"Harm is assessed by reference to the risk of harm or disorder occurring and/or actual alarm/distress caused. When considering the risk of harm, relevant considerations may include the location of the offence, the number and vulnerability of people exposed, especially children, and the accessibility and visibility of the weapon." (Emphasis in original)
"13. Nonetheless, with that warning in mind the judge turned to step 3 in the guideline which required him to consider whether there were exceptional circumstances. He had found that she was unaware of the contents of the bag; thus she was not aware that it contained two loaded guns. Notwithstanding the fact that she had suspicions due to her knowledge of the man who had left the bag with her, the Recorder was satisfied that there were exceptional circumstances meaning that the mandatory minimum term did not have to be imposed. He returned to the starting point under the guidelines to which he had already referred, namely six years. By reference to the various mitigating factors including the long delay in the proceedings, the judge determined that sentence after trial would be three years' imprisonment. An intimation of plea sufficient to amount to a clear indication had been given in the Magistrates' Court. Miss Jaydah Luke-Smith was entitled to a reduction of one-third from the sentence that otherwise would have been imposed. That resulted in a sentence of two years' imprisonment. 14. The judge indicated he had also considered paragraph 14 of the Sentencing Council Guideline. Paragraph 14 under a heading 'Where exceptional circumstances are found' reads as follows: 'The court may find it useful to refer to the range of sentences under culpability A of Table 2 (Offences not subject to the statutory minimum sentence) in step 2 above. The court should impose a sentence that is appropriate to the individual case.'"
"... having found that exceptional circumstances applied and, hence, by definition, that the imposition of the minimum term would result in an arbitrary and disproportionate sentence, we consider that the judge erred in his application of the sentencing guideline, paragraph 13 of step three of which obliged him to impose either a shorter custodial sentence, or an alternative sentence. Once he had concluded that it was not appropriate to refer to Table 2, he could only sentence by reference to Table 1, the starting points and category ranges within which relate to offences to which the statutory minimum sentence applies and do not encompass non-custodial sentencing options. Accordingly, when moving from the starting point applicable to the applicant's category 3B offence to take account of aggravating and mitigating factors and the relevant exceptional circumstances, he had been obliged, first, suitably to reflect the fact that the starting point had been fixed by reference to the minimum term, and so was higher than would be appropriate in light of his finding of exceptional circumstances, such that the aggravating factors which he had identified could properly result in only a modest upward adjustment, if any. Secondly, he had been obliged to make a very substantial downward adjustment to reflect the exceptional circumstances and mitigating factors which he had identified, consistent with the requirement imposed by paragraph 13 of step three and Parliament's rationale for imposing a minimum term, as explained in Rehman."
"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. This makes the provision one which could be capable of being arbitrary. This possibility is increased because of the nature of section 5 of the Firearms Act. This is different from most sections creating criminal offences. In the majority of criminal offences there is a requirement that the offender has an intention to commit the offence. However, firearms offences under section 5 are absolute offences. The consequence is that an offender may commit the offence without even realising that he has done so. That is a matter of great significance when considering the possible effect of section 51A creating a minimum sentence."
"In the light of his decision not to apply the range in Table 2, the judge went back to the starting point for a case where no exceptional circumstances exist. He then reduced the sentence very considerably from that point given that the circumstances were exceptional. We acknowledge that, in the absence of exceptional circumstances, the starting points in the guideline are based a minimum term of five years' custody. That does not render them irrelevant to a sentencing exercise of the kind in which the Recorder was engaged. Possession of a lethal firearm is a grave offence irrespective of the existence of a minimum term."