REGINA v TONY AVIS [1997] EWCA Crim 3355

IN THE COURT OF APPEAL
CRIMINAL DIVISION
[1997] EWCA Crim 3355Case No No. 97/1090/Z4, 97/5153/W4, 97/2898/W3, 97/3090/Y4, 97/7066/X5, 97/6116/Z2Venue Royal Courts of Justice, The Strand, London WC2
Between
REGINATONY AVISRICHARD BARTGERALD JOHN THOMASRICHARD EDWARD TORRINGTONSHAUN MARQUEZHAROLD EGAN GOLDSMITH
Before
Lord Chief Justice of EnglandLord Bingham of CornhillMr Justice Douglas BrownMr Justice KayMR RODERICK M T PRICE appeared on behalf of THE APPELLANT AVISMR RICHARD THATCHER appeared on behalf of THE APPELLANT BARTONMR JOHN LLOYD-JONES appeared on behalf of THE APPELLANT THOMASMR ANTHONY J BRIGDEN appeared on behalf of THE APPLICANT TORRINGTONMR SIMON TIERNEY appeared on behalf of THE APPLICANT MARQUEZMR DAVID L BRADSHAW appeared on behalf of THE APPLICANT GOLDSMITHMR NICHOLAS HILLIARD appeared as AMICUS CURIAEDate 16 December 1997

THE LORD CHIEF JUSTICE:

[1]These six appellants and applicants have been convicted, on their own admission or the verdict of a jury, of various offences against the Firearms Act 1968 as amended. The appeals have been listed and heard together in order that the level of sentence for these and some kindred firearms offences may be reviewed. This review has been prompted by three considerations:(1) In several recent cases this court has criticised the sentences imposed or upheld in previous cases as inadequately reflecting the gravity of such offences: see, for example, R v Ecclestone (1995) 16 Cr App R(S)9 at 11; R v Francis (1995) 16 Cr App R(S)95 at 98; and R v Clarke [1997] 1 Cr App R (S )323 at 324, BAILII [1996] EWCA Crim 898 .(2) Parliament has recently increased the maximum term of imprisonment which may be imposed for certain of these offences in the Criminal Justice and Public Order Act 1994.(3) The Criminal Statistics for England and Wales published by the Home Office for 1996 show that, while the number of those convicted of some firearms offences has not increased between 1991 and 1996, the number convicted of other firearms offences has very sharply increased. Those convicted on indictment of possessing firearms with intent to endanger life have risen from 33 in 1991 to 207 in 1996. Those convicted of possessing or distributing prohibited weapons or ammunition have risen from 212 in 1991 to 1002 in 1996. This accords with the subjective impression formed by a number of judges that cases involving the use of firearms come before them much more frequently than was once the case, particularly in some parts of the country.[2]The unlawful possession and use of firearms is generally recognised as a grave source of danger to society. The reasons are obvious. Firearms may be used to take life or cause serious injury. They are used to further the commission of other serious crimes. Often the victims will be those charged with the enforcement of the law or the protection of persons or property. In the conflicts which occur between competing criminal gangs, often related to the supply of drugs, the use and possession of firearms provoke an escalating spiral of violence.[3]Where imitation firearms are involved, the risk to life and limb is absent, but such weapons can be and often are used to frighten and intimidate victims in order to reinforce unlawful demands. Such imitation weapons are often very hard to distinguish from the real thing - for practical purposes, impossible in the circumstances in which they are used - and the victim is usually as much frightened and intimidated as if a genuine firearm had been used. Such victims are often isolated and vulnerable.[4]Sometimes the firearm involved, although genuine, has been disabled from firing, or cannot be fired for want of ammunition. In such cases again the risk to life and limb is absent, but the risk of use to frighten or intimidate remains, and the weapon may be used in earnest on another occasion.[5]The appropriate level of sentence for a firearms offence, as for any other offence, will depend on all 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 is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. 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? It is necessary for the court, as with any other offence, to take account of all circumstances surrounding any use made of the firearm: the 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 most 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 any firearm offence is inevitably increased if the offender has an established record of committing firearms offences or crimes of violence.[6]The 1968 Act as amended lays down a hierarchy of offences, some (but by no means all) of which it is appropriate briefly to mention:(1) By section 1(1) of the 1968 Act it is an offence to possess, purchase or acquire a firearm or ammunition without a certificate. By the 1994 Act the maximum term of imprisonment on indictment was increased from 3 years' to 5. The offence is triable either way. In R v Khan (1986) 8 Cr App R(S) 334 the defendant was sentenced to 6 months' imprisonment for possession of a firearm and ammunition without a certificate, such sentence to be consecutive to a longer sentence for another firearms offence. On appeal, the 6 month sentence was made concurrent. In R v Kent [1996] 2 Cr App R (S) 381 the defendant was sentenced to 12 months' imprisonment for possession of a firearm without a certificate. This sentence was to be served concurrently with a longer sentence for other and more serious firearms offences, and does not appear to have been challenged on appeal. In R v Horn [1997] 2 Cr App R(S) 172, BAILII: [1996] EWCA Crim 1786 the defendant pleaded guilty to possessing a firearm without a certificate, possessing ammunition without a certificate and possessing a prohibited weapon, a CS gas cylinder. He was sentenced to 12 months' imprisonment for unlawful possession of the firearm, with shorter concurrent terms for possession of the ammunition and the CS gas cylinder. This court endorsed the observation of the trial judge that an immediate custodial sentence was appropriate for the possession of a loaded gun, but reduced the effective sentence to one of six months' imprisonment. The defendant was a German tourist of good character who had brought these articles from Germany where (it appeared) no authority was required for their possession.