Evans v R [2005] EWCA Crim 1811

[2005] EWCA Crim 1811Case No 2005/00971/A4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
HIS HONOUR JUDGE PLATT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 July 2005
Before
LORD JUSTICE PILLMR JUSTICE OUSELEYMR JUSTICE DAVIS
Between
PETER EVANSAppellantTHE QUEENRespondent
MR A D WILSON for AppellantHearing Hearing date : 10 June 2005
Judgment
[1]On 9 September 2004 at the Crown Court at Snaresbrook, Peter Evans pleaded guilty to a series of offences under the Firearms Act 1968 (“the 1968 Act). On 20 January 2005 he was sentenced by His Honour Judge Platt as follows: Count 1 – Theft - 3 years Imprisonment concurrent to Count 4 Count 2 – Possessing ammunition without a certificate – 3 years Imprisonment concurrent Count 3 – Possessing Expanding Ammunition – 3 years Imprisonment concurrent Count 4 – Possessing a prohibited firearm – 5 years Imprisonment The total sentence was therefore one of five years imprisonment. Other similar offences were taken into consideration. Count 1 – Theft - 3 years Imprisonment concurrent to Count 4 Count 2 – Possessing ammunition without a certificate – 3 years Imprisonment concurrent Count 3 – Possessing Expanding Ammunition – 3 years Imprisonment concurrent

