Lashari, R v [2010] EWCA Crim 1504

[2010] EWCA Crim 1504

Case No 200904463 A8

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT WOOD GREEN

HIS HONOUR JUDGE ANSELL

T20087595

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 01/07/2010

Before

THE RIGHT HONOURABLE LORD JUSTICE AIKENS

THE HONOURABLE MRS JUSTICE SLADE DBE

HIS HONOUR JUDGE WADSWORTH QC

Between

RRespondent

AYUB LASHARIAppellant

Orlando Pownall QC (instructed by JD Spicer & Co.) for Appellant

Barry Gregory (instructed by Wood Green Trials Unit) for Respondent

Hearing Hearing dates: 14 th May 2010

Judgment

[1]On 26 June 2009 at the Crown Court at Wood Green the appellant pleaded guilty to possession of a prohibited firearmcontrary to Section 5(1)(aba) of the Firearms Act 1968 and on 16 July 2009 he was sentenced by His Honour Judge Ansell to five years imprisonment. This is the minimum term for that offence provided by Section 51A of that Act unless exceptional circumstances are established.

[2]The appellant appeals against sentence. Leave to appeal was granted on 16th February 2010 by a different constitution of the full court after refusal by the single judge.

[3]At the conclusion of the hearing before us we dismissed the appeal and reserved our reasons which we now give.

FACTS

[4]The relevant facts are set out in the judgment of the Court of Appeal when granting leave to appeal on 16th February 2010. We set these out below.

[5]The essential facts are that on 5th August 2008, a mechanic who had conducted an MOT test of the appellant’s car informed the police that there was a firearm of some description in the boot of the car. The following day police officers attended at the appellant’s home address. The car was searched and a SAPL 12 bore single shot pistol and cartridges were found. They were concealed in the bag of the storage compartment of the boot of the car. The pistol was in working order and the cartridges were capable of causing fatal injuries.

[6]The appellant was arrested and interviewed. He said the car belonged to his brother but he had the only set of keys for it and nobody else used it. His explanation for having the handgun was that a few weeks earlier he had visited a supermarket. He parked in the bay on the basement floor. When he returned from shopping he found a bag in the corner by the wall. He said he found another bag underneath which he opened and found what looked like a gun. He said he put the bag in the boot of the car because he panicked when others wanted to use the parking space. He said his mind was elsewhere in the following days and weeks, due to other matters, and he forgot about the gun. He was never aware that the item was a lethal firearm. He had decided he should arrange for it to be handed to the police as the best way of disposing of it, but that he himself was fearful of doing so. He was a Muslim and unsure how the police would react to he himself bringing the item to the police station.

[7]The interview with the police on 6th August 2008 formed the basis of the appellant’s plea.

SENTENCE

[8]Before sentencing, the judge heard evidence from the appellant. The judge found that the appellant came from a respectable family and had an impeccable background. But he also found that although the weapon might be manufactured as a non lethal weapon, it was a very dangerous one because tests had shown that it had the potential to cause serious injury.

The judge was not persuaded by the account given by the appellant:

“I'm afraid I do not find it [the appellant’s account] to be in any way a convincing version of events.”

Later in his sentencing remarks

the judge said:

“...I do not find that a convincing story at all I'm afraid and you have in no way satisfied me that on that particular feature you are telling the truth...”

[10]The judge thought that it was more likely that the appellant was keeping the weapon for someone else although he did not make a specific finding on that. He continued:

“As I have indicated already I do not accept those circumstances.”

[11]The judge then addressed the range of mitigating factors advanced on behalf of the appellant and concluded that there were no exceptional circumstances and therefore the minimum term had to be imposed.

ANTECEDENTS

[12]The appellant is 48 years of age and was of previous good character. He has six children and had worked as a driving instructor. Four character references werebefore the court. The appellant comes from a distinguished Iranian family and has helped in a community charity. Prison reports of the courses which the appellant has been undertaking were also before us.

GROUNDS OF APPEAL

[13]Section 51A of the Firearms Act 1968 was inserted by section 287 of the Criminal Justice Act 2003. Section 51A(2) provides that if a person is convicted of an offence under section 5(1(aba) (amongst other offences) 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”. Section 51A(4) states that the appropriate custodial sentence for an offender over 18 when convicted is a sentence of imprisonment. Section 51A(5)(a) stipulates that the “required minimum term” in such a case is one of 5 years. Therefore the judge was obliged to sentence the appellant to a term of imprisonment of at least 5 years unless the judge found “exceptional circumstances” within section 51A(2).

[14]Before us Mr Pownall Q.C. on behalf of the appellant eloquently and succinctly submitted that the learned judge misdirected himself in law. He contended that that the judge applied the wrong burden and standard of proof when deciding the factual basis for determining whether there were “exceptional circumstances” justifying passing a lesser sentence than the mandatory five year term. Mr Pownall submitted that in deciding whether the relevant facts amounted to ‘exceptional circumstances’ within the meaning of Section 51A(2), a judge must either accept the account given by the defendant as to the facts or circumstances of the offence or determine whether it has been disproved by the prosecution. On hearing evidence of the facts or circumstances of the offence, the burden of proof is on the prosecution to disprove the defendant’s account to the criminal standard.

(S) 25

[15]Circumstances in which there is no obligation on the court to hear evidence in order to resolve a factual dispute between the prosecution and the defence and in respect of which the defence bears the burden of proof to a civil standard were listed by Mr Pownall in his written Supplementary Submissions which were before us. These include:

“Where the matters put forward by the defendant do not amount to a contradiction of the prosecution case, but rather to extraneous mitigation explaining the background of the offence or other circumstances which may lessen the sentence.”