(2) By section 2(1) of the 1968 Act it is an offence to possess, purchase or acquire a shotgun without a certificate. The maximum term of imprisonment on indictment was increased by the 1994 Act from 3 years' to 5. The offence is triable either way.(3) By section 21(4) of the 1968 Act it is an offence to possess a firearm or ammunition as a prohibited person. The maximum term of imprisonment on indictment was increased by the 1994 Act from 3 years' to 5. The offence is triable either way. In R v Cresswell (1986) 8 Cr App R(S) 29 a defendant who pleaded guilty to an offence against this subsection was sentenced to a concurrent term of 2 years', which was upheld by this court. In R v Yates (1994) 15 Cr App R(S) 400 the defendant was sentenced to 2 years' imprisonment on pleading guilty to this offence. While interfering with other sentences imposed for other firearms offences, this court did not disturb that sentence. Nor did it in R v Kent , above, where the defendant pleaded guilty to an offence under this subsection, and the sentence was concurrent with other longer sentences for other firearms offences.(4) By section 3 of the 1968 Act it is an offence to trade in firearms without being registered as a firearms dealer and to sell firearms to a person without a certificate. The maximum term of imprisonment on conviction on indictment was increased from 3 years' to 5 by the 1994 Act. An offence against the section is triable either way.(5) By section 4 of the 1968 Act it is an offence to shorten the barrel of a shotgun, to convert certain items into a firearm and to commit an offence under section 1(1) of the Act in the aggravated form set out in section 4(4), by possessing, purchasing or acquiring a shortened shotgun or converted firearm. The maximum term of imprisonment on conviction on indictment was increased from 5 years' to 7 by the 1994 Act. The offence is triable either way. We have been referred to seven recent cases under this section, in each of which the defendant pleaded guilty: R v Cresswell (1986) 8 Cr App R(S) 29, in which a sentence of 4 years' imprisonment was upheld. R v Kennedy (1988) 10 Cr App R(S) 398 in which a sentence of 3 years' imprisonment was upheld. R v Smith (1989) 11 Cr App R(S) 55 in which a 2 year concurrent sentence was upheld (although other sentences were reduced). R v Yates (1994) 15 Cr App R(S) 400 in which a sentence of 5 years' was reduced to 4, to allow some discount from the maximum on a plea of guilty. R v Ashman [1997] 1 Cr App R(S) 241 in which a sentence of 2½ years' imprisonment was upheld. R v Clarke [1997] 1 Cr App R(S) 323, BAILII [1996] EWCA Crim 898 in which a sentence of 3 years' was upheld. R v Dickins [1997] 2 Cr App R(S) 134; BAILII: [1996] EWCA Crim 1727 in which 5 years' imprisonment concurrent was imposed on two counts under this section.(6) By section 19 of the 1968 Act it is an offence to possess a firearm and ammunition in any public place. The maximum term of imprisonment on indictment was increased by the 1994 Act from 5 years' to 7. The offence is triable either way. We have been referred to 3 reported cases, in each of which there was a plea of guilty. In R v Cresswell (1986) 8 Cr App R(S) 29, a sentence of 4 years' was upheld. In R v Smith (1989) 11 Cr App R(S) 55, a sentence of 3½ years' was reduced by this court to 2½ years'. In R v Francis (1995) 16 Cr App R(S) 95, a concurrent sentence of 6 months' imprisonment for possessing a loaded sawn-off shotgun in a public place was upheld. Having referred to the last-mentioned case (among others), the court observed in giving judgment:
"Departing for a moment from the consideration of the instant appeal, this Court has no hesitation in stating that henceforth those cases cannot properly be regarded as guidelines to the appropriate level of sentencing in firearms cases. At the present time, the use of firearms, and in particular sawn-off shotguns, is becoming ever more prevalent and the courts must not be inhibited from passing sentences designed to deter those minded to use a firearm for whatever purpose and in whatever context." (7) By section 5(1) and section 5(1A) of the 1968 Act it is an offence to possess or distribute certain prohibited weapons or ammunition or other prohibited weapons. The maximum term of imprisonment on indictment was increased by the 1994 Act from 5 years' to 10 under the first of these subsections and from 2 years' to 10 under the second. The offence is triable either way under both subsections. In R v Farrer and Pendrigh (1995) 16 Cr App R(S) 904 a sentence of 3 years' concurrent on conviction of this offence was upheld on appeal by the second appellant. In R v Kent [1996] 2 Cr App R(S) 381 a sentence of 5 years' was reduced by this court to 4. In R v Horn [1997] 2 Cr App R(S) 172 a sentence of 3 months' concurrent was upheld by this court on the special facts of that case. In R v Dickins [1997] 2 Cr App R(S) 134 a sentence of 8 years' imprisonment was upheld on 2 counts under this section. In all these cases there were pleas of guilty. (8) By section 16A of the 1968 Act, introduced by the Firearms (Amendment) Act 1994, it is an offence for a person to have in his possession any firearm or imitation firearm with intent to cause or enable another person to cause any person to believe that unlawful violence will be used against him or another person. An offence against this section is only triable on indictment, and the maximum term of imprisonment is 10 years'. While the section was introduced primarily to deter the intimidatory use of imitation firearms, it expressly covers real firearms also. In R v Wilby (unreported, 5 March 1996) a defendant who had put a real gun to the victim's temple and subjected him to a "terrifying experience" for a period of about 6 minutes was refused leave to appeal against a sentence of 4 years' imprisonment imposed after a contested trial. In R v Thompson [1997] 2 Cr App R(S) 188 a defendant had pointed an old but genuine air pistol at the victim who was "scared stiff"
