Appeal Against Sentence By Henry Morton Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Turnbull |
| Neutral Citation | [2017] HCJAC 21 |
| Docket Number | HCA/2016 |
| Date | 12 April 2017 |
| Published date | 12 April 2017 |
| Court | High Court of Justiciary |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 21
HCA/2016/000649/XC
Lord Brodie
Lord Turnbull
OPINION OF THE COURT
delivered by LORD TURNBULL
in
APPEAL AGAINST SENTENCE
by
HENRY MORTON
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: A Ogg (sol adv); McCusker McElroy & Gallanagh, Paisley
Respondent: M Hughes, AD; Crown Agent
12 April 2017
[1] The appellant Henry Morton is 37 years old. On 16 September 2014 he returned from holiday in Bulgaria to Glasgow Airport, where he was found to have two stun guns disguised as mobile telephones within his luggage.
[2] On 29 June 2016, at the High Court in Edinburgh, he pled guilty to two charges under the Firearms Act 1968. The first was a contravention of section 5(1A)(a), relating to possession of a firearm disguised as another object, namely the two stun guns, and the second was a contravention of section 1(1)(a) of the Act, possession of firearms without being the holder of a certificate.
[3] Section 51A of the Firearms Act requires the court to impose a minimum sentence of 5 years’ imprisonment for a contravention of section 5(1A)(a) of the Act, “unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it in not doing so”. Having heard a proof in mitigation at which the appellant, his former partner, two psychologists and a forensic firearms examiner all gave evidence, the presiding judge was not so satisfied and imposed a sentence of 5 years’ imprisonment. He imposed a concurrent sentence of 21 months’ imprisonment on the remaining charge.
[4] The appellant was granted leave to appeal against sentence on a ground which argued that the judge had erred in determining that there were no exceptional circumstances such as would permit him to impose a sentence of less than the minimum term.
The Circumstances Of The Case
[5] The appellant had holidayed in Bulgaria on his own. Whilst there he purchased two stun guns which were on open sale in a supermarket. There was a picture of the stun gun on each of the boxes in which they were contained and a woman employee at the supermarket was testing them. He knew what he was purchasing. Each was disguised to look like a mobile telephone.
[6] Whilst in Bulgaria the appellant posted a film on Facebook of himself holding one of the stun guns and demonstrating it operating. He then said: “You fuck with me you get tasered son … and that’s the truth!”
[7] He also posted an entry to say that he was in Bulgaria and was going to bring back stun guns into the UK and try to sell them for £300 each. An analysis of his telephone showed that he had sent a number of messages about the stun guns, one of which said: “Watch this I will end up in a Bulgaria jail”
[8] Having been taken into detention at Glasgow Airport the appellant was interviewed. In the course of that exchange he told the officers that he thought each of the two items was a genuine iPhone and said that he had not tried or inspected either of them. After a lengthy discussion about the price and the Bulgarian exchange-rate, he appeared to agree that he had paid around £450 for the two items. He denied knowing that the items were stun guns.
[9] In his evidence during the proof in mitigation the appellant said that he had been drinking a lot of the time whilst on holiday as the price of alcohol was very low. He said he was drunk when he posted the video and couldn’t remember much about it. He give evidence that he had no intention of using the stun guns to cause harm and that he thought it would be all right to bring them back to this country because they were on open sale in Bulgaria. He did not know what he would have done with them had he not been stopped but he did not intend to sell them on. It was only when he saw a sign at Glasgow Airport saying that such items were illegal that he realised they could not be brought into this country. He then became frightened and that was why he lied to the police about what he thought the items were during his interview.
The Appellant’s Personal Circumstances
[10] The appellant had been in a relationship with Donna Simpson until about seven years prior to the offence. They had four children together, now aged 16, 15, 12 and 10. The oldest two boys attended special schools, one because of autism and the other because of learning disabilities. The accused was actively involved in the care of his children and they stayed with him each weekend from Friday through to Sunday.
Intellectual Functioning
[11] The evidence of the two psychologists established that the appellant’s overall cognitive functioning was within the extremely low range, meaning that he struggled to cope with his emotional difficulties and had a tendency to act impulsively. The ability to evaluate and fully consider the consequences of his actions in advance had been a lifelong difficulty for him but he was unlikely to be suffering from a major mental disorder which would have impaired his decision making or his judgement. He posed a low risk of serious harm to others. He was able to understand the police caution.
The Trial Judge’s Decision
[12] The trial judge took account of the cases of R v Rehman and Wood [2005] EWCA Crim 2056, Evans v The Queen [2005] EWCA Crim 1811, HM Advocate v McGovern 2007 HCJAC 21, Cochrane v HM Advocate [2010] HCJAC 117 and R v Ramzan (Rouf Mohammed) [2013] 2 Cr App R (S) 33. Applying the guidance drawn from these cases he explained that he considered all the circumstances of the case and took a holistic approach. He stated that the feature which distinguished the appellant’s case, and in particular what distinguished it from the case of Cochrane, was the appellant’s knowledge that what he was doing was wrong. He took the view that the appellant’s previous conviction for an air gun offence had very slight significance and gave it very little weight. He took account of the appellant’s caring duties for his children and his good relationship with them but he considered that these features did not outweigh the other factors in considering the issue of “exceptional circumstances”.
[13] In conclusion, the sentencing judge took the view that the appellant’s personal circumstances did not permit him to depart from the minimum term set down by Parliament. In relation to the circumstances of the offence, he observed that the appellant was planning to bring the guns into the United Kingdom with the intention of trying to sell them for £300 each. When stopped at Glasgow Airport he falsely claimed that the telephones were genuine and that he had not tried them out. The judge concluded that the appellant was well aware that what he was doing was wrong. Again there was no exceptionality demonstrated such as would permit him to depart from the minimum term.
Submissions For The Appellant
[14] In presenting her submissions on behalf of the appellant Ms Ogg relied on the cases which had been before the sentencing judge and the further cases of Attorney General’s Reference (No 82 of 2012) [2013] 2 Cr App R (S) 64, R v Stoker [2014] 1 Cr App R (S) 47, R v Zhekov [2014] 1 Cr App R (S) 69, R v Sayer [2014] EWCA Crim 2197, R v Withers [2015] 1 Cr App R (S) 64, R v Peng Zhao [2016] EWCA Crim 1210 and Dinsmore v HM Advocate [2017] HCJAC 11, all of which were offered as examples of different situations in which exceptional circumstances had, or had not, been found to be present.
[15] Ms Ogg also referred to the case of R v Avis & Ors [1998] 2 Cr App R (S) 178 which she submitted was helpful. That case set out what had come to be referred to as the four Avis questions in subsequent English decisions concerning firearms. The questions were:
1. What sort of weapon was involved?
2. What use had been made of the firearm?
3. With what intention (if any) did the defendant possess or use the firearm?
4. What was the defendant’s record?
[16] It was submitted that the answers to these four questions would be important in the assessment of sentencing in any firearms case and that they could also assist in determining whether exceptionality was present in any given case. By way of example, the answer to the first Avis question in the...
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Director of Public Prosecution's Reference (Number 6 of 2019) - Ian David Price
...i) This holistic approach, which also has regard to the policy of the legislation was adopted in Morton (Henry) v HM Advocate [2017] HCJAC 21. In that case the court stated that in “order to identify exceptional circumstances for the purposes of the legislation it is important to have regar......