Attorney General's Reference No. 58 OF 2006 [2006] EWCA Crim 2827

Case No 200602795 A3[2006] EWCA Crim 2827
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 9th October 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE LATHAM
Vice President of the Court of Appeal Criminal Division
MR JUSTICE SIMON
MRS JUSTICE GLOSTER DBE
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 58 OF 2006
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR R HORWELL appeared on behalf of the ATTORNEY GENERAL
MR D WILLIAMS appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE LATHAM:

[1]This is a reference under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence imposed on two offenders, Joseph Richer and David Finch, at the Maidstone Crown Court on 12th May 2006. We give leave to the Attorney to make his reference.[2]The sentences in question were imposed for two counts in an indictment. The first count charged the offenders with possessing a prohibited firearm contrary to section 5(1)(aba) of the Firearms Act 1968; the second count charged them with possessing ammunition without a firearm certificate contrary to section 1(1)(b) of the Firearms Act 1968. The defendant Richer pleaded guilty to the first count on 1st April 2005 and not guilty to count 2, but then changed his plea to that count to guilty on 27th September 2005. The offender Finch maintained his plea of not guilty to both counts but on 27th April 2006 was found guilty on each count following a four day trial.[3]His Honour Judge Carey sentenced the offenders as follows. As far as count 1 of the indictment was concerned, he sentenced the offender Richer to 3 years and 9 months' imprisonment and 18 months' imprisonment concurrently on count 2. The offender Finch he sentenced to 5 years' imprisonment on count 1 and 2 years' imprisonment concurrent on count 2.[4]The circumstances giving rise to those offences were that the offenders were friends who lived in or near Rugby and on 6th December 2004 they had travelled together from Rugby to Maidstone in a Mercedes motor vehicle which was owned by the offender Richer's partner. They were followed on their journey by police officers who ultimately stopped them. At the time that they were stopped, the offender Richer was driving the motor vehicle and the offender Finch was in the front passenger seat.[5]They were challenged by the police on the basis that there was a firearm in the car which they both denied. The car was searched; and under the front passenger seat was a storage drawer which, when opened, contained a small plastic bag in which was a semi-automatic pistol. Inside the pistol was a magazine which contained 15 rounds of live ammunition. The pistol was in working order. Inside the bag were found four further rounds of live ammunition appropriate for the pistol. One fingerprint from the offender Finch and two thumbprints from the offender Richer were found on the exterior of the barrel.[6]When they were interviewed the offender Richer claimed that he had been forced by a man called "Taff" to transport the firearm from Rugby to Maidstone. He claimed that this had been as a result of his being threatened by Taff in relation to a debt of £14-15,000 for clothing and that Taff had forced him under threat of death to take the firearm to the Maidstone service station on the M20. He said that he had not known whether the firearm was real or imitation. He and Finch, he said, having arrived at the motorway service station, found that there was no-one there to meet them and had decided to return home when they were stopped by the police.[7]When the offender Finch was interviewed, he claimed that he had travelled with his friend from Rugby to keep him company. He had no knowledge of the pistol and he had no recollection of touching the plastic bag which contained the pistol. As we have indicated, the offender Richer pleaded guilty. The offender Finch gave the account that he had given to the police in interview but was disbelieved by the jury.[8]Both offenders have previous convictions. It is not necessary to identify those previous convictions in detail. But the sentencing judge accurately described them as "middle weight" criminals in the criminal world.[9]When the learned judge came to sentence them, he considered both the accounts given to him in mitigation and, of course, the evidence given by the offender Finch before the jury. He concluded that he should not distinguish between either of them as far as their involvement and their culpability was concerned. He acknowledged that he would never know precisely what was going on that night. However, he concluded that, as far as the offender Finch was concerned, there was no exceptional circumstance which could justify the conclusion that he should not receive the minimum sentence appropriate for the offence charged under count 1, namely 5 years' imprisonment.[10]As far as the offender Richer was concerned, he concluded, however, that there were exceptional circumstances, in particular the fact that he had pleaded guilty at an early stage to the substantial charge in the indictment. He put it as follows:
"I therefore have to consider the impact of that conclusion upon Joseph Richer, and in circumstances where he has faced up to his criminality long ago, and should in all justice be given credit for that fact. Does that amount to an exceptional circumstance relating to this offender in the somewhat unusual circumstances of this case? I conclude that it does, that it offends against anyone's sense of fairness that a defendant should be deprived of his otherwise fair entitlement to a discount by reason of the fact that his co-defendant pleaded not guilty and was disbelieved, and had no such mitigation, even less, exceptional circumstances."