Count 4 – Possessing a prohibited firearm – 5 years Imprisonment

[2]Evans appeals against sentence by leave of single judge.[3]The appellant was employed as a civilian station reception officer at Dagenham Police Station. His main role was to deal with members of the public and included taking into police possession items of property handed in.[4]On 18 August 2004, Mr Holly handed in a considerable quantity of ammunition he had come across in the course of his duties as a caretaker. Over twenty boxes each containing fifty rounds were handed to the appellant who said he would take care of them. Mr Holly was surprised at the lack of further enquiry of him and contacted the police. It was found that no record had been made of the ammunition handed in.[5]The appellant was questioned at the end of the shift and admitted that he had the ammunition. He said he had not time to deal with it and had put it somewhere safe. When the enquiry was pursued, he said that it was in the back of his car and he had thought he might be able to use it. A total of 1139 rounds of ammunition were recovered from the boot of the appellant’s car. The appellant’s home was then searched and the appellant produced a firearm certificate. A gun cabinet was found in a wardrobe in the main bedroom. Rifles, shotguns and ammunition were recovered. The appellant said he was a gun enthusiast and liked to shoot at the rifle range. Officers found that in a garden shed the appellant had the facility to make his own ammunition.[6]Further weapons were found in two gun cabinets in the loft and two antique weapons and a silver handgun in a case were found outside the cabinets on the loft floor. Also found were a quantity of “dum-dum” expanding bullets which are “prohibited ammunition” under section 5(1A) and 5(2) of the 1968 Act and in international law. He said he had been given them. The ammunition covered by Count 2 included bullets of several calibres.[7]The appellant denied having further firearms in his possession. However, a specialist firearms team searched the premises and a further seven firearms were recovered, some concealed under floor boards. They included a semi-automatic firearm, which was a .22 self-loading pistol with a barrel less than 30cms in length, a “prohibited weapon”, under section 5(1A) and 5(2), and the subject of Count 4. The appellant agreed that the handgun was a working gun and that he had used it on a rifle range. He had a silencer for use with it. Also found were a blunderbuss black powder gun, a muzzle loading handgun, a silver handgun and a signal flare.[8]Section 51A of the 1968 Act provides that in the case of an individual who is convicted of an offence under, amongst other paragraphs, section 5(1) (aba) of the Act, the court “shall impose an appropriate custodial sentence … for a term of at least the required minimum term … unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.” In the case of an offender who is aged eighteen or over when convicted, the “required minimum term” in section 51A(2) means five years. That provision covered the self-loading pistol, the “prohibited weapon” in Count 4.[9]When sentencing the appellant, the judge stated that the theft was in breach of trust. He stated that the ammunition found was capable of causing death or very serious injury. The judge accepted that the appellant was keeping the items for his own personal use and not with any intention to use them for a criminal purpose. He held that the contents of a psychological report on the appellant did not amount to “exceptional circumstances” within the meaning of Section 51A.[10]The appellant is fifty five years old and of previous good character. The judge stated that he took account of the mitigating factors, the guilty plea, the previous good character, the useful work the appellant had done in the community, including as a special constable. The judge referred to the devastating effects the convictions had had on the appellant’s life and that of his family.[11]Before this court, Mr Wilson relies on the same mitigating factors. The appellant was a genuine gun enthusiast and his collection had been built up over a long period. His gun club had supplied a reference and other referees spoke of him as a good neighbour, family man and citizen.[12]In relation to exceptional circumstances, counsel relies on a psychological report provided by Mr A J Anderson, Chartered Clinical Psychologist, which was also before the sentencing judge. Mr Anderson noted that the appellant’s daughter had reported signs of obsessive anxiety in the appellant for the past twenty years. He states that the appellant impressed him as a man who has “severe difficulties with obsessive compulsive symptoms, occasional depression, health anxiety, and anxiety symptoms that appear to pre-date his arrest and incarceration”. The appellant stated that he could not stop himself from hoarding the few guns that were given him by friends and associates over the years. Admitting that it was wrong to possess them, the appellant said that he could not bring himself to dispose of the guns or other long-held possessions. He also had back pain and severe headaches following an injury many years ago.[13]On psychological testing, Mr Anderson found a severe level of Obsessive Compulsive Disorder (“OCD”) and clinically significant levels of anxiety and depression. The appellant also suffered from a “deep seated suspiciousness of others that is not due to the events since his arrest but due to the long term effects of unresolved issues surrounding safety concerns”. Mr Anderson stated:
“These tests confirm his obsessive need to hoard goods in general but more specifically they confirm a need to hoard goods that represent security, such as guns and ammunition. The results also confirm obsessive safety needs in community and explain his obsessive concerns for self-defence and community awareness/prevention of crime”
. Mr Anderson concluded that due to OCD and associated anxiety/depression, the appellant felt compelled to obtain and store guns and ammunition.[14]Counsel submits that the evidence of Mr Anderson, together with the other mitigating factors, amount to exceptional circumstances relating to the offender, within the meaning of section 51A of the 1968 Act.[15]Considering very different circumstances, Douglas Brown J, giving the judgment of this court in Jordan, Alleyne and Redfern[2004] EWCA Crim 3291, stated that cases where “real exceptional circumstances” arise will be rare. In R v Blackall [2005] EWCA Crim 1128, this court found that there were exceptional circumstances relating to the offender where the defendant was a paraplegic who would find it much more difficult than the normal prisoner to cope with prison and to whom a term of imprisonment thereby represented a more severe sentence. A sentence of three years imprisonment was substituted for a sentence of five years.[16]In our judgment, the appellant’s psychological condition does not constitute exceptional circumstances within the meaning of the section. The appellant knew what he was doing and knew that what he was doing was wrong. He retained the prohibited weapon with that knowledge. The intervention of a specialist firearms team was required to find the weapon in his house. In the context of a statute intended to protect the public from the possible consequences of unlawful possession of firearms, evidence, in an intelligent man well aware of the public issues involved, of feelings of compulsion to obtain and store guns, does not amount to exceptional circumstances.[17]Even had exceptional circumstances relating to the offender been established, we would have considered an overall sentence in the region of five years to be required. The appellant was employed by the police force in a position of responsibility and he used that position to steal ammunition. A serious breach of trust was involved. The quantity, range and type of weapon and ammunition in his possession, together with the manner and length of time of that possession, required a severe sentence. Deterrence was a relevant factor in sentencing. Notwithstanding the substantial mitigating factors, an overall sentence in the region of five years would have been appropriate even had the appellant’s obsession amounted to an exceptional circumstance.[18]This appeal is dismissed.