Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC7

HCA/2016/653/XC

Lord Justice General

Lord Malcolm

Lord Turnbull

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

CROWN APPEAL AGAINST SENTENCE

by

HER MAJESTY’S ADVOCATE

Appellant

against

ANDREW STEVEN, AKA WALTON

Respondent

Appellant: Edwards QC AD; the Crown Agent

Respondent: McConnachie QC; Patricia Baillie, Glasgow

20 January 2017

[1]        On 7 October 2016, at the conclusion of the Crown case at the High Court in Glasgow, the respondent pled guilty to a very large number of charges, generally under the Firearms Act 1968.  These were, first, a charge that between December 2010 and May 2015, at various addresses in Ayr, Glasgow and elsewhere, he agreed with others to do something which he knew, or suspected, or ought reasonably to have known or suspected, would enable or further the commission of serious, organised crime, in that he bought, acquired and stored tools and parts necessary for the reactivation of deactivated firearms and, in essence, reactivated these firearms, purchased and acquired ammunition for use with the firearms and arranged meetings to supply and distribute them; contrary to section 28(1) of the Criminal Justice and Licensing (Scotland) Act 2010. 

[2]        The second group of charges (28 in all) consisted of contraventions of section 1(1)(a) of the 1968 Act, that being having in his possession a firearm.  The third group (11 charges) were contraventions of section 1(1)(b) of the 1968 Act, that being having in his possession ammunition to which the Act applied.  The fourth group (21 charges) were contraventions of section 4(3) of the 1968 Act, that being converting a particular deactivated firearm into an active one.  The fifth group (2 charges) were contraventions of section 5(1)(a) of the 1968 Act, having possession of parts of a prohibited weapon, which included a NATO calibre assault rifle and a component of a STEN submachine gun.  The sixth group (2 charges) were contraventions of section 5(1)(ab) of the 1968 Act, being possession of prohibited weapons, notably a bolt carrier from an Armalite assault rifle.  The seventh group (20 charges) were contraventions of section 5(1)(aba) of the 1968 Act, being possession of prohibited weapons.  The eighth group (2 charges) were contraventions of section 5(1A)(g) of the 1968 Act, being possession of prohibited ammunition.  The ninth group (2 charges) were contraventions of section 19 of the 1968 Act, being having a firearm, together with ammunition for use with that firearm, aggravated by a connection with serious, organised crime.  The tenth group (1 charge) was a contravention of section 5(2A)(a), (b), (c) and (d) of the 1968 Act, being one of manufacturing weapons by reactivating revolvers, a pistol and  rifle, selling revolvers, acquiring for sale and transfer prohibited weapons, including pistols, parts of firearms and an assault rifle and purchasing and having in his possession for sale and transfer prohibited ammunition, again aggravated by a connection with serious, organised crime. 

[3]        On 3 November 2016, the trial judge imposed 9 years imprisonment on charge 1, 4½ years for each charge in group two, 4 years for each charge in group three, 6 years for each charge in group four, 7 years for each charge in group five, 6 years for each charge in group six, 8 years for each charge in group seven, 6 years for each charge in group eight, 6 years for each charge in group nine, and 10 years for the charge in group ten.  All the periods of imprisonment were to be served concurrently and therefore the total, in practical terms, was 10 years. 

[4]        The trial judge reports that the respondent was 53 at the time of the trial and had been a former soldier in the regular, and thereafter in the territorial, army.  Over a number of years he had acquired a series of decommissioned firearms from dealers in the United Kingdom and elsewhere, who sold such items to collectors of militaria.  The respondent converted these back into useable firearms and did so in a distinctive way, by manufacturing homemade ammunition, with a reduced weight of bullet, which could be discharged with lethal force without, as was intended by the decommissioning methods, the chamber walls collapsing.  Other alterations, which were more common, were restoring the barrels and firing pins of the weapons. 

[5]        On 22 January 2015, the co-accused Dean Kimmins and Michael Stuart drove from Glasgow to the respondent’s house in Ayr.  Mr Stuart was introducing Mr Kimmins as a potential customer.  A few days later, the respondent paid £600 to Mr Stuart.  Prior to that, he had travelled to Glasgow and met Mr Kimmins in the McDonald’s on Argyle Street.  On 4 February, the respondent again travelled to Glasgow and, in Argyle Street, gave another co-accused, Kenneth McMullen, a carrier bag which was taken to an address in Govan.  The bag was later found to contain a recommissioned prohibited firearm and rounds of ammunition, bearing the characteristics associated with the respondent’s methods. 

[6]        On 6 February 2015, Mr Kimmins again drove to Ayr, where he met the respondent.  On the following day the respondent went to the Golden Jubilee Hospital and met a David Paterson in a corridor and handed him a carrier bag containing a parcel.  Both then contacted Mr Kimmins separately.  The parcel contained a prohibited firearm and ammunition bearing the respondent’s hallmarks.

