Attorney-Generals Reference No 48 and 49 of 2010 [2010] EWCA Crim 2521

[2010] EWCA Crim 2521Case No 201003770/3771/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 20 October 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
(Vice President of the Court of Appeal Criminal Division)
MR JUSTICE OWEN
MRS JUSTICE THIRLWALL
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 48 AND 49 OF 2010
Computer Aided Transcript of the Stenograph Notes of
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Miss S Whitehouse appeared on behalf of the Attorney General
Miss V Reeve appeared on behalf of the Offender Cox
Mr D Lewis appeared on behalf of the Offender Monk
J U D G M E N T
[1]THE VICE PRESIDENT: HM Attorney General seeks the leave to refer under section 36 of the Criminal Justice Act 1988 sentences passed on two defendants for firearms offences. We give leave.[2]The offences to which these two men pleaded guilty were these. First, conspiracy to possess and distribute prohibited firearms and ammunition. The underlying substantive offence is the offence of possession of a prohibited weapon contrary to section 5(1) of the Firearms Act 1968 and for that the statutory maximum sentence is ten years. The second offence was conspiracy to convert into firearms. The underlying substantive offence is the offence contrary to section 4(3) of the Firearms Act 1968 and for that the statutory maximum is seven years. As is well-known, the statutory maximum for conspiracy follows the statutory maximum for the relevant substantive offence.[3]These were two young men in their 20s of effectively previous good character. The evidence is that on a day in December 2009 they went together to the sports shop and bought four starting pistols and blank firing ammunition to go with them. They then took them to a shed in the garden of Monk's mother and set about converting them into effective handguns, in effect by drilling out the blockage in the barrel and respraying them black in place of the sporting orange that they previously were. They also set about converting the blank ammunition by inserting into the top of the cartridge cases bullets obtained from somewhere.[4]There appeared at first to be a dispute between the Crown, on the one hand, and the defendants on the other as to whether another gun which was recovered at a different place which may have been linked to these defendants was relevant or not. In the end, that issue is insignificant. Both defendants admitted that, as well as setting about the conversion of the four guns which they had bought, they had on a previous occasion, in the one case converted the gun, or, in the other, allowed the use of the shed for the purpose.[5]It is right to say that the weapons when recovered as a result of the prompt intervention of the police were not yet workable, lethal firearms. That was only because the process was interrupted by the intervention of the police. The object of the exercise was to create a weapon which would have been a working handgun and a working handgun is these days a prohibited weapon within section 5(1) of the 1968 Act.[6]A basis of plea was offered by both defendants. The Crown did not challenge it and it was the basis upon which they had to be sentenced. The explanation was that Cox had been in debt to a cannabis dealer for the not very large sum of a little under £200. He had been offered £100 on the two occasions in November and December of 2009 effectively to pay off his debt by supplying converted weapons. Monk, for his part, made available the shed in his mother's garden for the purpose and accompanied Cox when they together bought the starting pistols that they were setting about to convert. In due course the judge was persuaded to differentiate between the two. For our part, we think there is little difference between them.[7]We should say that the defendants were themselves, as the judge found, not members of the criminal fraternity. Cox had some minor convictions for the possession of cannabis and the like but had never been in custody. Monk had no previous convictions at all, though some trivial warnings when he was very young.[8]Cox had a settled home with his partner and their two children. They had been together for seven years. He had a settled, decent job as teaching assistant which he has had for five years and in which he was doing well. He hoped to progress to qualified teaching. Monk lived either with his mother or his girlfriend. He had worked in the past in the building trade. He was currently out of work but he was not work shy. He had aspirations to apply for a permit to work in security. Both of them, it is plain, have ruined their careers by what they have done. It also can be said on their behalf that both of them made frank admissions as to what was going on in the shed. These were inevitable given what had been found, but an admission that there had been a previous attempt was an indication of frankness on their part. The operation in the shed was amateurish in the extreme. There was no proper plant or production line or equipment. It was simply a shed which contained a drill and some paint. All that said, the object of the exercise was to produce lethal weapons to give to criminals and the courts are only too aware of how easy it seems to have become for those who are committing serious offences of violence to lay their hands on guns. This is particularly true of those who are engaged in the criminal drug trade which seems likely to be where these guns were going to start. The potential damage which these two risked was simply incalculable. The observations of the Lord Chief Justice in Attorney General's Reference No 43 of 2009 (Bennett and R v Wilkinson) [2010] 1 Cr App R(S) 100, are important. He said at paragraph 3:
"The purposes of sentencing are identified in section 142 of the 2003 Act. None of these purposes is pre-eminent. All apply to every case, but as a matter of sentencing reality, whenever a gun is made available for use as well as when a gun is used public protection is the paramount consideration. Deterrent and punitive sentences are required and should be imposed."
