Attorney General's References (Nos 128-141/2015 and 8-10/2016); R v Stephenson (Nosakhere) and Others
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd, CJ |
| Judgment Date | 09 March 2016 |
| Neutral Citation | [2016] EWCA Crim 54 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2015/05696/A3, 2015/05697/A3, 2015/05698/A3, 2016/05699/A3, 2015/05700/A3, 2015/05702/A3, 2015/05703/A3, 2015/05704/A3, 2015/05707/A3, 2015/05709/A3, 2015/05711/A3, 2015/05712/A3, 2015/05714/A3, 2015/05715/A3, 2016/00509/A3, 2016/00510/A3, 2016/00512/A3 |
| Date | 09 March 2016 |
[2016] EWCA Crim 54
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
HH Judge Burbidge QC
Birmingham Crown Court
Queen Elizabeth II Law Courts
Birmingham, B4 7NA
The Lord Chief Justice of England and Wales
Mr Justice Jeremy Baker
and
Mrs Justice Carr, DBE
Case No: 2015/05696/A3, 2015/05697/A3, 2015/05698/A3, 2016/05699/A3, 2015/05700/A3, 2015/05702/A3, 2015/05703/A3, 2015/05704/A3, 2015/05707/A3, 2015/05709/A3, 2015/05711/A3, 2015/05712/A3, 2015/05714/A3, 2015/05715/A3, 2016/00509/A3, 2016/00510/A3, 2016/00512/A3
Mr R Buckland QC MP (Solicitor General), Mr T Cray & Mr T Kenning for the Appellant
Mr A N Bajwa QC for the Respondents Stephenson and Miah
Mr Balbir Singh for the Respondent Nazran and Hussain (Usman)
Miss H Kubik for the Respondent McDermott
Mr R Butcher for the Respondent Wiggan
Mr M Graffius for the Respondent Gul
Mr N M Smith for the Respondent Ducram
Mr R Lallie for the Respondent Mattu
Mr C Jutla for the Respondent Ghalib
Mr J Anders for the Respondent Abdin
Mr P Brunt for the Respondent Hussain (Ifran)
Mr T Rashid for the Respondent Fedar
Mr S Kolodynski for the Respondent Mohammed
Mr S Rashid for the Respondent Officer
Mr S Wallace for the Respondent Smith
Mr S Reiz for the Respondent Mentore
Hearing date: 10 February 2016
The Solicitor General has referred to the court under s.36 of the Criminal Justice Act 1988, the sentences passed on 17 offenders by HH Judge Burbidge QC on 27 November 2015 (AG References 128–141 of 2015) and 22 January 2016 (AG References 8–10 of 2016). All the offenders had pleaded guilty or were convicted of conspiracy to transfer prohibited weapons and ammunition. We grant leave in respect of all the offenders.
Introduction
Lord Judge CJ in R v Wilkinson [2009] EWCA Crim 1925, [2010] 1 Cr App R (S) 100 summarised the gravity of gun crime:
"The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community."
Offences involving the possession or use of firearms have therefore attracted increasingly severe sentences:
i) In 1997 in R v Avis [1998] 1 Cr App R 420 this court gave guidance on the approach to sentencing for firearms offences under the Firearms Act 1968 (the 1968 Act). Lord Bingham CJ in giving the judgment of the court set out four questions the court should ask itself to assess the seriousness of the offence.
ii) With effect from January 2004, a mandatory minimum term of 5 years for possession of a firearm was enacted in s.51A of the 1968 Act (by s.287 of the Criminal Justice Act 2003).
iii) In 2009, in R v Wilkinson [2009] EWCA Crim 1925, [2010] 1 Cr App R (S) 100 this court gave further guidance as to the level of sentences principally in relation to offence under s.16 of the 1968 Act, possession with intent to endanger life, an offence that carried a maximum sentence of life imprisonment.
iv) At paragraph 26 of the judgment in Wilkinson the court observed that the sentence for importing firearms or being in possession with intent to supply should carry a maximum penalty of life imprisonment.
v) This observation was adopted when in 2014 Parliament through the Anti-Social Behaviour, Crime and Police Act 2014 amended s.5 of the 1968 Act by inserting a new section, s.5(2A), amending s.51 and amending Part 1 of Schedule 6. The effect of the amendments which came into force on 14 July 2014 was to provide for a new offence of transferring prohibited weapons and increase the maximum penalty to life imprisonment.
