R v Lukasz Chudziak

On 1 May 2025 in the Crown Court at Preston, the applicant pleaded guilty to an offence of possessing a prohibited firearm, contrary to section 5(1)(aba) of the Firearms Act 1968. That is a sentence which by reason of section 311 of the Sentencing Act 2020 carries a mandatory minimum sentence of five years' imprisonment even after a guilty plea, unless the court is of the opinion that there are exceptional circumstances which relate to the offender or the offence that justify not imposing that sentence.

The plea was tendered on a written basis which initially the Crown did not entirely accept, and the case was listed for a Newton hearing. However, as we shall explain, when it became clear that the matter in contention would make no material difference to the sentence, that hearing was vacated by consent and the judge ordered a pre-sentence report. This indicated that the risk of re-offending was low. The author found that there was genuine remorse.

The sentencing judge in this case, HH Judge Hodgkinson, was persuaded that there were exceptional circumstances. On 24 March 2026 he passed a sentence on the applicant of 31 months' imprisonment, after affording him full credit for his guilty plea. The notional sentence after trial was stated to be four years, but mathematically that should have produced a sentence of 32 months' imprisonment. The judge also imposed a Serious Crime Prevention Order for five years. Given that the prosecution and the defence were in agreement that the offence fell into category 3B under the relevant guideline, with a starting point of five-and-a-half years and a range of five to seven years, that outcome might have been regarded as optimal, but the applicant seeks leave to appeal on the basis that even the sentence of 31 months was manifestly excessive. The Registrar has referred the application to the Full Court.

The applicant is a national of Poland who has lived and worked lawfully in England for over 20 years, principally in the IT sector, and latterly in vehicle electronics. He has a BSC in IT and management from a Polish university. He had no previous convictions here or abroad, and prior to this offending was a man of positive good character. At the time of his arrest he was 43 years old, and up till then had lived an entirely blameless life, raised a child and supported his family. He has no criminal associations.

The applicant has owned and used 3D printers since 2018, and over the years he has used them to create household and decorative items. A portfolio of his work, which was among the exhibits, included decorative boxes, ornamental vases, a treasure chest with working hinges, fishing lures and a highly complex multi-part steam punk mechanical sculpture with gears, pistons and shield components.

In early 2024 the applicant started researching the feasibility of using a 3D printer to produce a firearm. Although there has never been any clear explanation of what motivated him to do so, the author of the pre-sentence report accepted that he did so out of curiosity and that his interest related to whether it was possible to make a 3D printed gun that would be strong enough to function. The instructions he download from the internet were compatible with construction of an FGC-9 MK11, a 3D printed hybrid gun described as a "pistol calibre carbine" designed to fire 9mm parabellum bulleted cartridges, with self-loading semi-automatic operation. It was a type 1 weapon.

On 1 March 2024 Lancashire Police received information to suggest that the applicant had made purchases consistent with the construction of a 3D printer firearm, and a warrant was obtained for his home address. The warrant was executed on 8 March 2024. Various items were seized, including 3D printed parts, a laptop and hard drives, blank cartridges and a 3D printer. The applicant was arrested at his place of work. His mobile phone was seized. He provided his PIN. He was granted unconditional bail. He was subsequently interviewed in the presence of his solicitor and made no comment in answer to all questions.

At the time of his arrest the firearm had not yet been fully assembled, though many of its constituent parts had either been obtained or created. The various component parts were subsequently analysed and assembled by Ms Sophie Pye, a firearms expert. She followed the instructions within a document accessed by the applicant, and was able to construct a working firearm. Some parts listed in the document were missing from the items supplied to Ms Pye, including a buffer spring, charging handle, hammer pin and certain sizes of screws. During assembly these parts were either omitted or an improvised replacement was used instead, for example an Allen key in place of the hammer pin. Ms Pye said this appeared to have no significant impact on the function of the assembled gun.

Importantly, the parts were insufficient to allow a normally functioning FGC-9 gun to be assembled. The chamber and barrel bore in the barrel unit had not yet been resized in order to make it suitable for 9mm bulleted ammunition. No standard ammunition was compatible, and in its current state the barrel unit was slightly too wide to fit 8mm bullets. Therefore the expert had to improvise in order to demonstrate its firing function using 8mm ammunition and a thin layer of tape to hold it within the barrel bore. It was single shot only, could only be fired using improvised ammunition and was prone to mis-fire during tests.

DC James analysed the printer and hard drives recovered from the applicant's address and found, among other matters, that the SD card in the printer contained various files consistent with the printing of parts for the firearm. A file had been downloaded which related to the insertion of a firing pin into that firearm, an item had been ordered from a website which sells firearms parts and tools on 4 March 2024, and there were various videos in respect of 3D printed bullets and numerous searches on Chrome for "3D printed bullets", "deactivated bullets", "modified air soft for live ammo" and "air soft first and only". There was also a 38-page manual which described how to make 9mm rounds and a seven page PDF file entitled "function checking firing pin test guide".