[9]We recognise, of course, that the specific cases under consideration before the court on that occasion were in a wholly different league to the offences in this case. They were large scale, professional gun suppliers.[10]The legislative framework within which the judge had to operate presented him with some challenge. The maximum sentence effectively was ten years. By section 51A of the Firearms Act of 1968 the possession of a prohibited weapon now carries a minimum sentence of five years from which no further allowance for a plea of guilty can be made. It follows that if someone is convicted of possessing a prohibited weapon, effectively the sentencing range available to the judge is limited to seven and a half years to ten. Part of the question which we have had to address in this case is to what extent section 51A is relevant to the present sentencing exercise.[11]For the Attorney General Miss Whitehouse submits that although section 51A does not apply directly to the offence of conspiracy and although the weapons in this case had not yet achieved the status of prohibited weapons so that it could not apply, nevertheless, it is such an important indication of Parliamentary intent that a sentencing judge should regard a five year sentence, even after a plea of guilty, as the minimum in a case of this kind.[12]We think that goes too far. If section 51A had been intended to apply to offences of attempt, which effectively this was, or conspiracy then that could easily have been done and it has not been. On the other hand, we have no doubt whatever, just as the court in Wilkinson had no doubt whatever, that the Parliamentary indication of public concern, which is reflected in section 51A, has a considerable impact on sentences which need to be imposed for cases of this kind.[13]We are also well aware that there is in this case a mismatch between the personal circumstances of the defendants and the enormous gravity, or potential gravity, of the offence they have committed. It seems likely that they simply had not thought it through. That is a relevant consideration in sentencing. But it is not all that unusual for such a mismatch to exist. Sometimes people of previous good character who do not think about what they were doing do commit offences which carry enormous public risk and that is what these men have done.[14]We find it very difficult to envisage a case of a deliberate attempt to create a working handgun, which is nowadays within the definition of a prohibited weapon, which will not require a sentence of at least five years after trial. That is a principle we arrive at having regard to the impact of the public risk as reflected by the minimum sentencing required by section 51A. But, as we have said, we do not go so far as Miss Whitehouse would have us and say that there must in all such cases be what is, in effect, a direct application of section 51A to offences to which it does not apply.[15]The sentences passed by the judge were 30 months on Cox and 25 months on Monk. Those were imposed after pleas of guilty at the first available opportunity and in circumstances, as we have said, which indicated a degree of frankness on the part of the defendants. They represent just under four years after trial in the case of Cox and something like three years, or thereabouts, in the case of Monk.[16]Those, we think, were lenient sentences. We think that the judge did not, as he should have done, appreciate quite the balance that needs to be struck between the public risk and the personal circumstances of the defendants.[17]The question which is more difficult is whether the sentence is so unduly lenient that at this stage, with the defendants well on into serving them, it is necessary for this court to increase them. In the particular circumstances of this case we are persuaded that it is not necessary. It is enough for us to say what we have about the level of sentencing. For those reasons while we give leave we do not on this occasion increase the sentences.

Cited in 1 later judgment