Herbert & Anor, R v

On 1^st July 2004, before His Hon Judge Paget in the Central Criminal Court, the offenders Stephen Ronald Herbert and Gary Colin Beard, pleaded guilty to three counts on an indictment in which they were jointly charged: 1) with conspiracy to manufacture prohibited weapons; 2) conspiracy to sell or transfer prohibited weapons; and 3) conspiracy to possess firearms with intent to enable others to cause fear or violence.

On 10^th September 2004 the Judge sentenced each of them to concurrent terms of six years imprisonment on each count, having expressly taken nine years as a starting point and having given them “full credit” for their pleas of guilty.

This is an application by the Attorney-General under section 36 of the Criminal Justice Act 1988 for leave to refer those sentences to this Court as unduly lenient.

The Court grants leave and treats the application as the hearing of the reference.

The offenders, Herbert and Beard, are respectively 47 and 45 years old. Over a ten months’ period from April 2002 to February 2003 they obtained from two suppliers in London a vast quantity of blank-firing hand-guns and corresponding blank ammunition. One of these suppliers was Dennis Target, who supplied the items from his shop premises called Target Arms in Lordship Lane. The second was Guner Salih, who stands accused of the same conspiracies and has yet to be tried. He had a shop called Moderne Buckles in Bethnal Green Road at which he sold a variety of blank firing hand-guns, camouflage clothing and the like.

Over the ten months period of the conspiracies Herbert and Beard converted the weapons and ammunition from those sources into effective lethal barrelled prohibited weapons capable of firing the ammunition. They then sold the firearms and ammunition direct to interested criminal parties or through Salih’s shop. Although the prosecution could not precisely quantify the enormous scale of their manufacture and trade in the weapons, its evidence showed, on a conservative basis, a figure of more than 150. It was plain from that scale of manufacture and trade, and from individual instances of provable or attempted sales of the weapons, that they were destined for the criminal fraternity – for the purpose at the very least of putting potential victims of crime in fear.

The conspiracies began in April 2002 with Herbert approaching Target, saying that he needed large quantities of blank-firing guns and corresponding ammunition for him to sell as a market trader. Target sold him a quantity at discounted prices. Two months later, in June 2002, Beard introduced himself to Target as a friend of Herbert, and took over the purchasing there, again at discounted prices.

Overall, in a period of five months from April to August 2002, Herbert and Beard, between them, bought from Target 160 8 mm blank-firing handguns, 1,700 rounds of 8 mm calibre blanks and a number of boxes of air pellets. The pellets were for use in converting the blanks into bulleted ammunition suitable for the hand-guns once converted into weapons. There was evidence of specific instances in May and July of Herbert dealing in the converted weapons and ammunition.

Thereafter, Herbert and Beard turned to Salih as their main supplier. In October 2002 the police began a surveillance operation on Herbert, which they later extended to Beard. This produced evidence: of a number of visits by Herbert to Salih’s shop to purchase the blank-firing hand-guns and ammunition; of their visits to premises of Beard at Mountacre Close in South East London, which they used as the factory for the conversion of the purchases into lethal barrelled prohibited weapons; and of their visits to a small lock-up shed near Rivets House in Coopers Road SE2, which they used as a store for the converted weapons and ammunition.

The police surveillance continued into January 2003 when Beard, as well as Herbert was observed making purchases from Salih - and also Target - and taking them to the factory at Mountacre Close. There were also meetings at the store in the shed at Rivets Close.

On 24^th February 2003 the police moved in and arrested the two men, bringing the conspiracies to a close. Searches of the factory at Mountacre Close revealed the tools of their unlawful trade, a number of converted weapons and some yet to be converted. Similar searches of the store shed in Rivets Close showed a number of converted and partly converted weapons, some awaiting conversion, and also quantities of ammunition of various sorts.

In police interviews, both Herbert and Beard declined to answer any questions.

On 25^th February 2003 the police charged them with these offences. As will appear, it was not until 15 months later, on 1^st July 2004, the first day of trial and just before the jury were sworn, that they pleaded guilty to the offences. Those pleas followed the failure of pre-trial submissions by their respective counsel, Mr John Hurlock and Miss Susan Rodham, to exclude certain evidence and the following events.