It was in those circumstances that he concluded that he was entitled to impose a lesser sentence than the minimum sentence otherwise required by the relevant statute.[11]On behalf of the Attorney General, Mr Horwell has submitted that the judge was fundamentally wrong in two essential respects. Firstly, as to the overall criminality involved in the offences with which the court was concerned, the sentence imposed upon the offender Finch was quite simply too low. The sentence that was appropriate, he submits, should have been in the region of 7 to 8 years' imprisonment, bearing in mind in particular the guideline case of Avis [1998] 2 Cr.App.R(S) 178, and in the light of the fact that Parliament has now decreed a minimum sentence of 5 years' imprisonment for possession of a firearm. The judge therefore started with too low a starting point when he then turned to consider the sentence appropriate to the offender Richer. As far as he was concerned, Mr Horwell submits on behalf of the Attorney General that the judge was in any event not entitled to treat a plea of guilty as amounting to an exceptional circumstance entitling him to depart from the minimum sentence required by the statute. For that he has directed our attention to paragraph 23 of the judgment of this court in Jordan, Alleyne, Redfern [2005] 2 Crim.App.R(S) 44 reported at page 266.[12]It seems to us that the first question that we have to ask before we turn to the issue raised by the question of whether or not exceptional circumstances arise in this case, is whether indeed the judge did fall into error in his assessment of the criminality of these two offenders in this case. We are quite satisfied that he did. The two offenders here were in possession of a loaded pistol in public in circumstances in which, on any account, it was intended that that pistol should be made available for use. The position accordingly is that significant deterrent sentences were required, irrespective of the minimum sentence requirements of the statute.[13]We agree with Mr Horwell that the appropriate bracket for Finch in the present case -- bearing in mind as we do the fact that the precise circumstances in which this pistol was in these offenders' possession will never be known to this court as it was unclear to the sentencing judge -- was between 7 and 8 years' imprisonment. The sentence in fact imposed was, we conclude, unduly lenient, to a significant extent.[14]In sentences of this sort, the scope for any mitigation at this level on the basis of double jeopardy has been considered in the case of Webster and French as being a matter for the discretion of the court. It is relatively limited. But in all the circumstances of the case, in relation to the offender Finch, we take the view that the right sentence for this court to impose is one of 7 years' imprisonment.[15]We then turn to the position of the offender Richer. Bearing in mind the fact that the appropriate sentence for his co-offender Finch was one of 7 years' imprisonment, he is entitled to appropriate credit for his plea of guilty, but that, in our judgment, is sufficiently taken into account by reducing his sentence to one of 5 years' imprisonment. The question, therefore, of whether or not his guilty plea amounts to an exceptional circumstance justifying a departure from the minimum sentence provisions in the statute does not strictly arise in this case. Mr Horwell has, however, not shirked from the proposition that had we considered that the judge was correct in the first instance as to the level of criminality -- in other words that the appropriate sentence was the minimum sentence, that is 5 years imprisonment -- it should not as a matter of principle have been permissible for Richer to obtain a discount from the statutory minimum sentence simply because he pleaded guilty, on the ground that that amounts to "exceptional circumstances".[16]This court, in the judgment to which we have already referred in Jordan, Alleyne, Redfern, indicated that a guilty plea is not in itself to be considered an exceptional circumstance. This case does not require us to examine whether where there are two defendants in the position of the offenders Richer and Finch that principle should be modified in any way. The logic in the judgment in that case suggests not. But in the present case, all we need say is that the sentences on both these offenders were unduly lenient to the extent we have indicated, resulting in sentences of 7 years for the offender Finch and 5 years for the offender Richer.