Attorney Generals Ref 45 of 2008 [2008] EWCA Crim 2019

Case No 200803755/A3[2008] EWCA Crim 2019
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 19th August 2008
Strand
London, WC2A 2LL
B e f o r e:
MR JUSTICE GAGE
MR JUSTICE TREACY
MR JUSTICE BEAN
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 45 OF 2008
Computer Aided Transcript of the Stenograph Notes of
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Mr M Aldred appeared on behalf of the Attorney General
Mr S Akinsanya appeared on behalf of the Offender
J U D G M E N T

Lord Justice Gage:

[1]This is a reference by HM Solicitor General of a sentence which she regards as unduly lenient. She seeks the leave of the court to refer the sentence to this court. We grant leave.[2]The offender, Amar Brahimi, is aged 16. He was born on 6th December 1991. On 18th May 2008 he pleaded guilty to two offences: first, possession of a prohibited weapon, namely a handgun, which had a barrel of less than 30 cms in length contrary to section 5(1)(aba) of the Firearms Act 1968; secondly, possession of ammunition without a firearm certificate contrary to section 1(1)(b) of the Firearms Act. On 13th June he was sentenced to a 12-month detention and training order on each count concurrently. He had been in custody for 70 days at the time of the sentence. The judge made allowance for this period when passing sentence.[3]The facts are as follows. On Tuesday 4th March 2008 police officers executed a search warrant under section 23 of the Drugs Act 1971 at the home address of the offender. During the search floor boards were lifted in the hallway of the premises. There, a white sock was found containing a converted 8 millimetre blank firing pistol hidden beneath the floor boards. The offender told the police that he would talk about the gun at interview after he had spoken to a solicitor. It was later discovered that within the pistol's magazine was a round of ammunition capable of being discharged. In addition, there was recovered from the offender's wardrobe a set of body armour.[4]The offender was arrested. He was detained at South Norwood police station where he was interviewed. He gave the following account. He said that an incident had occurred in October/November 2007 where three men entered his home armed with a firearm and assaulted his father and brother, hitting them repeatedly over the head with the firearm. As a result of this incident, a boy, who he did not name, save only to say he was called John, gave him the firearm wrapped in the sock as protection should the assailants ever return. He knew it was a gun. Initially he said that he did not know whether it was real. However, he said that he looked at the handle and may be touched it and looked at it again a couple of weeks later. He accepted that he had it for his own protection. He said he was considering giving the weapon back to John but did not consider taking it to a police station. He thought that it was an offence to have a weapon. He bought the body armour for his protection approximately two months before his arrest.[5]The firearm was examined by the Forensic Science Service. It was found to be a modified blank firing 8 millimetre pistol. Originally it had a solid barrel to prevent the discharge of any projectile. When recovered the barrel had been replaced with a piece of steel tubing making it possible for bulletted ammunition to be fired. Accordingly, it was classified as a firearm as defined in section 57(1) of the Firearms Act 1968 and as a prohibited weapon by virtue of section 5(1)(aba) of the Firearms Act 1968. The magazine was also examined. It was found to contain an improvised projectile. The firearm was test fired with that particular projectile, among others, and found capable of discharging projectiles with sufficient force to cause lethal injury. Accordingly, the projectile was classified as ammunition as defined under the provisions of section 1(1)(b) of the Firearms Act.[6]So far as the offender is concerned, as we have said, he was 16 years old at the date of the offence and the date of the sentence. He has a number of previous convictions, including offences of violence and possession of weapons, namely two offences of a robbery in 2005, for which he received a six month referral order for each offence; possession of an offensive weapon, a bladed article, on school premises in 2006, for that he received a supervision order of 12 months; and common assault, committed in February 2008, for which he was remanded on police bail on the same day and sentenced on 11th April 2008 for this offence to a fine of £100 and subject to a compensation order of £10.[7]There was a pre-sentence report before the court. In that report the author commented on his assessment of the risk posed by the offender at paragraph 4.1. The author of the report said:
"Through the commission of this offence, it is clear that Amar was in contact with more criminally entrenched, sophisticated offenders than himself. However, the level of his association and involvement with them remains unclear and it is, therefore, difficult to determine whether reoffending of this magnitude is imminent and whether Amar will cause serious harm when he is released. 4.2. Amar has stated on many occasions that the firearm was never used by him and that he was merely in possession of it. However, by his own admission, he has stated that he would have used the weapon to prevent harm being caused to himself and his family and, having not thought through the implications of this, this is very concerning. Amar has previous minor offences involving violence recorded against him and this offence represents a significant escalation in seriousness, with the common and underlying features of recklessness, impulsiveness and a lack of understanding about the longer term consequences prevailing throughout."
[8]Finally, at paragraph 4.4 it is stated:
"In the absence of this, it is my view that this somewhat naive and immature young person will struggle with leading a law aiding life on his release. For all these reasons, I would currently assess Amar as presenting a high risk of reoffending and high risk of serious harm."
[9]The judge in the course of discussions with prosecuting counsel correctly identified that the offence attracted a minimum term of three years' detention in the absence of exceptional circumstances. In the course of his sentencing remarks he referred to the previous attack on the offender's family. He found that the offender's possession of the firearm in the light of the previous attack, coupled with his age and immaturity, amounted to exceptional circumstances. He said:
"Now, I have decided that I can just consider this as an exceptional case, but it is a very borderline decision. And I do take into account your age and immaturity, alongside the explanation -- which has not been disputed and is referred to in the pre-sentence report as well -- as to how you came into possession of the weapon. And it is not a case where you actually used it or were on your way to use it; I have taken that into account as well despite all the negative things that I have said about you."
Accordingly he passed the sentence to which we have referred.[10]The Solicitor General identifies the following aggravating features which appear to be present. The firearm was real; the firearm was loaded, capable of discharging the projectile with lethal force; it was a prohibited weapon with no lawful use; the weapon was kept with a view to use; the offender has previous convictions for violence and weapons, and the offence was committed whilst he was on police bail for the common assault to which we have referred.[11]The following mitigating features are identified as being present. The offender was 16 years old when the offence was committed, he admitted the offences in interview and pleaded guilty and the firearm was not used.[12]The Solicitor General through counsel on her behalf, Mr Aldred, draws attention to a number of decisions of this court to which we will refer briefly later in this judgment. It is submitted that the judge was wrong to find exceptional circumstances.[13]So far as the offender is concerned, Mr Akinsanya, who appears on his behalf, has said everything that can possibly be said in his favour in concise and persuasive submissions. Principally his submission is that the judge in this case, a very experienced judge, was fully aware that the appropriate sentence, absent exceptional circumstances, was one of a minimum term of three years. Before him were all the facts of the offence and he reached the conclusion that he was able in the circumstances to find that there were exceptional circumstances. The submission is that this court should not interfere with that finding.[14]Mr Akinsanya accepts that the authorities would appear to suggest that the sentence was unduly lenient. However, he submits that if this court were to take that view it should exercise its discretion not to interfere with the sentence.[15]As we have said, we have been referred by counsel for the Solicitor General to a number of decisions of this court. They are R v Jordan [2005] 2 Cr App R(S) 44, Attorney General's Reference No 5 of 2005 [2005] EWCA Crim 880, R v Rehman and another [2006] 1 Cr App R(S) 77, R v Blackall [2006] 1 Cr App R(S) 22, and R v Lucas [2007] 2 Cr App R(S) 81. These cases comment on the principles involved where mandatory minimum terms apply. They also provide examples where the court has found either that there were exceptional circumstances justifying the imposition of a sentence of less than the minimum term, or that no such exceptional circumstances existed.[16]In Rehman the court said in the judgment given by Lord Woolf, Lord Chief Justice, that the court should adopt a holistic approach. It would not look at each circumstance separately. At paragraph 11 the judgment contains the following passage:
" ... it is not appropriate to look at each circumstances separately and to conclude that it does not amount to an exceptional circumstance. A holistic approach is needed. There will be cases where there is one single striking feature, which relates either to the offence or the offender, which causes that case to fall within the requirement of exceptional circumstances. There can be other cases where no single factor by itself will amount to exceptional circumstances, but the collective impact of all the relevant circumstances truly makes the case exceptional."
[17]Later in the judgment the court stated what the proper approach of this court should be when considering a decision that there were exceptional circumstances. At paragraph 14 the court stated:
"The section makes clear that it is the opinion of the court that is critical as to what exceptional circumstances are. Unless the judge is clearly wrong in identifying exceptional circumstances when they do not exist, or clearly wrong in not identifying exceptional circumstances when they do exist, this court will not readily interfere."
[18]The other decisions show that age on its own will not provide an exceptional circumstance: see Lucas.[19]Mr Aldred on behalf of the Solicitor General points to the fact that the facts in Lucas were not dissimilar to the facts in the instant case. In that case the court refused to hold that there were exceptional circumstances for interfering with a mandatory minimum term. In the case of Blackall the fact that an offender has in his possession a firearm for the purpose of defending himself was held not to be a circumstance amounting to exceptional circumstances.[20]As we have said, the judge in the case before us described the decision as to whether there were facts justifying a finding of exceptional circumstances as a "borderline" one. With respect to this very experienced judge, we disagree. Whilst it is understandable that the court should wish to find exceptional circumstances in view of the offender's age, in our judgment neither of the two factors, namely the age of the offender nor his reason for possessing the firearm, either on their own or cumulatively can amount to exceptional circumstances. We should add that the judge did not appear to have had the benefit, as we have had, of the citation of the authority. If he had, in our judgment, he would probably have reached a different conclusion.[21]These are very serious offence. The prevalence of crimes involving firearms committed by young offenders in areas of our cities requires substantial sentences to be passed even in the case of young offenders. Taking into account the facts of these offences, the offender's previous convictions and the assessment of him by the author of the pre-sentence report, we would have expected a sentence at first instance of rather more than three years to have been passed and probably in the region of four years or more.[22]Taking into account the offender's guilty plea and the element of double jeopardy, we quash the sentence of 12 months' detention and training order passed by the judge and for it substitute a term of three years' detention pursuant to section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000. Accordingly, the reference is allowed to that extent. In arriving at that conclusion we also take into account the time that he spent on remand.