. A sentence of 3 years' imposed on a plea of guilty was reduced to 2 years', partly because of the defendant's personal mitigation and partly because of the relative harmlessness of the weapon involved. In R v Mercredi [1997] 2 Cr App R(S) 204 an imitation firearm had been used, and the defendant had contested the charge. For special and unusual reasons related both to the offence and the offender, a sentence of 5 years' imprisonment was reduced by this court to 12 months'. The defendant in R v Hammond (unreported, 22 May 1997) had obtained a shotgun and three cartridges, and had discharged the shotgun over the head of the victim at close range. He entered a very late plea of guilty. A sentence of 3 years' imprisonment was upheld by this court. (9) By section 16 of the 1968 Act it is an offence for a person to have in his possession any firearm or ammunition with intent to endanger life or enable another person to endanger life whether any injury has been caused or not. The maximum sentence for this offence, which is only triable on indictment, was increased from 14 years' to life by the Criminal Justice Act 1972. In R v Haddock (1985) 7 Cr App R(S) 306 a sentence of 3 years' imprisonment imposed on a plea of guilty to this offence was held to be "entirely and exactly right". This is one of the decisions discounted in R v Francis , above. In R v Fish (1985) 7 Cr App R(S) 310 a sentence of 4 years' imposed on a plea of guilty to this offence was reduced by this court to 2 years'. This decision also was discounted in R v Francis , above. The defendant in R v Khan (1986) 8 Cr App R(S) 334 had produced a Browning automatic pistol with which he had threatened the victim, apparently believing himself to be threatened. He was sentenced to 30 months' imprisonment following a contested trial, and this term was reduced by this court to 2 years' imprisonment on grounds which are not altogether easy to reconcile with the jury's verdict. In R v Field (1986) 8 Cr App R(S) 476 the defendant pleaded guilty to a number of firearms offences, including a count under section 16. The case involved a sawn-off shotgun, which the defendant had fired at a police officer, who was struck by several pellets (although the defendant had not intended this result). Sentenced to life imprisonment, this court reduced the sentence to 8 years' imprisonment. On very special facts, a sentence of 2 years' youth custody was reduced to 3 months' in R v Birch (1986) 8 Cr App R(S) 414, despite the discharge of a shotgun which accidentally wounded the victim. In R v Zaman (1990) 12 Cr App R(S) 248 a defendant who pleaded guilty to an offence against this section was sentenced to 2 years' detention in a young offender institution, a sentence which this court upheld. The offence involved a sawn-off shotgun and 23 cartridges, which the defendant kept in order to protect himself against an ethnic group who had beaten him up and were threatening to do so again. (10) By section 17(1) of the 1968 Act it is an offence to make or attempt to make any use of a firearm or imitation firearm with intent to resist or prevent arrest. This offence is triable on indictment only. The maximum term of imprisonment was increased from 14 years' to life by the Criminal Justice Act 1972. In R v Field (1986) 8 Cr App R(S) 476 the defendant pleaded guilty to this among other firearms offences; a sentence of life imprisonment was reduced by this court to 8 years'. In R v Farrer and Pendrigh (1995) 16 Cr App R(S) 904 both appellants pleaded guilty to robbery and also to offences against this subsection. On pleas of guilty, they were both sentenced at first instance to 18 years' imprisonment, of which 6 years' was attributable to the section 17(1) offences. The weapons involved were a sub-machine gun and a revolver, both of which were fired at the police. On appeal, this court reduced the total sentence from 18 to 16 years', but increased the penalty for the section 17(1) offence from 6 years' to 9. (11) By section 17(2) of the 1968 Act it is an offence, at the time of committing or being arrested for an offence specified in Schedule 1 to the Act, to possess a firearm or imitation firearm unless it is shown that such possession is for a lawful object. The maximum penalty on conviction of this offence was increased from 7 to 14 years' by the Criminal Justice Act 1972, and from 14 years' to life by the Criminal Justice Act 1988. An offence against the subsection is triable only on indictment. In R v Francis (1995) 16 Cr App R(S) 95 the defendant pleaded guilty to a count under this subsection, the offence being that of assaulting a police officer in the execution of his duty. The firearm in question was a loaded sawn-off shotgun, for which the defendant had additional cartridges, and the shotgun was discharged, accidentally according to the defendant. The sentencing judge accepted, surprisingly in the view of this court, that the defendant had not known that the gun was loaded. While expressing the views to which reference has already been made, this court felt constrained by authority to reduce the sentence of 5 years' imprisonment imposed at first instance to one of 3 years'. (12) By section 18(1) of the 1968 Act it is an offence for a person to have with him a firearm or imitation firearm with intent to commit an indictable offence, or to resist arrest or prevent the arrest of another, in either case while he has the firearm or imitation firearm with him. The maximum sentence on conviction of an offence under this section was increased from 10 years' to 14 by the Criminal Justice Act 1972, and from 14 years' to life by the Criminal Justice Act 1988. Offences against the subsection are triable on indictment only. In R v French (1982) 75 Cr App R 1 the defendant had pleaded guilty to robbery, for which he had been sentenced to 5 years' imprisonment, and to an offence under this subsection, for which he had been sentenced to 3 years' imprisonment consecutively, making a total of 8 years' imprisonment. The firearms involved were a starting pistol, for which the defendant had blanks, and a .38 revolver for which he had 6 rounds. This court upheld the sentence imposed. In R v Sheldrake (1985) 7 Cr App R(S) 49 a defendant was sentenced to 2 years' imprisonment on conviction of an offence under this subsection. The firearm involved was an imitation pistol. The sentence was upheld by this court. In R v Cresswell (1986) 8 Cr App R(S) 29 a sentence of 4 years' imprisonment was upheld. The appellant had pleaded guilty. He had been in possession of a loaded sawn-off shotgun and cartridges. In R v Lewis (1986) 8 Cr App R(S) 314 a sentence of 6 years' imprisonment imposed on a plea of guilty was reduced by this court to 4. The defendant had returned to the scene of a party from which he had been removed with a single-barrelled sawn-off shotgun and several cartridges. In the presence of others he had played with the gun, loading and unloading it, but had not pointed it at anyone although he had at one stage fired the gun into the air. This authority was another of those discounted in R v Francis , above. In R v Barzoni (1987) 9 Cr App R(S) 192 the defendant had pleaded guilty, and the firearm involved had been an imitation. A sentence of 30 months' imprisonment was upheld. Attorney General's Reference Nos. 3 and 4 of 1990 ( R v Dickson and others ) (1990) 12 Cr App R(S) 479 involved a series of cases of robbery. Included in some of the indictments had been firearms offences against this subsection. In one case a sentence of 3 years' imprisonment for the firearms offence, imposed after a contested trial, was upheld. In another case a sentence imposed on a plea of guilty was increased from 12 months' to 2 years'. These sentences formed part of longer sentences imposed for other offences.