The Crown was not prepared to accept that the applicant had no intention of firing the firearm upon construction. However, they did accept that the weapon was only going to be fired for the purposes of making sure that it worked. That was consistent with the search that the applicant had carried out into a Blackburn firing range.

As prosecution counsel pointed out in a helpful sentencing note, the issue as to whether the applicant intended to fire the weapon went to the question of culpability, but ultimately made no difference to the category in which the offence was placed for the purposes of sentencing, since for a type 1 weapon either medium or lower culpability equates to culpability B.

The judge also had the benefit of a very detailed sentencing note from defence counsel, Mr Patel KC who appeared not only at the trial but this morning before us. It pointed out, among other matters, that the gun was an incomplete, improvised, single shot device incapable of firing standard ammunition, and that it was prone to mis-fire and missing several essential components. There was no evidence of any criminal purpose or intention to use the weapon in an unlawful manner. Nothing was ordered, accessed or obtained from any dark web source.

The applicant had written a letter to the court. In it he explained that he was constantly worried about his family home in Poland, as his home town is close to the borders with Belarus and Ukraine and there was a heavy military presence there. The Mayor had announced a possible evacuation. His parents could hear explosions at night. He began researching survival and preparation strategies, planning evacuation routes and considering defensive equipment. It was in this context that he first encountered information about 3D printed firearms and became curious about whether a printer could produce a functional firearm. This conduct was said to be in keeping with his psychological profile, attested to by a note from his treating psychotherapist, Mr Karpinski.

The defence note for sentence also referred to the extensive evidence of the applicant's mental health issues. Some seven weeks after his arrest he first presented to his GP with major depressive symptoms and was prescribed anti-depressant medication. He subsequently made several attempts to take his own life. He was referred to Mr Karpinski who diagnosed complex PTSD and severe anxiety with panic elements, recurrent intrusive thoughts of death and significant emotional suffering relating to fear of separation from his son. It transpired that he had experienced childhood violence from his father and prolonged psychological abuse from a teacher. As an adolescent he had serious learning difficulties which were apparently left undiagnosed, and an unhappy, isolated experience in a boarding school located a considerable distance from his home. He had first attempted to take his own life whilst still a child.

Between 2005 and 2006 the applicant was the victim of a forced labour environment in Italy from which he and his brother managed to escape. Two other men who tried to flee with them were less fortunate, as they were unable to fit into the vehicle. Their disappearance was reported publicly in Poland. His feelings of guilt about that event had been carried for approximately 20 years. The author of the pre-sentence report assessed the risk of suicide as likely to increase if he were to receive a lengthy custodial sentence.

There was also considerable evidence as to the applicant's family circumstances. His wife works on a production line in shifts. She does not drive and her annual income is approximately £31,000. The family has very limited finances and it was said that if he went to prison she would be unable to maintain the mortgage whilst also funding alternative childcare and transport. Her mother, who lives in Poland, has been diagnosed with breast cancer and underwent a major operation in May 2024. There are no relatives in England who could absorb the childcare gap. The applicant was the primary carer for their eight-year-old son whilst his wife was at work, and supported his school work in English. His wife's understanding of English is more limited. The little boy has done very well at school and won a trophy as student of the year in March 2025. He had become very distressed and developed sleep problems at the prospect of being separated from his father.

The applicant also supports his own mother financially. She is retired and lives in Poland and is caring alone for a 96-year-old bedridden mother.

In his sentencing remarks, the judge indicated that in deciding whether exceptional circumstances existed he had considered all the material before him, including the defence note for sentence, the pre-sentence report, the applicant's medical records, his psychotherapy notes, the character references and his previous good character. He had also taken into account the nature of the firearm which was recovered. He concluded that no single factor was exceptional on its own, but taken cumulatively he was persuaded that exceptional circumstances did exist, and that he was not bound to impose the statutory minimum sentence. Indeed later in his sentencing remarks he found in terms that the statutory minimum sentence would be arbitrary and disproportionate.

That being so, the judge then considered the sentence on a conventional basis. He referred to the applicant's stable employment history; he said he was a hardworking man; he had no previous convictions; the character references spoke of his good nature and hardworking history; he had demonstrated genuine remorse; and there was no evidence of any criminal intent beyond the offence in itself. The judge had expressly considered the guidelines on sentencing offenders with mental health difficulties. He treated these as reducing the applicant's culpability.

He accepted that the applicant's motivation was rooted in anxiety for his family abroad. He said that he had taken account of his very strong work ethic, the positive references and significant family responsibilities including the care of his son. Weighing all the matters he had read and heard about the applicant and all the matters referred to in his remarks, the least sentence the judge said he could have imposed after trial was one of four years' imprisonment, which he reduced to 31 months for the guilty plea. He made it clear that even if it had been possible to suspend the sentence, he took the view that the inherent riskiness of the offence meant that only immediate custody would have been appropriate in any event.

