R v Maddison Marie Barrett

This is an appeal against sentence brought with leave of the single judge.

On 23 September 2024 in the Crown Court at Harrow, the appellant changed her plea to guilty on one count of possessing a prohibited firearm, contrary to section 5(1)(a)(b)(a) of the Firearms Act 1968 and an associated offence of possessing ammunition without a firearms certificate, contrary to section 1(1)(b) of the same Act.

On 9 April 2025 at the same court the appellant was acquitted by a jury at the direction of the judge of a count of possessing a firearm with intent to endanger life.

On 13 June 2025 the appellant was sentenced to a total of 46 months' imprisonment. A co-defendant, Kenny Aliki, had pleaded guilty to a variety of drugs and firearms offences. The jury acquitted him of possession of a firearm with intent to endanger life. He was sentenced to a total of nine years and three months' imprisonment.

On 29 August 2023 a Remington 1911 handgun was recovered from the home address of the appellant. The address was one that the appellant shared with her parents and other family members, including a young niece and nephew. The firearm had been concealed on the top of a wardrobe in a make-up box; it held a single, unfired bullet. The gun was found hidden in a black plastic bag. On inspection of the bag the appellant's fingerprints were found on the inside, suggesting that she had hidden the firearm in full knowledge of what it was that she was concealing.

The appellant was arrested and subsequent analysis of her mobile phone led the police to arrest Aliki. Examination of his mobile phone revealed him to have been in possession of a Grand Power 9 handgun, along with the magazine for the weapon and three bulleted cartridges. The appellant was thereafter interviewed by the police and accepted that she had been in possession of the Remington for around two weeks having received it from Aliki. She gave a prepared statement stating that she had been coerced into taking the firearm under duress. Aliki's mobile phone revealed that he had been involved in supplying class A drugs, namely cocaine.

The appellant was aged 23 at the time of the offending and 25 at sentence. She is now aged 26. Prior to these offences she was of good character, having no convictions or cautions recorded against her. The court had available to it a pre-sentence report and a psychologist's report together with addendum, all of which we have read. The prosecution and defence both produced notes for sentence. There was a letter from the appellant to the judge, together with letters from her parents and a number of character references, all of which we have read and considered carefully.

In her careful and thorough sentencing remarks, the Recorder found, first, that the co-defendant Aliki possessed both firearms (the Remington and the Grand Power 9) in connection with his criminal activities in supplying class A drugs. He had given the Remington to the appellant to house for him two weeks before the police discovered it. The judge rejected the suggestion that the appellant had been coerced but did accept that she had taken the firearm "out of impulse and with a level of fear of reprisals, whether or not that was a justified fear in all the circumstances." There was nothing to suggest that the appellant knew of Aliki's possession of the firearm in connection with his criminal drug dealing activities.

In considering the circumstances of this appellant, the Recorder noted her age (23 at the time the offences were committed) and her previous good character. The appellant was in work and had been working all the time she had been on bail. The psychologist, Dr Horsfall, had diagnosed her as having an emotionally unstable personality disorder with co-morbid PTSD and bi-polar disorder, occasioned by two severe traumatic events in her history, namely the death of her brother and a rape whilst she was at school. The Recorder noted the author of the pre-sentence report's assessment of the appellant as presenting a low risk of re-offending in the future. She also noted that the appellant was said to pose a high risk of self-harm in a custodial setting. As to discount for plea, the Recorder referred to the not guilty pleas entered at the plea and trial preparation hearing, after which the appellant had pleaded guilty on the first day of a trial that had already been adjourned. She concluded that the appropriate discount was one of 15 per cent and said that she would give a modest reduction for delay.

Having sentenced Aliki, the Recorder moved to consider the appellant and the application to her of the relevant Sentencing Council Guideline. She recorded counsels' agreement that culpability fell into Category B by reason of the fact that the Remington was a type one weapon and that it was loaded. She concluded that harm fell into Category 2 as the firearm had been stored in a family home where it could be accessed by others, including children. She referred also to an intention to return it to Aliki for use in connection with his criminal drugs enterprise.