[7]Unless they are the subject of an application by the Attorney General under section 36 of the Criminal Justice Act 1988, sentences considered by the Court of Appeal tend to fall towards the top of the relevant bracket, since those more leniently sentenced are less likely to challenge their sentences, and less likely to obtain leave. Figures supplied by the Home Office show that, for those sentenced in the Crown Court in 1996 when the firearm offence was the principal offence committed by the offender, about two-thirds of those offending against section 16 were sentenced to custody and the average length of sentence was 33 months'. Roughly the same proportion were sentenced to custody for offences against section 16A, but the average length of sentence was 23 months'. For those convicted under section 17(2) the proportion sentenced to custody was lower, a little over one third, but the average sentence was longer at some months under five years'. For offenders convicted under section 18(1) the proportion sentenced to custody was just over half, the average sentence length being just under 4 years'. The basis upon which the figures are compiled makes it difficult to draw confident conclusions from them.[8]The authorities illustrate (and the available figures may well reflect) the factual and personal diversity of the cases which come before the courts. 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. We share the view expressed by the court on earlier occasions that some of the sentences imposed for these offences in the past, sometimes by this court, have failed to reflect the seriousness of such offences and the justifiable public concern which they arouse. Save for minor infringements which may be and are properly dealt with summarily, offences against these provisions will almost invariably merit terms of custody, even on a plea of guilty and in the case of an offender with no previous record. Where there are breaches of sections 4, 5, 16, 16A, 17(1) and (2), 18(1), 19 or 21, the custodial term is likely to be of considerable length, and where the four questions suggested above yield answers adverse to the offender, terms at or approaching the maximum may in a contested case be appropriate. An indeterminate sentence should however be imposed only where the established criteria for imposing such a sentence are met. Tony AVIS[9]Avis is now 35 and on 16th January 1997 in the Crown Court at Southwark he was convicted of possessing a firearm with intent to cause fear of violence contrary to S.16A of the Firearms Act 1968 and was sentenced by Judge Butler QC to 8 years' imprisonment. He was acquitted by the jury of a count of attempted murder and a count of possessing a firearm with intent to endanger life. He appeals against sentence by leave of the single Judge.[10]The events which gave rise to the charge occurred in November 1995 at a time when Avis was involved in a serious dispute with his sister Miriam. Miriam Avis did not give evidence and the main witness for the prosecution was a Mrs Lyons, a neighbour. She said that on the morning of 8th November she saw Miriam dragging her two young children. Her face had blood on it and she was heading for her car, parked nearby. Mrs Lyons then noticed Avis pursuing her shouting "you fucking want it". She was shouting back "I'll get you for this" and at that point she noticed that Avis was holding a handgun which he appeared to be trying to load with a magazine. He was doing this whilst walking over to his sister. He pointed the gun at Miriam and made the gun click and at the same time began to fiddle with the magazine as if there was a problem. She heard the handgun click another two times at which point he caught up with his sister and put the handgun to the side of her head. She and her children reached the car and whilst she was trying to put the children in the car Avis was still apparently trying to make the gun work. He approached her again and put the handgun to the back of her head. This time when he clicked the gun there was a loud bang and the wall near them crumbled having been struck by a bullet. Mrs Lyons' statement continued:
"I don't know whether Miriam moved her head or Tony purposely missed. It all happened too fast"
. Miriam Avis drove off in the car shouting to Avis "I'll get you for this" or words to that effect. However, shortly after this she drove her car back and it appeared to Mrs Lyons that she was going to confront Avis. Mrs Lyons tried to dissuade her. At that point Avis appeared on the scene but almost immediately the police arrived and Avis left. Shortly afterwards the gun was found on the pavement nearby. It was a Colt .45 semi automatic pistol with one live round in the magazine. The gun was in poor condition.[11]Avis was not arrested until May 1996. Although he admitted some physical violence to his sister because she had attacked him, he denied knowing anything about the gun. He denied following his sister out into the road. In evidence, however, he agreed he had the gun in his possession for a short time. It was not his gun and he believed it belonged to Miriam's boyfriend who was a drug dealer and his sister was probably hiding the weapon on his behalf. The physical struggle between himself and his sister occurred when he discovered his sister trying to hide the gun which he then took from her. She managed to take the gun from him and left the house and when he pursued her and struggled with her the gun was accidentally discharged.