Attorney-General's Reference No.35 of 2007 [2007] EWCA Crim 1523

Case No 200701788 A1

[2007] EWCA Crim 1523

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 10th May 2007

Strand

London, WC2

B E F O R E:

LORD JUSTICE SCOTT BAKER

MR JUSTICE MITTING

MR JUSTICE TEARE

REFERENCE BY THE ATTORNEY GENERAL UNDER

S.36 CRIMINAL JUSTICE ACT 1988

ATTORNEY-GENERAL's REFERENCE NO 35 OF 2007

Computer Aided Transcript of the Stenograph Notes of

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Mr A Darbishire appeared on behalf of the attorney general

Mr A Noble appeared on behalf of the offender

J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]The Attorney General applies for leave to refer the sentence imposed on Mark John Hird by Judge MacMillan on 9th March of this year in the Crown Court at Liverpool as unduly lenient. We have granted him that leave and now proceed to deal with the substantive application.

[2]Hird, aged 39, had pleaded guilty to possession of an imitation firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968. The sentence imposed was a community order of 100 hours unpaid work.

[3]The facts of the case are as follows. At about 7.30 on 9th October of last year, Paul Hill was sitting at the bar of the Ellesmere public house in Leigh, near Wigan, Greater Manchester. The offender walked in. There was a history of friction and violence between the offender and Mr Hill, which had recently escalated.

[4]The offender walked up to Mr Hill, reached behind his back and produced what Mr Hill described as a black hand gun, which he believed was real. The offender raised the gun towards him. Mr Hill panicked and grabbed the offender's wrist. As he did so, the offender pushed the gun against his head, shouting aggressively at him, "what does it feel like to die?" Two other male customers intervened and took hold of the offender's arm and tried to remove the gun from his possession, as the gun was being waved in the air. Mr Hill fled to the toilets. There was a general commotion. A woman present, fearing for her own life and that of her two young children who were also in the public house, began to scream and desperately sought to get her children to safety. The offender raised his voice, saying something similar to "you're all going to die".

[5]In the midst of this scene the following exchange took place between the offender and another local in the public house. The man said, "that's not real, it's plastic", to which the offender replied, lifting the gun and putting it to the forehead of the customer, "do you want to die as well?", to which the man replied, "pull the trigger, I dare you". The offender then lowered the gun and walked out of the pub via the main entrance. As did so, he turned to Mr Hill, who was still standing at the entrance to the ladies toilet, pointed the gun at Mr Hill and said "I'm going to kill you".

[6]The police were called to attend the public house. The offender, who was still nearby, was identified to them and arrested. It was noted that he was drunk. He was not in possession of the gun on arrest, it had apparently been returned to the person from whom it had been borrowed earlier on that day.

[7]The offender was interviewed the following day. He made no comment to all the questions asked. He produced a prepared statement which did not address whether or why he produced the gun in the pub, but specifically denied:(a) pressing the muzzle of the gun against Mr Hill's head;

(b) speaking to Mr Hill at all in the pub;

(d) saying "you're all going to die".

[8]Following his arrest, the offender asked the police if he could take them to locate the gun in order that they would recover it and establish that it was not in fact dangerous. The gun was recovered from the home of an associate of the offender the day after his arrest. On the gun's recovery, the offender commented to the effect that, "I'm in less trouble now. I knew it wasn't a real gun, it's a B-B [ball-bearing] gun".

[9]The weapon was a Russian manufactured 4.5 mm CO2 powered repeating air pistol. It is designed as a faithful replica of the Russian service pistol, the 9 mm Makarov SLP, and is exact in every detail except for the calibre and method of functioning. According to the owner, the offender had taken only the body of the weapon and not the magazine or ammunition. In that condition it was incapable of being fired. The weapon, when complete, is intended for target practice and vermin control. It is capable of inflicting a severe wound and possible fatality against a human target. It was consequently a lethal barrelled weapon within the terms of section 51 of the Firearms Act 1968, although not within the "especially dangerous" category.

[10]None of those who had witnessed the incident made victim impact statements. Paul Hill indicated in the statement he made on the day of the offence that he did not wish to do so at that time. However, he commented in that statement that "although no physical injury was caused to me, this incident has shocked me, and caused me to fear for my life, at the very least my personal safety". Scott Williams, another witness, said:

"I believed that the gun was real. The incident had left me shaken and scared that someone I know could be in possession of a real gun. I really thought that someone was going [to be] shot and killed in the pub"

. Finally, Kelly Kennedy, who was also present in the pub with her two young children, said that throughout the whole incident she feared for both her life and the lives of her children, she did not know what to expect at any time throughout the whole of the incident and was absolutely terrified.

[11]The offender has previous convictions between 1984 and 1992, that is between the ages of 16 and 25. He was convicted of a number of relatively minor offences, for which non-custodial penalties were imposed. The last of those matters, committed in 1992, was for possession of an offensive weapon in a public place, for which he was bound over for 18 months. He was not convicted of any further offence until 2002. In 2002 he was convicted of a number of offences, including driving whilst disqualified, for which he received community punishment orders, which were subsequently revoked following breach proceedings and replaced by a term of 90 days' imprisonment. There also appears in August 2003 to have been a caution for an offence of wounding with intent, but we have no details of what was involved.

[12]The court before which the offender was sentenced had a pre-sentence report, and we now have a supplementary report. The report described the offender to be at a medium to low risk of re-offending, subject to the risk of further drink driving matters, given certain alcohol-related issues identified in the report. The report indicated that, if a custodial sentence was not imposed, the offender would be suitable for a suspended sentence with certain requirements attached.

