was not well founded. On a fair reading of the relevant passages of the sheriff's report, it seems clear to us that, at first, the bystanders did not take the appellant's drunken threats as seriously intended, but when it was seen that he indeed had a firearm in his possession they became alarmed. The appellant's plea acknowledged that his intention was to induce a belief in the complainer in charge 2 that unlawful violence would be done, and the sheriff records that the complainer did entertain such a belief. We accept that the air rifle was a firearm that could be possessed for legitimate purposes, and that the appellant had a legitimate purpose for having it, but there was no explanation of why he was handling it in a busy car park in the centre of Girvan. We accept, too, that the use actually made of the firearm was at the lower end of the range of gravity. Finally we accept that the appellant had no material record.

[9 ] When the circumstances of the offence are weighed along with the personal circumstances of the appellant, we are of opinion that the sheriff was entitled to regard the offence as being of such seriousness as to merit a custodial sentence. We are not persuaded that the sheriff erred in that respect. We do consider, however, that when regard is had to the points made in mitigation, including the steps taken by the appellant to moderate his drinking, the starting point of two years selected by the sheriff was higher than necessary. A starting point of twelve months would, in our view, have been sufficient. Adopting the percentage discount applied by the sheriff in respect of the plea of guilty, the result is a cumulo sentence of nine months imprisonment. Since the sentence was backdated to 10 October 2006 and the appellant remained in custody until released on interim liberation on 23 March 2007, he has already served a little more than the equivalent of that sentence.

[10 ] In the result, we shall allow the appeal, quash the sentence of eighteen months imprisonment imposed by the sheriff and substitute a sentence of nine months imprisonment with effect from 10 October 2006.