[12]Avis has a criminal record starting in his late teens when he received a custodial sentence. Two further convictions for violence followed in 1982 and 1983 and there was then a 10 year gap before his next conviction for violence for which he was sent to prison. In 1995 he was placed on probation for affray. A drugs conviction put him in breach of that order and he was sentenced to 15 months' imprisonment for the offence of affray which was reduced on appeal to 4 months' imprisonment. In the 10 year period when he committed no offences he worked consistently as a roofer and a bricklayer.[13]The Judge in sentencing said he bore in mind that Avis had been acquitted of the more serious charges but made it clear that he had no doubt that the gun was his and he had actually fired it intending to cause fear of violence.[14]Mr Price for Avis before us said that the sister, unlike many victims, did not appear to have suffered psychological distress. Her reaction after driving off when the gun was fired was to return quickly in angry mood. He also submitted that there was no history of the use of firearms by Avis in his long record of violent offences and this was not a case of the use of a firearm by a professional criminal. He submitted that the sentence of 8 years imprisonment was more appropriate for the offence, of which he had been acquitted, of possessing a firearm with intent to endanger life. Having reviewed the reported cases he suggested that the range of sentence for that offence was between 2 and 8 years and for the offence under S.16A the sentence should be less than that.[15]As we have said, sentences for firearm offences have failed to reflect the full gravity of the offences. Here, there was a real weapon, loaded and discharged. But the sentence of 8 years was above the prevailing level of sentence being imposed at the time the Judge was sentencing. We have decided in all the circumstances to reduce it to 6 years imprisonment. We wish to emphasise however that in future offences such as this under S.16A could well, after a trial, properly attract sentences of the length originally imposed in this case. To the extent we have indicated the appeal succeeds. Richard BARTON[16]On 10th July 1997 in the Crown Court at Derby Barton, aged 20, pleaded guilty to two counts of dwelling house burglary, a count of possessing an imitation firearm contrary to S.16A of the Firearms Act 1968 and a count of commercial burglary. The last two offences were committed on bail. He was sentenced to a total of 5 years' detention in a Young Offender Institution made up in this way: for the two domestic burglaries he was sentenced to 3 years' detention in a Young Offender Institution to run concurrently; for the commercial burglary he was sentenced to a concurrent sentence of 12 months' detention; and for the firearm offence two years' detention consecutive to the other sentences. He also asked for seven other offences to be taken into consideration, being three offences of domestic burglary and four of commercial burglary.[17]Against those sentences he now appeals with the leave of the single Judge. His counsel Mr Thatcher recognised at the outset of the appeal that the burglary sentences could not be the subject of any complaint. The appeal was brought on the basis that the overall sentence was too long and the sentence for the firearm offence in particular was excessive. In those circumstances we only refer to the circumstances of the firearm offence.[18]Having been arrested for the burglaries in November 1996, he was released on bail in February 1997. The firearm offence was committed in the early hours of the morning of 4th March 1997. Barton, who had had a considerable amount to drink, approached a car containing 3 young men, produced a replica handgun and pointed it at them and demanded to be given a lift. He held the gun within inches of the face of a young man called Cowie and immediately pulled the trigger and the gun clicked. Cowie thought the gun was similar to one he had owned, a plastic imitation Baretta pistol. It made a noise like an imitation pistol. He was, however, not sure whether it was and was in shock. He aimed a blow at Barton who was leaning into the car. Cowie got out of the car and punched at Barton who fell but then got up again and was chased by Cowie. He turned and fired the gun again. Although he did not think anything was fired from it, Cowie was still fearful. Barton was arrested shortly afterwards and when interviewed claimed he had been given the gun that night by a friend. He accepted that he had pointed it at the young men.[19]Between 1994 and 1996 he had been convicted on numerous occasions, including 21 offences of theft and taking vehicles and two public order offences, including his most recent conviction for affray for which he received 8 months detention in a Young Offender Institution.[20]The Judge in sentencing regarded the firearm offence as extremely serious as the occupants of the car were absolutely terrified thinking their lives were in danger.[21]Mr Thatcher stressed the momentary fear experienced by the victims before it was realised that the weapon was a replica. That served to reduce the gravity of the offence and the sentence passed for the firearm offences resulted in a sentence which overall was too long.[22]We disagree. As the Judge rightly said, this was a terrifying offence and although it was only for a short time those in the car must have thought themselves in real danger. We have looked at the totality of the sentence and are of the view that it is not in all the circumstances excessive, and this appeal is dismissed. Gerald John Thomas[23]On 2nd April 1997, Thomas now 66, pleaded guilty to a number of firearms offences after a jury had been sworn, and they were directed to convict him. The trial had proceeded only as far as a hearing on the voir dire as to admissibility of evidence and the pleas came after that issue had been decided against him. The offences for which he was sentenced by Judge Hutton were two counts of possessing a firearm with intent to enable another person by means thereof to endanger life, for which he was sentenced to 9 years' imprisonment on each count to run concurrently; six counts of selling or transferring firearms unlawfully for which he received concurrent sentences of 4 years imprisonment; and two counts of selling or transferring ammunition unlawfully for which he received 2 years' imprisonment to run concurrently, the total sentence being 9 years' imprisonment. Two counts of selling or transferring prohibited weapons and two counts of shortening shotguns were left on the file. He appeals against sentence with leave of the single Judge.