[13]In the supplementary report, there is a summary of the background events, or some of them, that led to the offence. Three days prior to the commission of the offence, the offender and his partner were said to have been attacked by Mr Hill and his partner. The offender reports that there had been previous conflict between himself and Mr Hill before the incident. On the day of the offence Mr Hird had attended the funeral of a close friend. He states that, following the funeral, he went to the wake at a public house. He estimated he had been drinking for about ten hours and described the consumption of a high level of lager and spirits. He claimed that during the day he had been discussing his current conflict situation with several friends, admitted already feeling angry about this, and that this was exacerbated by several friends who wound him up about the situation. He admitted that he was becoming angrier and angrier and it appears that it got to the point where he decided to take action. At about 7.30 he left the wake, went to a friend's house, collected the air pistol which he used in the offence and then went to the public house that he knew the victim visited every day, and it was in that context that the offence was committed.

[14]We would emphasise that offenders cannot take the law into their own hands and expect the courts to regard that as an excuse. On the other hand, it has been submitted by Mr Noble, in the course of mitigation, that there was an element of provocation in the background to this offence that the court should take into account, and we do so.

[15]In passing sentence, the judge said that the offender was in drink at the time, but to his credit had admitted the offence and had written a letter to the court expressing his remorse. He was normally a hard-working decent member of society whom he did not wish to send to prison.

[16]We observe that the judge did not call on the offender's counsel to mitigate, having taken a clear view of the sentence that he regarded as appropriate.

[17]Mr Darbishire, who has appeared before us for the Attorney General, has helpfully referred us to a number of authorities, in particular, the case of Avis

[1998] 1 Cr App R 420

, which is the leading authority in relation to firearms offences; the case of Brown

[2004] 1 Cr App R (S) 28

; Goluchowski

[2006] EWCA Crim 1972

; and, finally, Attorney General's Reference No 49 of 1999 sub nom R v Hinchcliffe (Allen Patrick)

[2000] 1 Cr App R (S) 436

. Mr Darbishire submits that the authorities show that the range of sentence for this type of offence is two to three years depending on the plea, the age of the offender and his record. We accept that submission.

[18]In Hinchcliffe, Kennedy LJ said that the court's attention had been invited to a number of authorities dealing with this type of offence, he mentioned that the guideline case was Avis and then referred to the Lord Chief Justice's observations at 423G, where he said:

"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."

Then Kennedy LJ drew attention to the four questions that the court had to consider:

"1. What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. 2. What (if any) use has been made of the firearm? 3. With what intention (if any) did the defendant possess or use the firearm? 4. What is the defendant's record?"

Mr Noble submits that two of those questions, namely numbers 1 and 4, provide answers in favour of the offender, whereas of course numbers 2 and 3 do not.

[19]Now, the facts of Hinchcliffe were these. The offender spent an evening drinking and then hired a taxi to take him to his home address. When the taxi arrived at the offender's home and the driver asked for the fare, the offender went into the house and returned with what appeared to be a gun. The offender made movements which indicated that he was cocking the gun. Following a conversation, the taxi driver drove away and called the police. The offender's house was surrounded by armed police officers and he was arrested after half an hour. Officers searching the offender's house found a replica hand gun and replica ammunition. He was sentenced to a community order, which this court increased as being unduly lenient to one of 12 months' imprisonment, having taken into account double jeopardy. Kennedy LJ said at page 439:

"In our judgment, at the time when sentence came to be passed in the present case, any sentence below a sentence of two years' imprisonment would have been inappropriate."

The sentence would be passed of course at a time after the plea was known, in that case it was a plea of guilty, and all the mitigation taken into account.

[20]Mr Darbishire submits that the present case falls into a more serious category than Hinchcliffe because of the public place in which the offence was committed and the number of people who were present and were in fear. On the other hand, this case has a background involving some element of provocation, and it is trite to say that each case must of course be considered on its own facts.

[21]We have come to the conclusion, taking into account the mitigation drawn to our attention by Mr Noble, that this is a case that falls into the same category of description given by Kennedy LJ in the passage to which we have referred, that any sentence below two years' imprisonment at the point of sentence would have been inappropriate.

[22]The mitigation advanced can be put into the following categories. First, the background to the event - this was not a case of entirely gratuitous violence. Second, the background of the offender himself - he has a solid employment and a good work record and only a limited number of previous convictions and nothing of the present nature. Further, he is assessed at a moderate or low risk of any further violence, and there are real indications that he has learned his lesson and shown remorse, as well as there being a number of difficulties in his home life with which he has to cope.

[23]Double jeopardy is, in our judgment, a very relevant factor in a case such as the present where the offender has first before sentence been tagged for a significant period, but, more particularly, has served over a quarter of the community penalty that was imposed upon him and now faces an immediate prison sentence.

[24]Taking double jeopardy into account and the various matters to which we have adverted, we have come to the conclusion that the right sentence now to be imposed is one of 12 months' imprisonment, and that is the sentence that we will impose.

LORD JUSTICE SCOTT BAKER: What about arrangements for surrender?

[26]MR DARBISHIRE: I look to my learned friend. If a police station that is convenient to the offender can be identified, then he could be ordered to surrender there by this evening or some point tomorrow.

LORD JUSTICE SCOTT BAKER: Leigh police station?

[28]MR NOBLE: I think it is Leigh, my Lord.

LORD JUSTICE SCOTT BAKER: Leigh police station by midday tomorrow.

[30]MR DARBISHIRE: And the sentence to run from his surrender.

[31]MR NOBLE: Much obliged.

LORD JUSTICE SCOTT BAKER: Has he spent any period in custody?

[33]MR NOBLE: No.