HM Advocate v McGovern
| Jurisdiction | Scotland |
| Judgment Date | 16 March 2007 |
| Neutral Citation | [2007] HCJAC 21 |
| Date | 16 March 2007 |
| Docket Number | No 20 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Nimmo Smith, Lord Philip, Lord MacLean
Procedure - Solemn procedure - Sentence - Appeal - Appeal against sentence by Crown - Whether sentence unduly lenient - Whether exceptional circumstances justifying lesser sentence than statutory minimum - Pannel pleading guilty to charges of breach of the peace involving repeated discharge of handgun or similar and contraventions of the Firearms Act - Pannel admonished on one of the firearms charges and sentenced concurrently on the other charges to three years imprisonment and an extension period of two years - Firearms Act 1968 (cap 27), sec 51A - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 108
The Firearms Act 1968, as amended, provides by sec 51A, inter alia, that where an individual aged 21 years or over at the time of the offence is convicted under sec 5(1), the court shall impose a minimum custodial sentence of five years.
The Criminal Procedure (Scotland) Act 1995 provides by sec 108,inter alia, that the Lord Advocate may appeal against a sentence passed on conviction on the ground that the disposal was unduly lenient.
The respondent pled guilty to charges on indictment of breach of the peace by repeated discharge of a handgun or similar instrument and two counts of unlawful possession of a firearm contrary to sections of the Firearms Act 1968, including sec 51A. He had some 46 previous convictions, three on indictment for a variety of offences including violence and dishonesty. He had previously been convicted of charges of assault on his partner, the complainer in charge 1, of the charges to which he had now pled guilty. An agreed Crown narrative was provided to the sentencing judge, along with a social inquiry report, and information to the effect that the appellant had obtained the gun to assist a journalist by providing him with information on obtention of illegal weapons. The plea in mitigation emphasised the respondent's contrition and co-operation with the police. The sentencing judge imposed an extended sentence of five years in respect of the first charge, the custodial part being three years and the extension period two years. The judge imposed an extended sentence of five years in the same terms in respect of the sec 51A charge and made the sentences on these charges concurrent. The judge admonished the respondent on the other firearms charge. The sentences imposed were made concurrent and backdated to the date on which the respondent first appeared on petition.
The Crown submitted that the sentencing judge had erred in holding that exceptional circumstances existed justifying an imposition of any other than the minimum sentence. The trial judge had erred in his calculation of the discount to be applied in respect of the guilty plea and in ordering that the sentences imposed on the two charges run concurrently.
Senior counsel for the respondent argued that the sentencing judge had correctly held that exceptional circumstances existed. The respondent had volunteered information to the police leading to recovery of the firearm and had pled guilty.
Held that: (1) Parliament in enacting sec 51A of the Firearms Act intended that for the protection of the public against the dangers arising from the unlawful possession of firearms, considerations of retribution and deterrence should be given greater emphasis, and the personal circumstances of the offender less emphasis, than would normally be the case in sentencing (para 11); (2) the aggravating features far outweighed the mitigating features of the case such that the circumstances taken as a whole were not exceptional (para 32); (3) the making of concurrent sentences and admonition on a serious charge also made the disposal unduly lenient (para 33); and appealallowed and sentences quashed.
James McGovern was charged on indictment at the instance of the Right Honourable Colin David Boyd QC, Her Majesty's Advocate, with charges of breach of the peace, assault and offences relating to firearms. He pled guilty in the High Court of Justiciary at Paisley to three of the charges and thereafter sentenced.
The Lord Advocate appealed to the High Court of Justiciary against the sentences imposed.
Cases referred to:
Du Plooy v HM AdvocateUNK 2005 1 JC 1; 2003 SLT 1237; 2003 SCCR 640
Evans v RUNKUNK [2005] EWCA Crim 1811; [2006] 1 Cr App R (S) 64; [2005] Crim LR 876
R v BlackallUNKUNK [2005] EWCA Crim 1128; [2006] 1 Cr App R (S) 22; [2005] Crim LR 875
R v Jordan, Alleyne and RedfernUNKUNK [2004] EWCA Crim 3291; [2005] 2 Cr App R (S) 44; [2005] Crim LR 312
R v McEneaneyUNKUNK [2005] EWCA Crim 431; [2005] Cr App R (S) 86; [2005] Crim LR 579
R v MehmetUNK [2005] EWHC Crim 2074; [2006] 1 Cr App R (S) 75; [2005] Crim LR 877
R v Rehman and WoodUNKUNK [2005] EWCA Crim 2056; [2006] 1 Cr App R (S) 77; [2005] Crim LR 878
Textbooks etc. referred to:
News of the World, 29 October 2000
At advising, on 16 March 2007, the opinion of the Court was delivered by Lord Nimmo Smith-
Opinion of the Court-
[1] This is a Crown Appeal against the sentences passed on the respondent at the High Court in Paisley on 5 October 2006. The respondent pled guilty to a charge of breach of the peace involving the repeated discharge of a handgun or similar instrument, and two charges of contraventions of the Firearms Act 1968 ('the Firearms Act'). The sentencing judge admonished the respondent on one of the firearms charges, and sentenced him to concurrent extended sentences on the breach of the peace charge and the other firearms charge, the sentences each comprising a custodial term of three years and an extension period of two years. The Lord Advocate has now appealed against these sentences in terms of sec 108 of the Criminal Procedure (Scotland) Act 1995 ('the 1995 Act'), alleging that the sentences were unduly lenient and that the sentencing judge erred in law in his approach to the relevant statutory provisions.