The Recorder then turned to the issue of whether exceptional circumstances applied. As she properly noted, the minimum term provisions under section 311 of schedule 20 of the Sentencing Act 2020 apply to the offence of possession of a prohibited firearm, requiring the court to impose a sentence of at least five years, irrespective of plea, unless the court was of the opinion that there were exceptional circumstances relating to the offence or the offender which justified not doing so. In relation to exceptional circumstances the Recorder plainly had the guidance set out in the Sentencing Council Guideline well in mind. She rejected as exceptional the circumstances under which the appellant came to have the gun, likewise any or all of the appellant's previous good character, youth, inexperience, good prospects of rehabilitation or employment. She was however prepared to find that the appellant's diagnoses of the mental health conditions to which we have referred, taking what she called "an holistic approach" together with the other mitigating factors, could properly be described as exceptional for the purposes of the guideline. She described the decision as 'marginal', saying that she saw no reason to depart from the Table 1 guidance as to sentencing levels set out in the guideline. Accordingly, the Recorder took the starting point of six years given for Category B2 and reduced it for the appellant's mitigation to a notional sentence after trial of four-and-a-half years. Applying a 15 per cent discount for plea resulted in a sentence of 46 months. She directed that the 647 days which the appellant had spent on qualifying curfew were to be taken into account, half of which is 324 days (rounding up); likewise an additional 75 days under which the appellant had been subject to a doorstep curfew.

Miss Zentler-Munro who represented the appellant at trial and at sentence makes the following points in her grounds, as expanded upon in clear and concise submissions today. First, she submits that the Recorder wrongly categorised harm as falling into Category 2 rather than Category 3. She says there was nothing to suggest that the appellant's possession of the gun occasioned any of the harms identified within the guideline and that harm in the appellant's hands is to be distinguished from harm in Aliki's hands - citing Luke Smith [2024] EWCA Crim 424 at [9]. The fact that the gun was being held in a home of children was not a sufficient basis to find Category 2 harm. There was no suggestion that it was located somewhere where the very young children could easily have accessed it.

Next, she says that the Recorder failed to distinguish sufficiently between the positions of the two defendants in locating the offence within the guideline category and range. Aliki had possessed the gun for longer, had handed it over to the appellant and he had held it for a criminal purpose.

Third, Miss Zentler-Munro argues that having found exceptional circumstances the Recorder should have gone to Table 2, as is suggested in the guideline, or if not then, in accordance with Otero [2023] EWCA Crim 981 she should have given reasons for not doing so.

Next, it is said that the Recorder failed to make a sufficient deduction for the fact that there were exceptional circumstances disapplying the minimum term, as well as for the appellant's mitigation. Citing Otero, Miss Zentler-Munro submits that disconnecting the minimum term requirement by a finding of exceptional circumstances of itself calls for a downward adjustment before consideration of mitigation. She referred us to the outcome in the cases of Otero and Luke Smith. Luke Smith was a case involving the possession of two guns, where this court approved the judge's reduction from six years to two years in the light of exceptional circumstances and mitigation.

Finally, she says that the judge made no adjustment to the range to reflect an element of lower category culpability. She says that that should have resulted in an adjustment and was not mentioned by the Recorder.

We begin by rejecting criticisms of the judge's categorisation of this offending. She heard all the evidence at trial and was best placed to determine the proper categorisation of harm. We note in this respect the guidance given in the guideline directly above the harm factors:

The Recorder clearly did consider location and the number of children and the nature of their potential exposure in assessing risk. We are wholly unable to find that she reached the wrong conclusion, nor are we persuaded that she erred in not turning to use Table 2 in the guideline. As the court noted in Luke Smith, the guidance given in the guideline is permissive, by no means prescriptive, providing as follows at paragraphs 13 and 14:

We consider that the Recorder did explain her decision to sentence by reference to Table 1. She provided a number of reasons which seem to us cogent and correct: see the transcript at Y17 D-F. We also reject any suggestion that the Recorder failed to distinguish sufficiently between the appellant and her co-defendant Aliki. It is quite apparent from her sentencing remarks that the Recorder approached the circumstances of each defendant entirely separately when arriving at the appropriate sentence for that individual.