It appears from exchanges between counsel and the judge at the sentencing hearing that what the judge had in mind was the inherent risk that a firearm produced by these means might find its way into the hands of those who might use it for criminal purposes, even if the person who created it had no such intention.

The Registrar ordered a report from the prison where the applicant is serving his sentence. He is currently employed in a gardening workshop and has cited an interest in engaging in education. He appears to be engaging well and has three positive entries relating to good conduct and effort, both on the wing and in his workshop placement. He has also attended three sessions with his Prison Offender Manager who, consistently with the assessment of the author of the pre-sentence report, said he appeared genuinely remorseful for his behaviour and aware of the risks around this offending. He acknowledged that curiosity influenced his actions and expressed regret in the decision he made. Again, consistently with the pre-sentence report he was assessed as posing a low risk of re-offending.

Ground 1 of the grounds of appeal against sentence contends that there was a "manifestly excessive starting point". As the court pointed out to Mr Patel in exchanges this morning, that is problematic, since the starting point in the definitive guideline for an offence of this type is five-and-a-half years' custody, which the transcript of the sentencing hearing indicates the judge had well in mind. That starting point already takes into account the fact that there was no risk of death or serious injury, no risk of serious disorder and that no alarm or distress was caused, as those matters put this offence into category 3 in the first place.

The fact that exceptional circumstances are found does not mean that the guidelines must simply be ignored. Indeed, when the judge put it to Mr Patel at the sentencing hearing that if he were to find exceptional circumstances he would still have to remain within table one in the guidelines, Mr Patel realistically responded that he had to accept that.

Having found exceptional circumstances for the reasons that he adumbrated, the judge adjusted that starting point downwards by 18 months for the extensive mitigation he identified. The guideline makes it clear that if there are exceptional circumstances that justify not imposing the statutory minimum sentence of five years, the court must either impose a shorter custodial sentence than the statutory minimum or an alternative sentence, but it should always impose a sentence that is appropriate to the individual case.

That is what the judge sought to do. In our judgment, the sentence that he passed was plainly within the range that was open to him.

An attempt has been made by Mr Patel to extrapolate from the case of R v Francis [2019] EWCA Crim 1201, which does not appear to have been cited to the judge, a principle that three years is a "ceiling" for offending where exceptional circumstances have been found on facts which were said to have been of materially greater culpability. This court has stressed time and again that unless a previous decision is a guideline case, there is no useful purpose to be served by seeking to rely upon the sentence passed in another case which will inevitably turn on the particular facts and the mitigation advanced in that case. Indeed, in Francis itself the court said at paragraph 50 that ultimately each case will turn on its own facts.

The sole issue in Francis was whether the trial judge should have found exceptional circumstances in a situation in which the gun, a sawn-off shotgun, was left in a bag at the defendant's property without her knowledge. On discovering it, in panic she demanded its removal, thereby allowing it to return into circulation. It was only in her possession for a short time and she was, as the court put it, "caught up unwillingly in a very difficult situation". There was cogent but not in itself exceptional personal mitigation, most particularly as to her mental health, and the defendant was the mother of a young child who was being cared for by his father in her absence. The court reduced the sentence to one of three years, but although that was too long to enable a suspended sentence to be passed, still found expressly that an immediate sentence of imprisonment was necessary. That reflects the seriousness with which Parliament and the courts take of offences of this nature because of the possibility that firearms will find their way into circulation amongst those with criminal tendencies.

It is submitted that by taking what is mis-described as a starting point of four years, the judge treated the mandatory minimum as a flaw rather than disapplying it, which is characterised in the advice and grounds as an error of principle. We cannot accept that characterisation, which is fundamentally misconceived. The four years was not the starting point but the notional sentence after trial. It was arrived at after factoring in all the mitigating features, there being no aggravating features.

This is a case in which the applicant deliberately set out to create a working firearm using a 3D printer. He did not come into possession of its components unwittingly. Whilst there was extensive mitigation, which we have adumbrated, and the judge specifically found a reduction in his culpability by reason of the mental health issues that were identified, it is unrealistic to characterise a sentence of four years before credit for the guilty plea as manifestly excessive.

It was also submitted that the judge failed to have regard or sufficient regard to the impact of custody on the applicant. That submission simply cannot be reconciled with the judge's sentencing remarks. They make it clear that he had taken into consideration all the material relating to that issue, including the pre-sentence report and the medical records. He had also considered the defence sentencing note which made extensive reference to the applicant's suicidal ideation.

The advice and grounds refers to the application of the guidelines on the imposition of custodial and community sentences, but those guidelines would only have been of relevance had the notional sentence after trial been three years or less.

Despite Mr Patel's submissions, we are not persuaded that the judge fell into any error in the way in which he approached the sentence in this extraordinary case. We therefore refuse leave to appeal.