[2] The respondent originally faced six charges in an indictment. The Crown accepted his pleas of not guilty to charges 2, 5 and 6. The charges to which he pled guilty were in the following terms:
'(1) On 18 June 2005 at Earl Street, Glasgow, you did conduct yourself in a disorderly manner, shout and swear, repeatedly discharge a handgun or similar instrument at the window of the house occupied by Sandra Dunlop at 116 Earl Street, Glasgow, place the lieges in a state of fear and alarm and commit a breach of the peace; …
(3) Between 10 March 2006 and 16 May 2006, both dates inclusive, at Flat 2/1, 116 Earl Street and at the cycle path near to Balmoral Street, both Glasgow, you did have in your possession a firearm to which section 1 of the Act aftermentioned applies, namely a handgun without holding a firearm certificate in force at the time and you did commit this offence in an aggravated form within the meaning of section 4(4) of said Act, said firearm having been converted from an imitation firearm which though had the appearance of being a firearm had been so constructed as to be incapable of discharging any missile through its barrel: CONTRARY to the Firearms Act 1968, Section 1(1)(a) and 4(4) as amended by the Firearms (Amendment) Act 1988 [(cap 45)];
(4) Between 10 March 2006 and 16 May 2006, both dates inclusive, at Flat 2/1, 116 Earl Street and at the cycle path near to Balmoral Street, both Glasgow, you did have in your possession without the authority of the Secretary of State or Scottish Ministers, a prohibited weapon, namely a handgun being a firearm with a barrel less than 30 centimetres in length and which had a length of less than 60 centimetres overall; CONTRARY to the Firearms Act 1968, Section 5(1)(aba) as amended by the Firearms (Amendment) Act 1997 [(cap 5)]'.
[3] The offence of breach of the peace in charge 1 was an offence at common law in respect of which the maximum sentence that the High Court may impose in solemn proceedings is life imprisonment, and there is no minimum sentence.
[4] The offence in charge 3 was a contravention of the following provisions. Section 1 of the Firearms Act (as amended) provides, so far as material:
'(1) … it is an offence for a person-
-
(a) to have in his possession, or to purchase or to acquire, a firearm to which this section applies without holding a firearms certificate in force at the time or otherwise than as authorised by such a certificate'.
By subsec (3) the section applies to every firearm, with certain exceptions which do not arise in the present case. Section 4 provides by subsec (3) that it is an offence for a person other than a registered firearms dealer to convert into a firearm anything which, though having the appearance of being a firearm, is so constructed as to be incapable of discharging any missile through its barrel. Subsection (4) provides,inter alia:
'A person who commits an offence under section 1 of this Act by having in his possession or purchasing or acquiring … a firearm which has been converted as mentioned in subsection (3) above (whether by a registered firearms dealer or not), without holding a firearm certificate authorising him to have it in his possession, or to purchase or acquire it, shall be treated for the purposes of provisions of this Act relating to the punishment of offences as committing that offence in an aggravated form.'
By Pt 1 of sch 6 to the Firearms Act (as amended), the maximum sentence for this offence, the offence having been committed in an aggravated form within the meaning of sec 4(4), and the respondent having been prosecuted on indictment, was imprisonment for seven years, or a fine, or both. There was no statutory minimum sentence.
[5] The offence in charge 4 was a contravention of the following provisions of the Firearms Act (as amended):
'(1) A person commits an offence if, without the authority of the Secretary of State or the...
To continue reading
Request your trial
-
McMahon v HM Advocate
...[2021] HCJAC 14 Lord Menzies and Lord TurnbullNo 20 McMahon and HM Advocate Cases referred to: Advocate (HM) v McGovern [2007] HCJAC 21; 2007 JC 145; 2007 SLT 331; 2007 SCCR 173 Harkin v Brown [2012] HCJAC 100; 2012 SLT 1071; 2012 SCCR 617; 2012 SCL 923 Justiciary — Sentence — Discount for ......
-
Appeal Against Sentence By Henry Morton Against Her Majesty's Advocate
...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 case......
-
Appeal Against Sentence By Niall Brian Dinsmore Against Her Majesty's Advocate
...and by friends, family and his employer. [11] The sentencing judge considered relevant Scottish authorities namely HMA v McGovern 2007 JC 145, Lowe v HMA 2008 SCCR 760 and Cochrane v HMA 2011 SCL 176. He had regard also to a number of cases from the English jurisdiction namely: R v Zakir Re......
-
Robert Lowe V. Her Majesty's Advocate
...by Lord Nimmo Smith, distilling the essence of several English cases and delivering the Opinion of the Court, in HM Advocate v McGovern 2007 JC 145. He said (para 11): "In enacting sec 51A of the Firearms Act, Parliament intended, that, for the protection of the public against the dangers a......