The final matter which has required rather deeper consideration is a point of principle arising from the finding of exceptional circumstances. In Otero, Ellenbogen J, giving the judgment of the court, said this:

The judgment of the court in Rehman [2005] EWCA Crim 2056 was given by the then Lord Chief Justice, Lord Woolf. Amongst other things he discussed the rationale for the imposition of a minimum term and the consequence of a court finding exceptional circumstances at paragraph 12:

More recently, the court in Luke Smith endorsed an approach to sentence where the judge had reduced from the starting point in Table 1 by reason of the existence of exceptional circumstances:

These cases appear to us to demonstrate that as a matter of principle the existence of exceptional circumstances can, depending on the precise nature of those circumstances, act to disconnect the inflationary element attributable to deterrence which is the rationale for imposing a five-year minimum term. That decoupling would of itself call for a consideration of some reduction from the Table 1 starting point, independently of any reduction for mitigation. None of the cases to which we have referred above in discussing the point that Miss Zentler-Munro has made to us on this appeal, appear to have been put before the judge. The sentencing notes prepared for the Recorder by prosecution and defence make no reference to those cases or to the point now made by reference to them. It is apparent to us from the conscientious and thorough approach the Recorder took that had she been made aware of the Rehman/Otero point then she would certainly have addressed it. As it is, a consideration of some reduction by reason of the finding of exceptional circumstances has apparently been omitted from her otherwise excellent remarks.

The appropriate level of reduction will vary from case to case depending on the nature of the circumstances which have given rise to the finding. Moreover, the court will do well to bear in mind always that, as William Davies LJ pointed out in Luke Smith, dismissing an argument that the judge should have suspended the sentence he passed, "possession of a lethal firearm is a grave offence irrespective of the existence of a minimum term." In this case we bear in mind the Recorder's observation that her decision on exceptional circumstances was "marginal". Nevertheless, in our view some further reduction ought to have been made to take account of the finding of exceptional circumstances.

There is also a technical point bearing on length of sentence which we must address. It relates to the treatment of the time which the appellant spent on a doorstep curfew. The Recorder plainly intended this time to be taken into account. However she expressed it as 75 days being "taken into consideration as per section 240A" as an addition to and apparently on the same basis as the days to be taken into account by reason of the time which the appellant spent on a qualifying (i.e. tagged) curfew. However, as the time spent on a non-qualifying curfew does not fall under the statutory scheme, this aspect of the sentence appears unlawful. It was open to the Recorder instead to exercise her discretion to recognise the time spent on a doorstep curfew by reducing the length of the custodial term to reflect that time. We propose to do so now by reducing the final sentence by a further month.

We think that the correct notional sentence after trial would have been three-and-a-half years. To this we apply the 15 per cent discount which, rounding up the calculation of the discount, results in a term of 35 months which we reduce by a further one month to give effect to the Recorder's intention in relation to the time spent on non-qualifying curfew. Accordingly, we quash the sentence of 46 months, replacing it with one of 34 months.

There is one final matter. Credit was given for the time spent on qualifying curfew. The Recorder appears to have directed that the days be taken into account pursuant to section 240A of the Criminal Justice Act 2003 but this section had been repealed and replaced by section 325 of the Sentencing Act 2020. Accordingly, we confirm that having spent 647 days on qualifying curfew the appellant is entitled to a credit of 324 days against her sentence under section 325 of the Sentencing Act 2020.