[7]        The police detained the respondent and searched his house.  Decommissioned firearms were found, boxed and certified as collectors’ items.  A variety of tools, suitable for use in recommissioning small arms, was recovered.  In a space below a kitchen unit an almost complete automatic assault rifle was recovered.  A further search, following an interview with the respondent’s wife, revealed tubs of pistol grade gunpowder and a quantity of cartridge cases, suitable for the manufacture of ammunition.  Propellant wads were also found.  A search of the River Ayr, close to the rear of the respondent’s house, resulted in the recovery of parts of more than one Sterling submachine gun and two rifle barrels from weapons of Eastern European manufacture.  General police enquiries indicated that pistols and ammunition bearing the respondent’s hallmarks had been found in the possession of criminals in the south of England and at the scenes of a fatal shooting and an unsuccessful armed robbery in Glasgow.  It was explained that it had not been one of the respondent’s guns which had caused the fatality.

[8]        In mitigation, it was said that a criminal associate of the respondent’s adopted brother had contacted him with a view to the provision of firearms.  Over the years the respondent’s involvement had increased as others had asked him for weapons; the payments varying, but £100 being common for each firearm.  There were no signs of any lavish lifestyle on the part of the respondent.  His involvement had been detected as a result of the surveillance on others.  The respondent suffered from Guillain-Barré syndrome, a neurological condition affecting his nerves.  He had serious liver and kidney problems and required a catheter.  He was susceptible to infection and his conditions were life-threatening in the long-term.  There was some doubt as to whether he would survive a lengthy prison sentence.  He was assessed by the Criminal Justice Social Work Enquiry Report as presenting a low risk of further offending.  He had tendered a plea at a point in the case which was significant, but it was accepted that no discount would be appropriate.  He had attempted suicide during the course of the trial. 

[9]        The trial judge took the view that the offences represented a very serious course of criminal conduct over a lengthy period of time.  The offences, which related to the recommissioning and supplying of prohibited weapons and ammunition which could be easily concealed and carried, were very grave.  The judge imposed a sentence close to the maximum in relation to each group, but did not impose that maximum because the appellant was a first offender.  The sentences were ordered to run concurrently because the offending constituted a course of conduct, albeit repeated over a considerable period of time.  Almost all of the charges had contained aggravations in terms of section 29 of the Criminal Justice and Licensing (Scotland) Act 2010, but the judge did not impose any additional penalty in relation to that, because he had taken into account that aspect of his offending in the sentences which he imposed on the first and last groups.  The latter (charge 107) carried a maximum penalty of life imprisonment, but the judge limited the sentence to one of 10 years on account of the respondent’s significant health issues, which indicated that a period in custody would be more arduous for the respondent than most others.  His partner had been suffering from cancer. 

[10]      The ground of appeal is based on the sentences imposed being “unduly lenient”.  It was accepted that the respondent had no previous convictions, but the period during which the offences had been committed was in excess of 20 years.  The sentences, it was said, did not adequately reflect the gravity of the offences, or take sufficient account of the scale of the criminal enterprise, or the period of time over which it operated.  The case was comparable to R v Stephenson (Nosakhere) [2016] 4 WLR 83.  The sentences failed to satisfy the need for retribution and deterrence.  The trial judge had placed undue weight upon the respondent’s low risk of general offending.  He had failed to place sufficient emphasis on the part played by the respondent.  The respondent’s co-accused had been sentenced as follows:  Mr Kimmins, in respect of a single charge, to 8 years imprisonment; Mr McMullen, to 6 years imprisonment for 6 charges; and Mr Stuart, 7 years in respect of 2 charges.  The co-accused had been involved in small scale participation.  The respondent had tendered pleas in relation to 92 charges, with the last carrying a maximum of life imprisonment.  He had a much more involved and protracted length of offending, which should have been reflected in the sentences.

[11]      The trial judge reports that he had not been familiar with R v Stephenson (supra), but considered, having read it, that there were significant differences of fact between it and the respondent’s case.  In R v Stephenson, all the accused were decades younger than the respondent.  They did not have his health issues.  The low risk assessment had not been a primary factor in the judge’s determination of sentence in the respondent’s case.  He had attached greater weight to his age and health.  On the comparative position, each accused was considerably younger than the respondent.  Each had a criminal record, which had been particularly serious in the case of Mr Kimmins.  In some respects the respondent was a peripheral figure, who undoubtedly sold his skills to figures involved in serious, organised crime, but who avoided further involvement or contact with that world. 

[12]      The court has had due regard to R v Stephenson (supra) and the fact that the offences here are almost all in respect of a statute which affects the United Kingdom.  However, R v Stephenson was a much more sophisticated large scale commercial operation involving a number of persons.  Although it is comparable in some respects, it cannot be regarded as encompassing the same scale of enterprise.  The trial judge has observed that there were significant differences between the respondent’s case and that in R v Stephenson; not least the respondent’s age and health.  He has also adequately explained his comparative exercise in sentencing all the accused. 

[13]      In HM Advocate v Bell 1995 SCCR 244, the Lord Justice General (Hope at page 250), said:

“It is clear that a person is not to be subjected to the risk of an increase in sentence just because the appeal court considers it would have passed a more severe sentence than that which was passed at first instance.  The sentence must be seen to be unduly lenient.  This means that it must fall outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate.  Weight must also be given to the views of the trial judge, especially in a case which has gone to trial and the trial judge has had the advantage of seeing and hearing all the evidence.  There may also be cases where, in the particular circumstances, a lenient sentence is entirely appropriate.”

[14]      Having regard to all the circumstances of this case, whilst the court does regard the sentences as being lenient, it does not consider that they were unduly so.  It will therefore refuse this Crown Appeal.