Attorney General Reference No 23 of 2009 [2009] EWCA Crim 1683

[2009] EWCA Crim 1683Case No 2009/1257/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 7 July 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE SIMON
MR JUSTICE WILKIE
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 23 OF 2009
Computer Aided Transcript of the Stenograph Notes of
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Miss S Whitehouse appeared on behalf of the Attorney General
Mr C Dunn appeared on behalf of the Offender
J U D G M E N T

LORD JUSTICE THOMAS:

[1]On 13th February 2009, Desmond Peter Merrion, a 40-year-old bespoke tailor, was sentenced to a total of three years' imprisonment by His Honour Judge Reddihough at the Crown Court at Great Grimsby for offences under the Firearms Act, each carrying statutory minimum sentences of five years. The Attorney General seeks leave to refer the sentence to this court under section 36 of the Criminal Justice Act 1988 (as amended) on grounds that it was unduly lenient, as there was no proper basis for the judge to find there were exceptional circumstances. We grant leave.[2]The offender had served in the army cadet force for a number of years. As we have said, by occupation he is a bespoke tailor. He had been married for some 23 years and has five children. Three are grown up, one is aged 14 and one is two. We shall return to those family circumstances in a moment. He participated in many activities of benefit to the community. His tailoring business prospered and took him all over the world.[3]He had an interest in guns. He had a firearms certificate for some 20 years. He was a member of a gun club. He lawfully had in his possession firearms and ammunition. Apart from certain matters when he was 13 years of age, he was of good character, and those matters are of course immaterial.[4]However, his attempt to import a pistol illegally from the United States in October 2007 in circumstances which it is necessary to set out changed his entire position and the lawful life that he had hitherto made.[5]The circumstances were these. On 19th October 2007 a firm of international carriers was asked to send a parcel to the offender's business address in Hull. The postage was insufficient. As there were no details of the sender on the parcel, it was opened by the carrier. Inside they found a barrel and handle of a pistol. They were parts of a Ruger mark 3 .22 calibre pistol. It is important to note that attempts had been made to disguise the barrel using candles in the package. The United States authorities traced the sender to a Mr George Rimby. He had been a customer of the offender's tailoring business. The United Kingdom authorities were informed by the Government of the United States. The offender was arrested on 21st May 2008. His home was searched. Several firearms and quantities of ammunition were found. A number of those were in his lawful possession, but three were not. The first was a Brocock Orion-6 self-contained pistol. Next there was a Remington self-loading shotgun. Third there was a BSA 410 shotgun which had been sawn down. There was also a firing pin mechanism and main spring for the Ruger pistol discovered in the parcel. Those were the missing parts. A quantity of ammunition was also found.[6]The offender was interviewed on the day of his arrest. He gave an account that was regrettably untruthful. He said Mr Rimby was a customer of his tailoring business and they had a mutual interest in firearms. After the offender's last visit to the United States he had left some cloth bunches with his customer and expected them to be returned in due course. He said a parcel had arrived containing a plastic Ruger box with scrap and magazines in it. He had no concerns the contents might be illegal. He stored the package and contacted the carriers to ask when the parcel containing his cloth might arrive. At that point he was informed that gun parts had been found in the second parcel which had been opened in the United States.[7]As regards the other illegal weapons that he held, he accepted that the Brocock pistol was not covered by his licence, but said he was not aware the law had changed. He said he had received the Remington shotgun from his father who wished him to dispose of it. He had placed it in his gun safe and had forgotten he had it. As regards the sawn-off shotgun, he said he had found it at the back of his shed when he had moved to his current address. He admitted he should have surrendered it.[8]On 1st July he asked to be interviewed again. On that occasion he did admit to the truth of what had happened in relation to the Ruger pistol. He said he had agreed with Mr Rimby to purchase the pistol in exchange for a hand-made waistcoat. It had been necessary to send the parcel in two parts so it would not be detected by the United States or United Kingdom authorities. He said he wanted the pistol for target practice and shooting at his club. He was interviewed again on 15th August and maintained the accounts given in relation to the other three firearms.[9]He pleaded guilty at the case management hearing to the specific offences, which it is not necessary to set out. It is evident from the background to which we have referred that there were strong mitigating factors relating to the offender and his plea. It was common ground also that he did not intend the guns for what are described as criminal purposes and had no connections with criminals, other than Mr Rimby who had plainly been engaged in this criminal enterprise. The judge sentenced him without a pre-sentence report.