[24]Thomas's principal occupation was that of compere and entertainer but he was also registered as a permitted firearms holder and as a firearms dealer. On 9th April 1996 an undercover police officer was introduced to Thomas by another man. After some conversation Thomas sold three revolvers and ammunition for them for £1,160.00 to the officer. This transaction took place in the car park of the docks at Gloucester. During the course of the transaction Thomas told the officer that he could supply firearms regularly and easily and this led to a further meeting between the two on 24th April at Gloucester railway station where Thomas sold the undercover officer two pump action shotguns which had been shortened. He also sold three pistols and ammunition for all five weapons, the total price being £1,220.00. Other officers had observed this transaction in progress and after the undercover officer left Thomas was arrested.[25]Thomas had no previous convictions and the trial Judge was provided with a very large number of testimonials as to his character. He had for many years given his services to a number of charities, particularly those involving children and was held in high esteem by all those giving references.[26]The Judge in sentencing said that Thomas had used his expertise as a firearms dealer to obtain these weapons from a source still not disclosed by him. He had deliberately and calculatingly sold dangerous firearms to a man he didn't know for the purpose of financial gain. Realistically all the weapons could only have been used in serious crimes. The Judge took into account his very late pleas of guilty, explained by the fact that he could not face up to the enormity of what he had done. Before taking the pleas and mitigating factors into account, which included his age, the Judge's starting point would have been 12 years' imprisonment for the two offences under S.16 and 5 years' imprisonment for the remaining offences.[27]Mr Lloyd-Jones emphasised that the pump action shotguns dated from 1918 and he had held them for some time and had shortened them himself. He had not gone to underworld suppliers to obtain them when they were requested by the undercover officer. Mr Lloyd-Jones stressed Thomas's age as well as the testimonials to his character of which the Court had been shown only a small selection. He pointed out that on a pessimistic but realistic view of his release prospects he would be 71 when released and 70 if the sentence was reduced by 2 years. He submitted, finally, that the remarkable support that Thomas had had from those with knowledge of his charitable work could amount to an exceptional circumstance justifying a suspension or a reduced sentence.[28]The use of firearms by armed robbers and drug dealers is prevalent and on the increase. A person who provides firearms in the certain knowledge that they are going to be used by criminals commits a grave offence. Thomas's personal mitigation was considerable and we have considered it carefully as the Judge obviously did. We take the view that in arriving at 9 years' imprisonment the Judge took the mitigation fully into account and he could not sensibly have reduced the sentence further.[29]The appeal is dismissed. Richard Edward TORRINGTON[30]On 12th March 1997 at the Central Criminal Court Torrington, a man of 34, pleaded guilty to possessing a firearm with intent to cause fear of unlawful violence and on 7th April 1987 he was sentenced to 18 months' imprisonment by the Recorder of London. He renews his application for leave to appeal against sentence following refusal by the single judge.[31]The incident giving rise to his conviction occurred on 20 July 1996. In the early hours of that day, the applicant's step-son Gary Roberts was confronted by a group of about 7 men as he made his way home from the local public house, where he had been celebrating his birthday. There was an exchange of abuse and one of the men kicked Roberts. Upon his return home, he told Torrington of the incident. Torrington, who had been drinking, promptly went and fetched two air rifles, handing one to Roberts. The weapons were .22 rifles, each was loaded and primed, and the pellets with which they were loaded were capable of causing lethal injury.[32]The two men returned to the scene of the earlier incident and Roberts identified a man called Sanjit Singh as the person who had kicked him. Torrington kicked Mr Singh and there was a further exchange between the two, whereupon Torrington pointed the gun at Mr. Singh's face. Mr Singh responded by pushing the gun away, but this caused the weapon to be accidentally discharged. Torrington then primed the weapon and reloaded. At that, Mr. Singh ran off in fear. Torrington asked the group if they wanted to come again to the area, and they responded by telling him to calm down.[33]The police arrived at this point, and upon seeing them Torrington and Roberts ran and hid their weapons under a nearby vehicle. Torrington told the police that the group had jumped his son and indicated where the guns were. He told the police that he had brought the guns to scare the group of men.[34]Roberts pleaded guilty to a lesser charge of having a firearm and ammunition in a public place and was made the subject of a community service order.[35]Torrington is a man of previous good character, who had been a train driver for many years, although he had been off work since January 1996 through ill-health. He had a knee injury and was also suffering from depression, which had started when he came across a dead body on the track There were a number of testimonials placed before the Recorder of London that showed that this offence was out of character.