Shortly after the Judge’s dismissal of the pre-trial submissions, Mr Hurlock, received a message from the Judge, via the court clerk, that, if the offenders were prepared to plead guilty to the three counts, the Judge would allow them a full discount for such pleas. That prompted Mr Hurlock to take instructions from Herbert, from which he prepared a written basis of plea to the counts. It contained an assertion that “he was not responsible for the manufacture of all the guns” the subject of count 1 – namely over 300 referred to in the prosecution papers as having been manufactured within the period of the conspiracies. Beard’s counsel, Miss Susan Rodham, also discussed with him a possible basis of plea, in which he would accept guilt on all three counts, but as to count 1, only on the bases that: 1) although he had been a party to the conspiracy charged in count 1 to manufacture the weapons, he had played a minimal role in their direct manufacture; 2) the conduct charged in the other two counts was incidental to that charged in count 1; and 3) he had a lesser role than Herbert, in particular he had not been involved with Salih.

Mr Hurlock and Miss Rodham then, in the presence of Mr Mark Gadsden, prosecuting counsel, sought an indication from the Judge in chambers as to his likely approach to sentencing. Mr Hurlock asked him whether, if Herbert were to plead guilty to counts 1 to 3 at that stage, he would receive “full credit” for his plea. The Judge replied that he could see no basis for not giving him and Beard “full credit” for their pleas and that his provisional view was that he would sentence concurrently on the three counts since they were “part and parcel of one enterprise”.

After a short adjournment in which to allow counsel to take instruction from their lay clients, on return to court, Mr Hurlock put before the Judge the written statement of the basis of Herbert’s proposed plea of guilty, Miss Rodham indicated that she too had prepared such a statement on behalf of Beard and outlined it to him in summary terms. And they asked for the indictment to be put again to their respective lay clients. Before that was done, Mr Gadsden indicated that while he could not, on behalf of the prosecution, agree the proposed bases of plea, there were some assertions of fact in them that the prosecution could not “gainsay”. In particular, he indicated that, regardless of the points being advanced by offenders in those statements in diminution of their respective roles, the prosecution case was that the numbers of guns in which they had been involved as conspirators, though not necessarily in actual physical conversion, was in the hundreds. Mr Gadsden also indicated that, for the purpose of sentencing, the prosecution did not agree with the proposition indicated provisionally by the Judge, that the three counts should be treated for sentencing purposes as all part of one offence, a matter that the Judge impliedly acknowledged he would have to leave open until considering sentence.

The offenders were then re-arraigned, and each pleaded guilty to the three counts. The matter of sentence, including how the Judge should approach the offenders’ respective statements of basis of plea, was then adjourned to 10^th September 2004.

On the adjourned hearing, Mr Gadsden, in his outline of the prosecution case, whilst again indicating that he could not “gainsay” some of the matters relied upon by the offenders in their statements of basis of plea, described the case as the largest case in the country of conversion of blank firing weapons into fully functional prohibited weapons. He said that the number of weapons with which the offenders had been involved were in the hundreds. The Judge, in the course of Mr Gadsden’s opening, in seeking confirmation of the maximum sentence available and that imposed in another case, accepted that the quantity here was “enormous”.

In the course of their mitigation counsel on behalf of both offenders placed considerable emphasis upon the respective basis of plea statements and upon the prosecution’s inability to “gainsay” them. They also relied upon the imprecision of the prosecution case and evidence as to the number of guns with each of them had directly dealt. And they urged the Judge to treat the conduct charged in each of the three counts as all part of one matter for the purpose of sentence.

In the case of Herbert, Mr Hurlock acknowledged on his behalf that he had been involved in the manufacture and storage of, and in dealing with, some guns, but not all those identified in the prosecution evidence. In the case of Beard, Miss Rodham suggested that he was only involved with the guns supplied to Target and that he had a lesser role in time, responsibility and function than Herbert.

The Judge, in his sentencing remarks, said that, as he had already indicated, he would give them full credit for their pleas of guilty, albeit entered late, and, in doing so would take into account their respective bases of plea. However, he went on to say that that was their only mitigation. He described their criminality, although differently identified in the three counts, as part and parcel of a single course of conduct in which they were running a gun factory and selling the converted weapons through the two shopkeepers, conduct that he could appropriately deal with by concurrent sentences. In sentencing each of them to concurrent terms of six years imprisonment, he said that he could see no reason to distinguish between them as to culpability and that, but for their pleas of guilty, the sentences would have been nine years in each case.

After sentence, the offender Herbert, turned to Beard and said very audibly “we got away with that”. Extensive national media coverage was given to that remark.

The maximum sentence for each of the statutory conspiracies is 10 years imprisonment, by virtue of section 1A of the Firearms Act 1968, as amended by the Criminal Justice and Public Order Act, Sched 8, Pt III.