[10]The aggravating features were what is without doubt the deliberate and carefully planned importation of a pistol and the possession of two guns which he knew were held unlawfully. The particularly serious matter was the sawn-off shotgun.[11]The judge took the view that he was “just persuaded” that there were exceptional circumstances relating to the offence and the offender. He explained that these were his positive good character, the services to his country through the charitable and army activities, and his industrious life. He also considered as an exceptional circumstance the fact there was no question of seeking to use the weapons in a criminal way.[12]It is clear from the decision of this court in Rehman and Wood [2005] EWCA Crim. 2056, [2006] 1 Cr.App.R (S) 77, that the court must have at the forefront of its mind that Parliament has decided that deterrent sentences be passed to ensure that possession of guns is strictly controlled and guns are not brought into this country unlawfully. It is well known what a scourge guns are to any society and the courts must, in accordance with the will of Parliament, make sure that the policy of Parliament is carried out in the sentencing of offenders, even though in a particular case, apart from the minimum term, an offender might not merit a sentence of such severity. It is in circumstances such as those before the judge that the courts must be very, very careful to have regard to this policy. It is, we think, important to refer to one short passage in the judgment of Lord Woolf in Rehman, where he said:
"So far as we can determine the rationale of Parliament, the policy was to treat the offence as requiring a minimum term unless there were exceptional circumstances, not necessarily because the offender would be a danger in the future, but to send out the deterrent message to which we have already referred. The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would be a danger to the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section refers."
In referring to the exceptional circumstances, it is always important to bear in mind what Lord Bingham of Cornhill, CJ, said in R v Kelly [2000] QB, [1999] 2 Cr.App.R (S) 176:
"To relieve the court of its duty to impose a life sentence under section 2(2), however, circumstances must not only be exceptional but such as, in the opinion of the court, justify it in not imposing a life sentence, and in forming that opinion the court must have regard to the purpose of Parliament in enacting the section as derived from the Act itself and the White Paper 'Protecting the Public' which preceded it."
We have no doubt in this case that the learned judge was in error in treating this case as one amounting to exceptional circumstances. There were none. This was a case where the offender had deliberately attempted to bring a weapon into this country. It is, in our judgment, not a case where there is any doubt but that the conduct was deliberate, that his previous good character (although relevant in not increasing the sentence beyond the minimum) cannot amount to exceptional circumstances, nor can the fact that he did not intend to use the pistol or any of the guns held unlawfully for criminal purposes. All the circumstances identified by the judge were irrelevant. A minimum sentence of five years should have been imposed.[13]However, the position before us is changed in one respect. We have been provided this afternoon with a letter from a consultant at the Leeds teaching hospitals. It identifies (we need say no more than this) that one of the children of the offender is suffering from a very aggressive illness and this has put immense pressure upon the family. The aggressive illness is one that could be fatal, but it is hoped that, with treatment, it may not be in this case, although it will be very debilitating, during the course of the treatment, for the child.[14]It seems to us that those properly could, if they had been before the judge, have been characterised as exceptional circumstances because they go to particular and unusual circumstances that affected this offender, given the severe nature of the illness and the strain which it imposed upon the family.[15]In those circumstances, we have considered the offender’s wish to put these matters before us as an application to take these facts into account on a cross-notice for permission to appeal in relation to the five year sentence that would otherwise have been appropriate. In those circumstances we think we can properly reduce the sentence to one of three years, but beyond that we cannot go. Those who in any way contravene the Firearms Act must for the good of society, whatever the consequences are to their family, expect to receive the minimum sentence from Parliament. Judges must not feel sorrow or sympathy for any offender. The protection of the public demands nothing less than the imposition of minimum sentences. It is only in exceptional circumstances of the kind that have occurred in this case, rare as it is, that the court can exercise a degree of mercy.[16]For those reasons, therefore, we leave the sentence of three years as it is, granting the Attorney leave notionally to increase it, but we reduce it back to three years. Therefore the order of the court is that the sentence remains the same.