McDonnell, R v

LORD JUSTICE MOSES: This is an appeal against a sentence of 9 months' imprisonment imposed for the possession of a prohibited weapon a CS canister. This was an offence of which the appellant was convicted after a trial on 6th October 2009 at Wood Green Crown Court. The appellant had been found guilty of possessing, for personal use, a quantity of Class B, Class A and Class C drugs for which he was fined. The jury was discharged in reaching a verdict in relation to possessing a Class C drug with intent to supply, where this appellant is awaiting a retrial on that matter. It is therefore unfortunate, although perhaps inevitable that he was sentenced without waiting for the result of the retrial. He was observed by officers keeping him under surveillance, near his house, arrested and when he was arrested he suffered injuries in which his arm was broken and he is still suffering from the effects of those injuries whilst he is in prison.

The appellant gave an account of his possession of the CS canister in which he blamed his wife, saying that he had forgotten she had it and was unaware that it was on the window sill by the entrance to his house. The jury disbelieved him but it is important to emphasise that although the jury disbelieved him, the judge acquitted him of having the CS canister in relation to his possession of the drugs. The judge recorded, in his careful sentencing remarks, that he had that CS canister with a machete-type weapon and a machete as a defence of the judge described as an unlawful invasion of his house.

The gravity of the offence lay so the judge said, in the possibility that a weapon like a CS gas canister might get into the hands of those who wished to commit more serious crimes.

The question thus arises as to whether a 9-month sentence of imprisonment was appropriate on that factual basis. The appellant is now 49 and has never been in trouble before. Any sentence of imprisonment is therefore likely to have a particular impact upon him exacerbated by the consequences of his injury when he was arrested. He still suffers from that injury with reduced mobility and strength and indeed that will hit him hard since his previous employment was that of a builder.

Mr Henley, on his behalf, contends that the judge's starting point of 12 months' imprisonment in that factual context was manifestly excessive. We agree. The possession of a prohibited weapon such as a CS canister is always serious. It merits, even in the case of a man of this age, who has never been in trouble before, a prison sentence. But we do not agree that on the factual basis found by the judge, it merits a sentence as a starting point as high as 12 months. It would clearly merit such a sentence and probably a higher sentence were that possession to be associated with drugs but the judge deliberately made no such connection. We have been referred to what were described as relevant authorities, R v Horn [1997] 2 Cr App R(S) 172, in relation to the possession of a CS gas cylinder in a car which we suggest is now way out of date. More relevantly is the authority R v Palmer [2001] EWCA Crim 928, in which a sentence of 3 months was passed in circumstances not dissimilar from the ones in the instant appeal.

We take the view that 3 months' imprisonment would be too low having regard to the danger of a weapon such as this. In those circumstances, we shall allow the appeal to the limited extent of reducing the sentence of 9 months' imprisonment to one of 6 months' imprisonment. To that limited extent the appeal is allowed.