Mr Jafferjee, in supporting the Attorney General’s reference indicated that it proceeds upon the basis that the quantity of weapons involved in the conspiracies was significantly less than that to which he had referred in his opening of the matter to the Judge. However, he submitted that, allowing for caution, the quantity involved could not realistically have been less than about 150 guns, which was less that the amounts proved to have been acquired by the offenders from Target Arms alone. He suggested that any suggestion that the quantity could have been less than that was so wholly implausible that a factual determination of it by a Newton inquiry (R v Newton 77 Cr App R 13) would not have been warranted.

Mr Jafferjee identified the aggravating features of the offences as: 1) the vast quantity of weapons involved; 2) the length of the conspiracies – 10 months; and 3) the offenders’ intention as part of the conspiracies to equip criminals with fully functioning firearms to put fear into others. He identified as the only mitigating feature, the offenders’ pleas of guilty. He maintained that, in the light of those aggravating features, the total sentence of six years’ imprisonment in each case failed to mark the gravity of the offences and public concern about such a vast scale of offending with firearms, and that in order properly to mark such gravity the Judge should have dealt with the matter by way of consecutive, not concurrent, sentences. He submitted that in each case the overall sentence was unduly lenient and one to which Part IV of the Criminal Justice Act 1988 applies.

In so submitting, Mr Jafferjee relied upon a number of authorities indicating the upward trend in sentencing for serious firearms offences such as these. He referred principally R v Avis [1998] 2 Cr App R(S) 178, in which Lord Bingham CJ (as he then was), giving the judgment of the Court, spoke of the dangers of the increasing availability of firearms to criminals to commit serious offences involving the taking of life or causing serious injury, and indicated that since the increase in maximum sentences effected by the 1994 Act, sentencers should consider higher sentences for firearms offences than had customarily previously been imposed. Giving guidance for the future, Lord Bingham stated that sentencers should usually consider four matters, namely: 1) the nature of the weapon and whether it has a lawful use; 2) the use, if any, made of it; 3) the seriousness of unlawful intent in possession of it; and 4) the defendant’s record, if any, of offences involving firearms or of violence. Lord Bingham said that if the result of those considerations are adverse to the offender the sentence should be at or approaching the maximum in a contested case.

Mr Jafferjee also drew the attention of the Court to section 51A of the Firearms Act 1968, introduced by section 287 of the Criminal Justice Act 2003, which introduced minimum sentences in the absence of exceptional circumstances for certain firearms offences. Notwithstanding, as he acknowledged, that this new provision had no retrospective application to these offences, he mentioned it as a further instance of statutory encouragement of an upward trend in sentencing for firearms offences.

Given all those factors, in particular the considerations indicated by Lord Bingham in Avis, he submitted that, in the case of each offender, the aggravating features clearly outweighed the single mitigating factor of the pleas of guilty, so as to require the sentence to be at or near the maximum of ten years. But he could not stop there, for, on the face of it, the Judge, having undertaken to give each of the offenders a “full discount” for his pleas of guilty, and having expressly indicated a starting point of 9 years, but for those pleas, had complied with the guidance of Lord Bingham in Avis. However, that would follow only if it was appropriate in the circumstances to impose concurrent sentences for the three counts by treating them as part and parcel of a single course of criminal conduct. Mr Jafferjee’s stance on this was, as it had been before the Judge. He submitted that there were different and mutually aggravating elements in the conduct charged in each of the counts and that, given the maximum of ten years imprisonment for each offence, the overall criminality of the enterprise could only be adequately reflected by the imposition of consecutive sentences so as to produce a longer term than six years.

Mr Hurlock prefaced his response to the reference by challenging the volume of guns attributed by the prosecution to Herbert’s involvement in count 1 of the conspiracy. In doing so, he referred, not only to the generality of the prosecution evidence as to the manufacture and disposal of guns, but also to limitations in that evidence as to his direct involvement with particular guns. In this respect, he relied upon Mr Gadsden’s acknowledgement to the Judge before re-arraignment that there were certain matters of such sort that the prosecution could not gainsay. He also submitted that the Judge correctly treated the conduct the subject of the three counts - manufacture, sale and possession for the purpose of providing guns to criminals to frighten others – all as part and parcel of one criminal course of conduct, and that he was right to deal with it by way of concurrent sentences.

Miss Rodham, on behalf of Beard, repeated the similar arguments that she put to the Judge and also those with particular reference to his basis of plea. She supported the Judge’s treatment for the purpose of sentence of the offences charged in the three counts as being part of one course of criminality.