[36]Mr Brigden on behalf of Torrington contends that in all the circumstances of the case, the sentence was manifestly excessive. He points to a number of mitigating features, Torrington's previous exemplary character, his plea of guilty and his clear remorse. He submits that the offence has to be seen in the context of a man who was doing what he thought was necessary to protect his step-son from further attack in the street since he believed that if this incident went by without more being done, there was a likelihood that his step-son would be picked on in similar fashion in the future. He explained the taking of the weapons as a response to his fear of being outnumbered, particularly as his knee injury would make him vulnerable. The weapons, although capable of causing lethal injury if fired at close range, were not as dangerous as other types of weapons encountered in charges of this kind. The discharge of the weapon was accepted to be accidental. Finally, having regard to his depressive illness, any sentence of imprisonment would inevitably have a profound effect upon him.[37]The Recorder of London made it clear that he viewed the carrying of primed weapons as an aggravating feature. An explanation has been advanced on behalf of Torrington that the air-rifles had been taken over to his brother in Wales in an unsuccessful attempt to sell them and that they could not be discharged prior to their return to London as it would have frightened the horses in the field available to Torrington and his brother. That excuse can at best be described as a lame one since there was ample opportunity to discharge the air-rifles safely there or upon his return if he had wished so to do. As the Judge pointed out, he took with him not only the air-rifles but also ammunition and when the gun was accidentally discharged he had proceeded to reload.[38]The single

Judge refused the application for leave saying:

"I cannot fault the Recorder's approach to this very serious matter. You instigated the taking of two obviously powerful and loaded rifles to a confrontation. The Recorder gave you credit for your plea and record, but for which the sentence would have been measured in years."
[39]We share those views. This case had the aggravating feature that loaded weapons were taken to a public place, where one was discharged, albeit accidentally. The mitigation involved in the discharge being accidental was diminished by the reloading of the weapon. Clearly credit had to be given for the plea of guilty and the previous excellent character but that could not in our judgment render a prison sentence of the length passed as inappropriate. Far from considering this sentence as manifestly excessive in all the circumstances, we consider it to be the correct sentence to reflect both the serious features of the case and the mitigation.[40]For these reasons we refuse Torrington's application for leave to appeal. Shaun Andre MARQUEZ[41]On 24th September 1997 Marquez, who is 19, was convicted at the Crown Court at Snaresbrook before His Honour Judge Samuels QC Marquez was convicted of having a firearm with intent to commit an affray, having an imitation firearm with intent to commit an affray and possession of a firearm without holding a firearm certificate. On 17th October, he was sentenced to concurrent sentences of detention in a young offender institution of 42 months for having the firearm with intent, 30 months for the like offence in respect of the imitation firearm and 18 months for possession without a certificate. He had faced a further charge of affray but he was acquitted of that allegation.[42]His application for leave to appeal against sentence has been referred to the full court by the Registrar so that it might be considered along with the other cases raising issues relating to firearms.[43]Marquez's offences came to light when the police tried to stop a car in which he was travelling with two other youths. The car failed to stop and was pursued by the police. After a few minutes, as the car turned a corner, Marquez was seen to tumble from the passenger side. One of the police officers saw him throw a silver-coloured object from his jacket before running off. He was caught and arrested and returned to the point where he had emerged from the car. There a self-loading silver-coloured automatic Colt pistol was recovered from the road, where it lay next to a watch.[44]Meanwhile the police car had followed the car in which Marquez had been until it collided with a wall, and after a chase the driver, Richard Boothe, also aged 19, was arrested. The third youth avoided apprehension. A search of the car revealed a black woollen hat with eye holes cut in it and an imitation gun.[45]Marquez denied any knowledge of the guns or the hat when interviewed but admitted that the watch found by the gun was his.[46]Forensic examination showed that the Colt pistol was in full working order although no ammunition was found. The imitation firearm was a good copy of a Baretta self-loading pistol, made almost entirely from plastic.[47]The Crown were unable to say for what purpose the gun and the imitation were being carried but contended that they must have been intended for an unlawful display of force that would inevitably cause considerable fear. Thus they charged possession with intent to commit an affray. The jury convicted both Marquez and Boothe on this basis. Boothe received identical sentences to Marquez. He was in addition convicted of dangerous driving and sentenced to a concurrent term of 9 months detention.[48]Marquez is of previous good character. At the age of 15, he had left home and lived rough for several months before finding a home with his grandmother. His girlfriend had given birth to a child and following her admission to hospital after a nervous breakdown, Marquez had had to shoulder a major part of the responsibility for care of the child.[49]Mr Tierney on behalf of Marquez contends that the sentences passed were manifestly excessive. He argues that since the reason why the weapons were carried cannot be known, the court must view these as offences towards the bottom end of the scale since to do otherwise is to find aggravating features that have never been established. When asked for what purpose persons might equip themselves with a gun, an imitation gun and the sort of balaclava type that we have described, Mr Tierney suggested that it might have been some sort of horseplay. Regard has to be had, however, to the jury's verdict and Mr Tierney agreed that whatever the ultimate intent, it must have been the intention to really frighten someone.[50]He points to the fact that there was no ammunition and hence no intention to fire the gun, and contends that the sentences must take into account that no actual use was made of either the gun or the imitation gun whatever may have been the intention.