Appeal Against Sentence By Niall Brian Dinsmore Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lady Clark Of Calton |
| Neutral Citation | [2017] HCJAC 11 |
| Year | 2017 |
| Docket Number | HCA/2016 |
| Published date | 24 February 2017 |
| Court | High Court of Justiciary |
| Date | 24 February 2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 11
HCA/2016/000596/XC
Lady Clark of Calton
Lord Turnbull
OPINION OF THE COURT
delivered by LADY CLARK OF CALTON
in
APPEAL AGAINST SENTENCE
by
NIALL BRIAN DINSMORE
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: M Mackenzie; George More & Co LLP
Respondent: M Hughes, AD; Crown Agent
24 February 2017
Summary
[1] The appellant (born October 1988) pled guilty on indictment in the High Court of Justiciary at Glasgow, of a number of offences including a charge of firearms disguised as other objects, namely five stun guns disguised as torches contrary to the Firearms Act 1968 (the 1968 Act), section 5(1A)(a). Said offence is subject to the sentence provisions set out in section 51A of the 1968 Act which provides that the court is required to impose
“...an appropriate custodial sentence ... for a term of at least the required minimum term ... unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.” (Section 51A(2)).
The required minimum term is defined in section 51A(5)(b) as 5 years in a case of an offender who was aged 21 or over when he committed the offence.
[2] The main issue in the appeal is whether the sentencing judge erred in holding that there were no “exceptional circumstances” which in terms of the statutory provisions would justify the court in not imposing a sentence of at least the minimum term of 5 years in respect of charge 2. Counsel for the appellant submitted that the judge had erred and that the sentence in respect of charge 2 was excessive. The sentences in respect of charges 4 and 5 were not challenged.
The Offences and Sentences
[3] The appellant was indicted on six charges and at a Preliminary Hearing on 28 September 2016 pled guilty to the undernoted charges as amended:
“(002) on 31 August 2015 at Edinburgh International Airport, Edinburgh, you NIALL BRIAN DINSMORE did have in your possession, without the authority of the Secretary of State or the Scottish Ministers, firearms which were disguised as other objects, namely five stun guns disguised as torches: CONTRARY to the Firearms Act 1968, Section 5(1A)(a) as amended;
(004) on 31 August 2015 at Edinburgh international Airport, Edinburgh, you NIALL BRIAN DINSMORE did have in your possession firearms, namely stun-guns, to which section 1 of the aftermentioned Act applies without holding a firearms certificate in force at the time: CONTRARY to Section 1(1)(a) of the Firearms Act 1968;
(005) on 31 August 2015 at Edinburgh international Airport, Edinburgh, you NIALL BRIAN DINSMORE did without reasonable excuse or lawful authority, have with you offensive weapons, namely five truncheons: CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 47(1) as amended;”
[4] At an adjourned diet on 25 October 2016, the solicitor advocate explained that he did not seek to lead the appellant in a proof in mitigation but made submissions that there were exceptional circumstances which would justify the court in not imposing a term of imprisonment of at least 5 years. The sentencing judge was not so persuaded. He sentenced the appellant to 5 years imprisonment on charge 2, 18 months imprisonment in respect of charge 4 (discounted from 2 years) and 6 months imprisonment in respect of charge 5 (discounted from 8 months). He ordered that the sentences run concurrently from the date of sentence.
The Agreed Narrative of Facts
[5] The sentencing judge set out in detail in his report the relevant parts of the agreed narrative which we summarise. The appellant and his girlfriend arrived by plane at Edinburgh International Airport where they were stopped by a Border Force officer. In response to questions the appellant accepted that he had a taser and baton. Before the baggage from the plane was searched, he admitted to having five tasers and five batons. The appellant, when interviewed under caution, admitted buying five stun‑guns and five extendable batons at a supermarket in Bulgaria when he was holiday with his girlfriend. He stated that he thought the stun‑guns may be classed as dangerous but later said that he did not think they were dangerous. He thought he would get a “slap on the wrist” if caught with them. He accepted he might be doing wrong by importing the weapons but did not appreciate how serious an offence he was committing. He said he bought the items as gifts as they were unusual. He did not know what effect a stun‑gun might have but thought it might give a shock and maybe knock a person to the floor. He had tried one of the stun‑guns in the shop and saw that it sparked and crackled. He stated that he did not know if the items could be purchased in the United Kingdom. He was aware that he had to flick the batons to make them extend. He thought the batons could maybe be purchased in a fishing tackle or hunting shop. He cooperated by identifying the suitcases and the guns and batons purchased by him. He attributed his conduct to stupidity. He was arrested and charged.
[6] There was a detailed report of the firearms examination which described the devices and concluded that
“The devices were all in good external condition and in working order, with an audible and visible display of sparks occurring between the electrodes and the torch illuminating when activated.”
[7] The five truncheons or batons were described in the report as of
“...black steel construction and measured 200mm (8 inches). They have a telescopic function which when utilised and fully extended measures 500mm (20 inches). The truncheons are gravity operated and to extend it the user would simply use a flicking motion with their hand. To close it the user would hit it vertically onto a stone floor or concrete.”
[8] The appellant did not hold a firearms certificate in terms of the 1968 Act.
Submissions to the Sentencing Judge
[9] The report by the sentencing judge narrated the submissions which were made to justify a finding of exceptional circumstances. In summary the submission was to this effect:
“The appellant had fully cooperated with the police and pled guilty. He had the stun‑guns in his possession for only a short time. He did not understand that the items were firearms. They were non-lethal. There was a lack of criminal intent vis-à-vis their use. His personal circumstances were in his favour. While he had previous convictions they were all for road traffic offences. He was of good character, in employment with a good work history. He had recently discovered he was the father of a child and was attempting to establish a relationship with her. ...He had been assessed as suitable for an alternative to custody.”
[10] The sentencing judge also had regard to the report of the Parole Board for Northern Ireland and he concluded from references submitted that the appellant was well regarded in the community and by friends, family and his employer.
[11] The...
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