In these references and appeals we are concerned with:
i) A criminal enterprise of six persons that dealt in the supply of handguns and lethal ammunition manufactured for use in the guns supplied. This was charged as count 1 in the indictment.
ii) Those who on a specific occasion bought guns and lethal ammunition from the criminal enterprise. These occasions were the subject of counts 2, 3 4 and 6 of the indictment.
iii) Those who assisted in one of the specific transactions.
The judge sentenced them as follows:
i) The leader of the criminal enterprise, the armourer and the other 4 principals who were members of the enterprise (referred to by the judge as the key facilitators) and assisted in the transactions. The judge set the sentence he would have passed on the leader at 19 1/2 years (before the discount for plea) and passed on the others sentences of between 17 1/2 years and 11 years, before a discount for plea.
ii) Those who purchased guns and weapons on four specific occasions. The judge set the sentence he would have passed on the purchasers at between 11 and 7 1/2 years, before a discount for plea.
iii) Those who assisted the purchaser on those occasions. The judge set the sentence he would have passed at between 12 and 5 years (on those who assisted the purchasers) before a discount for plea.
In these references we did not reconsider the use of the statutory life sentence for crimes involving lethal weapons, whether under s.225 of the CJA 2003 or under provisions specifying a maximum sentence of life imprisonment (as summarised at paragraph 6(ii) of the judgment in R v Burinskas [2014] EWCA Crim 334, [2014] 1 WLR 4209). The judge was of the view that this was not an appropriate case for a sentence on the principal offender under s.225 of the CJA 2003, as he was not dangerous within the meaning of the CJA 2003 as there was no significant risk of him committing serious crimes in the future; he took the same view in relation to the other offenders. He did not consider whether a life sentence should have been imposed under other statutory provisions. We are, however, not persuaded that we should revisit the decisions not to impose a life sentence. Nonetheless, as was pointed out in Wilkinson at paragraph 27 (at a time where the court had available not only a sentence of life imprisonment but also a sentence of imprisonment for public protection), criminals who are prepared to deal in lethal weapons invariably represent a serious public danger and therefore a sentence of life imprisonment always arises for consideration and therefore must expressly be considered by the judge.
If a life sentence is not passed, as was made clear in Wilkinson, courts must impose long determinate sentences commensurate with the role played in any activity in relation to the supply of guns. Sentences must reflect the hierarchy of the supply enterprise, the role played in individual transactions and any previous convictions in relation to guns. In the present case our conclusions can be summarised as follows:
i) For the leader of the enterprise which was in the business of supplying guns and lethal ammunition, a very long determinate sentence was required. It appears to have been assumed (because the minimum term imposed on Wilkinson, the head of the enterprise in the case determined in 2009 who received a life sentence, was 11 years) that the maximum determinate sentence was 22 years for a large scale enterprise engaged in the supply of guns. No such maximum was indicated by this court in that case. In the present case, we consider that the appropriate sentence for the leader was 25 years, prior to discount for his plea. However, in the light of the mistaken view taken of Wilkinson, we must make clear that courts should not take this as a maximum. For example, a materially greater sentence would be appropriate if there was any previous conviction for offences involving guns. Nor can it make any difference that the criminal enterprise here was engaged in converting or acquiring guns rather than importing them; the same level of sentence is appropriate, as the essence of the criminality is the organisation of a criminal enterprise to supply guns and lethal ammunition to customers, irrespective of the source of the guns and ammunition. Those engaged in the criminal enterprise under the leader should have received sentences reflecting the sentence for the leader (before any discount for plea), depending on the role they played.
ii) In the case of those seeking to buy a gun and lethal ammunition from this criminal enterprise, we have proceeded on the basis that the purchaser must have required the gun and lethal ammunition to "kill and maim, terrorise or intimidate"; two of the customers were engaged in the supply of class A drugs. In our judgement the appropriate sentences for the purchasers in this case should have been in the region of 15 years, significantly higher sentences than that...
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