[51]He relies upon the previous good character of Marquez and argues that his age has to be borne in mind. He also asked that Marquez's role as principal carer for his son be taken into account.[52]Mr Tierney took us through a number of the authorities to which reference has been made and argued that in all the circumstances, by reference to those authorities, the sentence was simply too long.[53]We do not agree with those submissions. The aggravating features present in this case were the fact that a real firearm was involved and that all the circumstances, including the adapted hat with the eye holes cut in it, suggest that whatever the precise objective of the three men in the car, it was something that involved a degree of preparation. The mere possession of such a real firearm, for which there could be no lawful purpose, was a serious matter and the carrying of it in the car with the intention found by the jury made it significantly more serious.[54]Even allowing for Marquez's previous good character and age, we do not consider that the sentence passed was in any way manifestly excessive following conviction after a trial. It follows that we reject his application for leave to appeal. Harold Egan GOLDSMITH[55]On 18th August 1997, in the Crown Court at York, before His Honour Judge Crabtree, Goldsmith, a man of 49, pleaded guilty to three offences arising out of an armed attempt at the robbery of a jeweller. For the attempted robbery, he was sentenced to 15 years' imprisonment, for having a firearm with intent to commit an indictable offence, 15 years' concurrent and for possessing a firearm when prohibited 5 years' concurrent.[56]His application for leave to appeal against sentence has been referred to the full court.[57]Goldsmith is a persistent armed robber. In 1968, he went to Borstal following a sentence at the Central Criminal Court for two assaults with intent to rob involving arms. In 1971, he was sentenced to 2 years' imprisonment for offences that included using a firearm with intent to resist arrest. In 1979, he went to prison for 6 years for offences that included possession of a firearm and ammunition. In 1985 he was sentenced to 15 years' imprisonment for six armed robberies or attempted robberies and in 1994 he was sentenced to 8 years' concurrent with the term he was already serving for armed robbery.[58]He was released in August 1996. The long sentences he had served had done nothing to deter him, because on 12th June he entered a jeweller's shop in Scarborough where Mr Briggs, the jeweller, and his wife were working and asked to see a ring. Having doubtless seen what he needed in order to commit a robbery, he left returning an hour later. He again asked to see the ring and then produced a gun threatening to shoot the jeweller if he did not open the till. Notwithstanding his fear for his own safety and for that of his wife, the jeweller tried as he put it to "bluff him". At that, the gun was discharged into the ceiling whereupon Goldsmith left the shop. He was followed by a nearby shopkeeper, the police were alerted and as a result Goldsmith was arrested nearby. The gun was a .22 pistol capable of firing .22 pellets. It can come as no surprise to anyone that the jeweller and his wife were terrified by what had happened.[59]Goldsmith subsequently wrote to Mr Briggs. The letter expressed the hope that Mr Briggs, whom he described as a "brave old bastard", had not been too upset. It went on to suggest that if Mr Briggs had been on his own he might have shot him but that he was "too much of a gentleman" to do that in front of a lady. It carried the advice that the next time someone came into the shop to rob him with a gun, he should let them take what was there. The letter is an astonishing document, portraying Goldsmith's attitude to such offences with no hint that his conduct is in any way a matter for reproach.[60]With this background, the Judge quite naturally had protection of the public uppermost in his mind when he passed sentence. He first considered a life sentence but after making inquiries about Goldsmith's previous offences and finding that all the offences involved air pistols or starting pistols, he rejected that option and focused instead on s. 2(2)(b) of the Criminal Justice Act 1991. In passing sentence, he explained that viewed in isolation he would have considered 10 years' imprisonment as the correct sentence but when he considered the need to protect the public, a longer sentence of 15 years was appropriate.[61]Mr Bradshaw on behalf of Goldsmith attacks the judge's conclusion that 10 years was the appropriate sentence commensurate with the offence. He then argues that any increase was unnecessary and certainly a 5-year increase was excessive to make allowance for the protection of the public so that the resulting sentence is, he submits, on any view manifestly excessive for a single attempted robbery, only involving a starting pistol and where there was a plea of guilty. He contends that such a sentence is only appropriate for what has sometimes been described as a "first division" offence and that this was not such a case.[62]Having considered those various submissions, we have concluded that even without resorting to s. 2(2)(b) of the 1991 Act, 10 years was justified for this armed robbery. Goldsmith knew from his earlier visit to the shop the nature of the people that he was going to put in fear. The weapon he took with him was capable of being discharged, it was loaded and it was in fact discharged.[63]We are equally clear that the judge was right to conclude that this was a case to which s. 2(2)(b) applied and that it was a case where that power should be exercised. It is clear from Goldsmith's record and from his attitude to this offence, as manifest from his letter to Mr Briggs, that when at large he is likely to commit further offences of this very serious kind with potentially serious consequences for his victims. The subsection requires that the Court "shall" pass such sentence "as is in the opinion of the court necessary to protect the public from serious harm from the offender". Since a previous 15 year sentence did not deter Goldsmith from re-offending in this way, it is difficult to see how a judge could properly conclude that the necessary period of protection required should be any shorter.[64]For these reasons we view Goldsmith's sentence as an entirely proper one and we reject his application for leave to appeal.

Cited in 1 later judgment