Attorney General's Reference No. 5 OF 2005

THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer sentences said to be unduly lenient. We grant leave.

The offender is 20, having been born in March 1985. On 10th May 2004 he pleaded guilty to dangerous driving and other driving offences and sentence was adjourned. On 20th October 2004, which was the date fixed for the trial of a second indictment, he pleaded guilty to all three counts in that indictment, namely possessing a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968, possessing a disguised firearm, contrary to section 5(1)A(a) of the Act and possession of ammunition without a certificate, contrary to section 1(1)(b) of the Act. Sentence was adjourned for the preparation of reports. On 13th December 2004 he was sentenced by His Honour Judge Mort, at Minshull Street Crown Court in Manchester in the following way: for dangerous driving, 6 months detention; for driving while disqualified; 4 months' detention concurrently and no separate penalty was imposed for having no insurance. On the firearms indictment, concurrent sentences were passed in the following manner: 4 years' detention in relation to possessing the firearm with intent to endanger life; 4 years' detention, exceptional circumstances being found, for possession of a disguised firearm, and 12 months' detention for possession of ammunition. The total sentence, it follows, was one of 4 years' detention.

In summary, the offender was seen at about 8 o'clock in the evening riding a bicycle on a footpath in a residential area. He was arrested when he abandoned his bicycle and attempted to dispose of a small metal item behind a fence. That proved to have the appearance of a key fob but was in fact a firearm adapted for the discharge of ammunition. It was loaded with two live bullets. He was wearing body armour and thick gloves.

On the day of trial he admitted by reason of the plea which he tendered possessing that firearm with intent to endanger life. It is right to say that the firearm had not previously been discharged.

In a little more detail, on 18th May 2004, a week after the offender had pleaded guilty to the driving offences, police officers on mobile patrol in the Stretford area of Manchester saw three young men riding bicycles on a footpath and one of them was the offender. The other two broke away and made good their escape. The offender abandoned his bicycle and ran, pursued by the police, who saw him drop the silver key fob firearm which we have described. It is a type of firearm which is, sadly, circulating with prevalence in that city.

The offender's clothing included, as we have said, thick leather type gloves and, beneath his jumper, camouflaged ballistic body armour. On examination by an expert, the firearm was found to be loaded with two live rounds of ammunition. In appearance it resembled a remote locking device for a motorcar but it was a .25 mm gun, measuring approximately 8 x 3 centimetres. Initially, it had been designed for discharging blanks. But it had been modified so as to be capable of firing live ammunition from inside each of the two smooth bore barrels. It had a barrel length less than 30 centimetres, and was therefore a prohibited weapon for the purposes of section 5(1) of the Firearms Act. It carried, in consequence, a minimum statutory penalty of 5 years. To that aspect of the matter we shall later return.

In interview, the offender made no comment in relation to any question asked of him. Not guilty pleas were entered at the plea and directions hearing on 30th July and the trial was fixed for 20th October. On that occasion, as we have said, the offender pleaded guilty to the three counts in the indictment. The learned judge was aware that there was a mandatory minimum sentence of 5 years custody in relation to the possession of the disguised firearm.

Initially, pleas were tendered on the basis that the offender was minding the firearm for a short time for someone else. But that basis was not persisted in and the pleas were entered, as we indicated earlier. The offender had minor previous convictions for driving matters and failing to surrender to bail. In relation to that latter matter he had received, from the Stockport Magistrates in December 2003, a 6 month conditional discharge. The firearms offences were, in consequence, committed in breach of that conditional discharge and also while he was on bail to be sentenced for the dangerous and other driving offences.

The pre-sentence report which was before the sentencing judge, as it is before this Court, noted the offender's absence of serious criminal record and assessed the offender as being at a low risk of re-offending. However, the offender had given the author of that report an account which was inconsistent with the plea which he came to tender of possessing the firearm with intent to endanger life. He claimed, to the author of that report, that he had been asked to mind the device by an acquaintance and was unaware of its true nature until after his arrest. That aspect of the matter was canvassed before the sentencing judge and counsel for the defendant then, as now, Miss Roberts, made it plain that the offender accepted that he did indeed have possession of the firearm with intent to endanger life. But he would not give any further information about the circumstances in which he came to be in possession of that firearm, save to say that he had not had it for long and it belonged to someone else.