[16]Mr Pownall contended that the account of how the appellant came to be in possession of and retained the gun and ammunition was not extraneous material and went to ‘the facts or circumstances of the offence itself’. He submitted that it appears from passages in the sentencing remarks that the learned judge applied the civil standard of proof to determine whether the appellant’s account was to be accepted. The judge having applied the wrong standard of proof, Mr Pownall submitted that there remains uncertainty as to the factual basis for sentence and that when taken together with the other mitigating features of the case ‘exceptional circumstances’ are made out.

[17]Mr Pownall advanced a separate ground of appeal that the energy produced by the firearm was less than that of an air pistol which may be lawfully possessed which constituted a compelling mitigating circumstance.

PROSECUTION SUBMISSIONS

[18]Mr Gregory for the prosecution referred to the case of R v Rehman and Wood

[2006] 1 Cr App R (S) 77

[2005] EWCA Crim 2056

in which Lord Woolf CJ set out a number of principles to be applied in the correct construction of ‘exceptional circumstances’ within the meaning of Section 51A(2) of the Firearms Act 1968. It was necessary to look at the case as a whole. When reading Section 51A in the light of the Human Rights Act 1998 section 3, the circumstances would be exceptional if it would mean that to impose the minimum sentence would result in an arbitrary and disproportionate sentence. In R v Jordan

[2004] EWCA Crim 3291

it was said that cases of exceptional circumstances within the meaning of Section 51A(2) were rare.

[19]Mr Gregory contended that the sentencing judge was entitled not to accept the Appellant’s evidence as to how he came to be in possession of the weapon and to conclude that there were no exceptional circumstances in his case.

DISCUSSION

[20]The appellant was guilty of an offence under section 5(1)(aba) of the Firearms Act 1968. As noted above, section 51A(2) provides that the court shall impose a sentence of imprisonment of at least five years:

“unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify it in not doing so.”

[21]The issue in this appeal is whether the learned judge adopted the wrong burden and standard of proof in deciding whether the appellant’s account of how he came to be in possession of the gun was to be rejected. Those facts were relevant to the decision whether the appellant had established exceptional circumstances within the meaning of Section 51A(2). Mr Pownall rightly recognised that the decision of the learned judge that there were no exceptional circumstances justifying imposition of less than the minimum term of imprisonment could not sensibly be characterised as irrational. He acknowledged that the Court of Appeal would not readily interfere with the conclusion of the sentencing judge as to whether such exceptional circumstances were present. In R v Rehman and Wood Lord Woolf giving the judgment of the court at paragraph 14 observed of Section 51A(2):

“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.”

[22]The credibility of the account given by the appellant as to how he came to be in possession of and retained the gun formed an important basis for the assessment by the judge of whether “exceptional circumstances” within the meaning of Section 51A(2) had been established. By reason of the terms in which he expressed himself which we have set out above it seems to us that Mr Pownall is correct in his submission that the learned judge assumed that there was a burden of proof upon the defence (to the civil standard) to demonstrate that the appellant’s account of how he came to have the gun was to be believed.

[23]The Court of Appeal in R v Guppy andMarsh

[1995] 16 Cr App R(S) 25

held that:

“…in relation to extraneous matters of mitigation raised by a defendant or appellant, a civil burden of proof rests on the defendant or appellant…”

[24]The exchange between the judge and Mr Gregory during the prosecution opening of the facts makes it clear that the prosecution did not accept the explanation advanced by the appellant. (Transcript p8H, 9A). In our judgment those facts could not properly be categorised as extraneous mitigation. They were directly related to the circumstances of the offence itself and were facts that were directly relevant to the sentence for the offence committed by the appellant.

[25]In determining the correct approach to disputed issues of fact relevant to sentence, the Court of Appeal in R v Ahmed (Nabil)

[1985] 80 Cr App R 295

referred to ‘the broad principle, which is so clearly recognised in Newton (R v Newton

[1983] 77 Cr. App. R 13

) that the accused should be given the benefit of the doubt’. The Court in Ahmed held:

“The accused is given the benefit of the doubt (if there is one) by the necessity for the Crown Court to direct itself (or any jury) that the accused’s account must be accepted unless that court is sure that it is untrue.”

[26]The learned sentencing judge should have applied this approach to the question of whether or not the appellant’s account of how he came to possess the gun was to be accepted. The judge should therefore have applied the criminal standard of proof and asked whether the Crown had proved that the version of events put forward by the appellant did not occur. If the Crown had not satisfied that burden of proof to the criminal standard the judge must accept the appellant’s version of events. On a fair reading of his sentencing remarks, the learned judge did not follow this approach in determining this factual issue. Accordingly in our judgment the learned judge misdirected himself in law.

[27]As for the supplementary submission, in our view any facts concerning the level of energy produced by the firearm would not have affected the assessment by the learned judge as to whether there were “exceptional circumstances” justifying the imposition of a lesser sentence in this case.

[28]However, although we have concluded that the judge erred in his approach to the question of whether he had to accept or could reject the account given by the appellant of the circumstances in which he came into and retained possession of the gun, we have concluded that this does not affect the ultimate conclusion that the judge reached, that there were no “exceptional circumstances” in this case. Even if the version of events advanced by the appellant were true or might have been true, in our view it does not follow that, looking at the facts overall, there were “exceptional circumstances” in this case. The fact remains that the appellant had in his possession, in the boot of his car, a gun to which section 5(1)(aba) of the Firearms Act 1968 applied. The appellant had deliberately put it there and kept it there. Accordingly this appeal was dismissed.