Gilman, R. v

MR JUSTICE JACK: On 30th September 2005 at the Crown Court at Stoke-on-Trent, the appellant James Gilman pleaded guilty to possessing an imitation firearm with intent to cause fear of violence. On 25th October he was sentenced to 18 months' imprisonment. He now appeals against that sentence by leave of the single judge.

The facts lying behind the offence were as follows. During the afternoon of Wednesday 22nd June 2005 a 16-year-old boy, Ashley Salt, was playing football with friends outside some garages near to the appellant's home. The appellant arrived in his car, got out and asked the group to leave. It was his view that they were disturbing the residents. According to Salt, the appellant then said: "I'm going to get my gun and shoot you, you little shit." He went to his house and returned a few minutes later with a plastic case, inside of which was some kind of imitation firearm. Some of the boys ran off, but Salt and another remained. The appellant grabbed hold of Salt's t-shirt, put the weapon to his head and said: "I don't care who you are, I'll put a hole in your head." Salt protested but the appellant ignored him. The appellant remarked that he had shot someone before and got away with it so he was not frightened of the police being called - that being something that Salt had said he would do by means of his mobile phone. The appellant then let go of Salt and went back inside his house. Salt told his parents what had happened. He gave a description of the weapon, which differed from that later provided by the appellant.

We remark that Salt, although this must have been an unpleasant experience for him, perhaps very unpleasant, he does not appear to have been particularly frightened and in his statement he says that he is about two inches taller than the appellant.

On 23rd June, the next day, the appellant was arrested. Officers recovered a black plastic pellet gun that looked like a real firearm. A similar weapon was found at the home of the appellant's girlfriend. When he was interviewed the appellant said that there had been problems with youngsters frightening elderly residents by playing football against the garages. The boys had said that there was nothing he could do about it. He got the pellet gun. He said Salt recognised what it was and said that it would only sting if the appellant shot him. The appellant said that he had replied with: "I won't shoot you with it, I'll ram it down your throat".

The appellant pleaded guilty on the basis that he had threatened Salt with a plastic ball-bearing gun. That basis of plea was not accepted by the Crown but it was accepted by the court on the basis that little turned on the dispute between the appellant and Salt as to the type of gun. It appears that the ball-bearings, that were referred to in the plea, were also of plastic like the gun itself.

In passing sentence the judge included the following in his remarks. The appellant was sentenced on the basis that what he produced was a BB gun. He acted out of annoyance and anger because some youths had refused to stop playing football near an alleyway. That could not possibly excuse his actions. His reaction was totally out of proportion to what the boys were doing. People who took the law into their own hands went down a path that was fraught with danger. People who were prepared to use firearms, whether real or imitation, to make a point or to get their own way were a menace and a danger to society. Only a custodial sentence was justified. He had the good mitigation of a guilty plea entered at the first opportunity and supported by his admissions in interview. Account was taken of his health which was described in the pre-sentence report. The court was not satisfied that there was a significant risk of serious harm. He was not to be sentenced as a dangerous offender. After a trial the sentence would have been two-and-a-half years' imprisonment. After credit for the plea and account being taken of the fact that he was being sentenced under the new regime the sentence would be 18 months.

The appellant is a man of 49 years old. He has a number of previous convictions, having been previously dealt with by the courts on 18 occasions between 1967 and 2005. His first offences were burglaries. He was put on probation for three years for assault occasioning actual bodily harm in 1976 and he received a conditional discharge for a second such offence the next year. Between 1998 and 2005 he was before the courts on eight occasions for offences relating to cannabis, apparently resulting from his use of cannabis to control pain. Lastly we note that in May 2000 he was conditionally discharged for threatening behaviour.

There was a pre-sentence report before the sentencing court. It stated that the appellant was adamant that he would not have fired the weapon, which was in any event not capable of causing serious harm. The writer had made some enquiries as to the weapon and expressed a view that it was capable of firing plastic pellets about 40 yards and that at close range the pellet would cause a sharp sting and leave a mark on bare skin. The report recorded that the appellant suffered from angina and had had three heart attacks. He also suffered from osteoporosis and was under medication from his doctor to help him cope with his stress. There was no recent relevant pattern of offending, the report stated, that would significantly aggravate the level of seriousness that was already attached to the offence. It recommended a suspended sentence.

Three grounds of appeal were advanced before us. First, insufficient account was taken of the type of firearm. Second, insufficient weight was attached to the background to the offence, in particular the appellant had limited ability to cope with the stress and perceived himself and others to be a victim of sustained anti-social behaviour. Lastly, although the appellant had a number of previous convictions he had none for offences connected with firearms and there was only the one public order offence.

Mr Cliff in his helpful advice has referred us to three cases on behalf of the appellant in which guns or imitation guns were used to make threats in circumstances where there was no intent to use the weapon and there was no serious criminal intention, where quite low sentences were passed following pleas. There were: Steele [1999] 1 Cr.App.R (S) 369 where a sentence of 18 months was reduced to nine months; Thompson [1999] 2 Cr.App.R (S) 292 where a sentence of two years was reduced to four months; and Poggiani [2001] 2 Cr.App.R (S) 64 at 305 where a sentence of 12 months was reduced to six months. They all of course turn on their own facts, but they do indicate that a more lenient approach can be taken to offences of possessing an imitation firearm with intent to cause fear of violence where that is appropriate. Mr Cliff has also emphasised to us today the background to the offences that in the appellant's view there was a history of anti-social behaviour by youths which centred on the alley where the offence took place.

Here we have to have in mind in particular the circumstances giving rise to the offence, the appellant's conduct while he committed the offence and his personal mitigation that includes his poor physical health and his difficulty in coping with stress. The fact that he was before the courts for a public order offence in May 2000 is an aggravating feature.

We are wholly satisfied that the judge was right to regard the present offence as requiring a sentence of immediate custody. We do, however, conclude that in all the circumstances the sentence of 18 months was rather longer than was appropriate. That sentence will be set aside and one of nine months will be imposed in its place. The appeal is allowed accordingly.