Miss Cheema, on behalf of the Attorney-General, draws attention to what she, rightly, submits are five aggravating features. First, the firearm was disguised and adapted for no purpose other than causing injury. Secondly, it was loaded with two rounds of live ammunition, and was being carried with intent to endanger life. Thirdly, the offender was wearing the body armour and gloves to which we have referred. Fourthly, the carrying of this weapon in these circumstances took place in the evening, in a residential area. Fifthly, the offender was at the time on bail.

Miss Cheema draws attention to four mitigating features. First, the pleas of guilty; secondly, the fact that the firearm had not been used; thirdly, the relative youth of the offender; and fourthly, the lack of relevant previous convictions.

Miss Cheema draws attention to a number of authorities apart from R v Avis [1998] 1 Cr App R 420, in particular, Attorney-General's Reference No 2 of 2000 [2001] 1 Cr App R(S) 27, Attorney-General's Reference No 49 of 1998 [1999] 1 Cr App R(S) 396 and Attorney-General Reference Nos 58 to 66 of 2002 [2003] EWCA Crim 636. The last of those authorities was a case in which the Court dealt with a number of members of a notorious gang in Manchester. There is no evidence that this offender was a member of that or any other identifiable gang.

Miss Cheema submits that the sentence passed by the learned judge failed adequately to reflect either the statutory minimum in relation to count 2 or the aggravating features which we have already identified. She submits that the prevalence of the carrying and use of guns in metropolitan areas in general and the city of Manchester in particular, is such that deterrent sentences are called for. The submission is made that these sentences, in consequence, were clearly unduly lenient.

On behalf of the offender, Miss Roberts, in an admirable submission, said all that could be said on behalf of this offender. She accepts that it was a matter of some surprise, in the absence of any submission by her to that effect, that the learned judge should find exceptional circumstances on count 2. It appears that the learned judge's sole basis for doing so was the assessment in the pre-sentence report of the low risk of the offender re-offending. Clearly, as a matter of law, that is not and could not be an exceptional circumstance. Miss Roberts accepts here, as indeed she accepted in the court below, that this is not a case in which exceptional circumstances could properly be advanced. She repeats to this Court the deficiency in her instructions, in the sense that she was not able to obtain from the offender any proper explanation as to the circumstances in which he was in possession of this weapon, which is lethal at point blank range. She referred, by way of distinguishing features, to some of the authorities to which we have referred. She also relies upon the principle of double jeopardy, that is to say, that the offender is being, in these proceedings, sentenced a second time. She stresses the comparative youth of the offender, the favourable references which were before the sentencing judge, the indications that he is capable of leading a productive life and the absence from his record of anything of a similarly grave nature.

To all of these matters we have regard. This, as it seems to us, was a serious case in the three aspects reflected in the counts in the indictment. There was no reason whatever for the statutory minimum term of 5 years not to be imposed in relation to count 2. So far as count 1 is concerned, the gravity of the matter, in our judgment, lies in the particular circumstances that a loaded lethal firearm was being carried, with admitted intent to endanger life, in the street of a residential area, in the evening; and the offender was not alone. Furthermore, he was, with the intent which he admitted, equipped with the body armour which we have identified and he was wearing gloves. It cannot be said, as it seems to us, that he may merely have been wearing, for fashion reasons or otherwise, the uniform of some youths to be found in Manchester. His camouflaged ballistic armour was concealed beneath an outer garment; and the gun which he was carrying was doubly loaded.

Having regard to all of these matters, despite the offender's comparative youth, we would have expected, on a late plea of guilty, a sentence of at least 7 years to be passed in the court below, in relation to counts 1 and 2. Taking into account double jeopardy, the sentence which we pass, in place of the sentences of 4 years' detention passed by the learned sentencing judge, in relation to counts 1 and 2 concurrently is one of 6 years' detention.