What should have been a comparatively straightforward sentencing exercise for the Judge was muddied from the start by his initial offer through the court clerk, and then his commitment to the offenders in the discussions with counsel before re-arraignment, to given them “full credit” for their pleas of guilty. This was a case where the prosecution evidence against both men was strong, where they had declined to answer any questions in interview and where they delayed tendering pleas of guilty until 15 months later until the first day of trial. It was plainly not a case for a full discount for pleas of guilty.

The second potentially “muddying” element were the bases of pleas put forward by each defence counsel, going principally to the number of guns referable to the conspiracies individually and as a whole, and also to the part played directly by each of the offenders in relation to different parts of the process and to individual guns or consignments of guns. Notwithstanding the strength of the prosecution evidence demonstrating their involvement in each of the conspiracies overall, the prosecution evidence identifying each of the offenders in particular overt acts was - not unusually for such cases – in some respects tenuous. In such circumstances Mr Gadsden adopted the only stance that was properly open to him, namely not to agree the bases of pleas advanced by the offenders, but to indicate that in some respects he could not controvert – or, as he put it - “gainsay” them.

Accordingly, as Mr Hurlock and Miss Rodham acknowledged in their submissions to this Court, it was never contended by them that the Judge was bound in any sense by the basis of pleas. Those untied ends were, therefore, left for the Judge to determine if he could, whether by way a Newton inquiry or otherwise. No suggestion was made by counsel to him that he should conduct such an inquiry, and he did not do so. It is plain from his sentencing remarks that he felt able to form his own view, from the abundant evidence implicating each offender, of the nature and seriousness of their respective overall responsibility for each of the conspiracies. That is not surprising given the nature of the charges to which the offenders pleaded guilty, statutory conspiracies, rather than substantive offences constituting overt acts in such conspiracies. It was no doubt with that in mind that Miss Rodham expressly stated to the Judge in the discussions before re-arraignment that the points taken in Beard’s basis of proposed plea statement were not substantial and probably would not affect his sentencing decision. In addition, the sort of matters that the offenders were advancing in their basis of plea statements fell within the third exception established by cases to the Newton requirement to hold such a hearing, namely they were matters that did not contradict prosecution evidence but merely sough to minimise by assertion as to detail the overall effect of it.

Accordingly, the only matter left for consideration is whether, given the enormity and seriousness of this criminal conduct, charged by way of separate conspiracies to commit different forms conduct each individually capable of constituting a substantive offence under section 5 of the Firearms Act 1968, the overall sentences of 6 years imprisonment were unduly lenient. In some cases, the prosecution and the evidence may be confined to one only of those forms of conduct: in others, like this, they may embrace the whole chain of criminal conduct from manufacture to sale and to holding possession for future distribution to criminals. In the latter case, where, the true culpability of the persons to be sentenced can properly be marked by concurrent sentences for what could be regarded for the purpose as one course of criminal conduct, it is within the sentencer’s discretion to adopt that course. But where, as here, the seriousness and range of the individually indicted components of the criminal conduct charged as a conspiracy, looked at overall, calls for a higher sentence than that permitted for any one of them considered on its own, the sentencer should reflect that seriousness by consecutive sentences.

In our view, that is what the Judge should have done here. Despite his early indications that he had provisionally in mind concurrent sentences, he gave no commitment before re-arraignment to adopt that approach, and the offenders can have had no legitimate expectation that he would impose the concurrent sentences that he did when the time came. Whatever the uncertainties at the edge of the prosecution case as to the precise numbers of guns involved and the direct involvement of each of the offenders in the various stages of the conspiracies, the plain effect of the evidence available to the prosecution was to show their involvement in a massive gun making and distribution exercise, designed to provide criminals with the means of terrifying, if not maiming or killing, their victims. The conspiracies required sentences of a very high order. In our view, the appropriate starting point for sentence for such criminality would have been a total of about 15 years’ imprisonment in each case. From that starting point there should be a reduction to 9 years after allowing for the “full discount” promised to the offenders by the Judge and a period to allow for the double jeopardy inherent in this reference. Staying loyal to the Judge’s view that the conduct charged in the three counts was, in the circumstances, all part of a single course of conduct and that there was no reason to differentiate between the two offenders, the only appropriate way of achieving that outcome is to deal with the matter in each case by way of three consecutive sentences of 3 years’ imprisonment. each reduced to that low level only on account of totality and the element of overlap between the three offences charged.

Accordingly, we grant the reference and substitute for the Judge’s overall sentence of 6 years imprisonment a total sentence of 9 years imprisonment made up as we have indicated.