Practice and Procedure


PUBLISHED October 8, 2003

A sentence of seven years' imprisonment for three firearms offences, and three years imprisonment to run consecutively for an offence of conspiracy to pervert the course of justice, was correct and did not offend the principal of totality.Two applications by the applicant ('G') for leave to appeal against: (i) a sentence of seven years' imprisonment on three separate firearms offences; and (ii) a sentence of three years' imprisonment to run consecutively for an offence of conspiracy to pervert the course of justice which G had committed while on remand in prison for the firearms offences. The police found fifteen bullets and a black balaclava hat in G's possession when his clothes were searched following his admission to hospital with a gunshot wound. The bullets were of a particularly unpleasant kind designed to do maximum injury to a victim. G was arrested and charged on an indictment of three counts: (a) possessing ammunition with intent to endanger life, contrary to s.16 Firearms Act 1968; (b) conspiracy to obtain a firearm with intent to endanger life contrary to s.1(1) Criminal Law Act 1977; and (c) possessing prohibited ammunition contrary to s.5 of the 1968 Act. G pleaded guilty to the third count and was found guilty by a jury of the other two counts. While in prison G sought to intimidate witnesses over the phone in connection with another firearms offence and was sentenced to three-years imprisonment, following a guilty plea, to run consecutively with the offence of conspiracy to pervert the course of justice. In relation to the firearms offences the judge sentenced on the basis that although one of the purposes of G obtaining a gun was to defend himself, he had intended to use it to commit other serious offences, the presence of the balaclava being consistent with this finding. G submitted that: (I) seven years' imprisonment was manifestly excessive in the light of recent authorities Attorney General's Reference No.2 of 2000 (2001) 1 CAR; (II) G might never have received the firearm which he had conspired to receive; (III) G had been unaware of the particularly injurious form of the ammunition in his possession; (IV) G had made full admissions in interview and the admissions had formed the basis of the second charge. In relation to the second offence G submitted that: (V) the sentence was manifestly excessive in the light of the fact that there was a maximum sentence of five years imprisonment for the offence of witness intimidation and in line with R v Archer (2002) LTL 2/8/2002; (VI) insufficient account had been taken of the guilty plea; and (VII) the recorder had offended the principal of totality as the total sentence of ten years was too much.HELD: (1) It was improbable in view of the ammunition in G's possession that he would not have obtained the firearm. (2) In any event the second offence was a grave offence in its own right. (3) The judge had been sentencing on the basis that G had been aware of the type of ammunition in his possession. (4) G contested his guilt on counts one and two and was found guilty by the jury. In those circumstances he could not by the back door claim something akin to a credit for a plea. (5) Each firearm case turned on its own particular facts. (6) There was nothing in the notional correct sentence referred to by the Court of Appeal in the Attorney Generals Reference (supra) which was out of line with the sentence of seven years imposed by the judge. (7) This case involved threats of violence being made from prison by a member of the criminal community currently serving seven years for firearms offences. (8) Any threats of the kind which G had been seeking to convey would be taken very seriously by the recipient and could impair the administration of justice. (9) Such threats were intended to weaken the protection which the courts afforded law-abiding citizens. (10) The recorder had been correct to impose a sentence of three years imprisonment.Applications dismissed.

[2003] EWCA Crim 2628