R v Avis and Others

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE
Judgment Date16 December 1997
Judgment citation (vLex)[1997] EWCA Crim J1216-6
CourtCourt of Appeal (Criminal Division)
Docket NumberNo. 97/1090/Z4, 97/5153/W4 97/7066/X5, 97/6116/Z2
Date16 December 1997
Regina
and
Tony Avis
Richard Bartgerald John Thomas Richard Edward Torrington Shaun Marquez Harold Egan Goldsmith

[1997] EWCA Crim J1216-6

Before:

the Lord Chief Justice of England

(Lord Bingham of Cornhill)

Mr Justice Douglas Brown

and

Mr Justice Kay

No. 97/1090/Z4, 97/5153/W4

97/2898/W3, 97/3090/Y4

97/7066/X5, 97/6116/Z2

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

MR RODERICK M T PRICE appeared on behalf of THE APPELLANT AVIS

MR RICHARD THATCHER appeared on behalf of THE APPELLANT BARTON

MR JOHN LLOYD-JONES appeared on behalf of THE APPELLANT THOMAS

MR ANTHONY J BRIGDEN appeared on behalf of THE APPLICANT TORRINGTON

MR SIMON TIERNEY appeared on behalf of THE APPLICANT MARQUEZ

MR DAVID L BRADSHAW appeared on behalf of THE APPLICANT GOLDSMITH

MR NICHOLAS HILLIARD appeared as AMICUS CURIAE

1

Tuesday 16 December 1997

THE LORD CHIEF JUSTICE
2

These six appellants and applicants have been convicted, on their own admission or the verdict of a jury, of various offences against the Firearms Act 1968 as amended. The appeals have been listed and heard together in order that the level of sentence for these and some kindred firearms offences may be reviewed. This review has been prompted by three considerations:

(1) In several recent cases this court has criticised the sentences imposed or upheld in previous cases as inadequately reflecting the gravity of such offences: see, for example, R v Ecclestone (1995) 16 Cr App R(S)9 at 11; R v Francis (1995) 16 Cr App R(S)95 at 98; and R v Clarke [1997] 1 Cr App R (S )323 at 324.

(2) Parliament has recently increased the maximum term of imprisonment which may be imposed for certain of these offences in the Criminal Justice and Public Order Act 1994.

(3) The Criminal Statistics for England and Wales published by the Home Office for 1996 show that, while the number of those convicted of some firearms offences has not increased between 1991 and 1996, the number convicted of other firearms offences has very sharply increased. Those convicted on indictment of possessing firearms with intent to endanger life have risen from 33 in 1991 to 207 in 1996. Those convicted of possessing or distributing prohibited weapons or ammunition have risen from 212 in 1991 to 1002 in 1996. This accords with the subjective impression formed by a number of judges that cases involving the use of firearms come before them much more frequently than was once the case, particularly in some parts of the country.

3

The unlawful possession and use of firearms is generally recognised as a grave source of danger to society. The reasons are obvious. Firearms may be used to take life or cause serious injury. They are used to further the commission of other serious crimes. Often the victims will be those charged with the enforcement of the law or the protection of persons or property. In the conflicts which occur between competing criminal gangs, often related to the supply of drugs, the use and possession of firearms provoke an escalating spiral of violence.

4

Where imitation firearms are involved, the risk to life and limb is absent, but such weapons can be and often are used to frighten and intimidate victims in order to reinforce unlawful demands. Such imitation weapons are often very hard to distinguish from the real thing—for practical purposes, impossible in the circumstances in which they are used—and the victim is usually as much frightened and intimidated as if a genuine firearm had been used. Such victims are often isolated and vulnerable.

5

Sometimes the firearm involved, although genuine, has been disabled from firing, or cannot be fired for want of ammunition. In such cases again the risk to life and limb is absent, but the risk of use to frighten or intimidate remains, and the weapon may be used in earnest on another occasion.

6

The appropriate level of sentence for a firearms offence, as for any other offence, will depend on all the facts and circumstances relevant to the offence and the offender, and it would be wrong for this court to seek to prescribe unduly restrictive sentencing guidelines. It will, however, usually be appropriate for the sentencing court to ask itself a series of questions:

(1) What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use.

(2) What (if any) use has been made of the firearm? It is necessary for the court, as with any other offence, to take account of all circumstances surrounding any use made of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence is likely to be.

(3) With what intention (if any) did the defendant possess or use the firearm? Generally speaking, the most serious offences under the Act are those which require proof of a specific criminal intent (to endanger life, to cause fear of violence, to resist arrest, to commit an indictable offence). The more serious the act intended, the more serious the offence.

(4) What is the defendant's record? The seriousness of any firearm offence is inevitably increased if the offender has an established record of committing firearms offences or crimes of violence.

7

The 1968 Act as amended lays down a hierarchy of offences, some (but by no means all) of which it is appropriate briefly to mention:

(1) By section 1(1) of the 1968 Act it is an offence to possess, purchase or acquire a firearm or ammunition without a certificate. By the 1994 Act the maximum term of imprisonment on indictment was increased from 3 years' to 5. The offence is triable either way. In R v Khan (1986) 8 Cr App R(S) 334 the defendant was sentenced to 6 months' imprisonment for possession of a firearm and ammunition without a certificate, such sentence to be consecutive to a longer sentence for another firearms offence. On appeal, the 6 month sentence was made concurrent. In R v Kent [1996] 2 Cr App R (S) 381 the defendant was sentenced to 12 months' imprisonment for possession of a firearm without a certificate. This sentence was to be served concurrently with a longer sentence for other and more serious firearms offences, and does not appear to have been challenged on appeal. In R v Horn [1997] 2 Cr App R(S) 172, the defendant pleaded guilty to possessing a firearm without a certificate, possessing ammunition without a certificate and possessing a prohibited weapon, a CS gas cylinder. He was sentenced to 12 months' imprisonment for unlawful possession of the firearm, with shorter concurrent terms for possession of the ammunition and the CS gas cylinder. This court endorsed the observation of the trial judge that an immediate custodial sentence was appropriate for the possession of a loaded gun, but reduced the effective sentence to one of six months' imprisonment. The defendant was a German tourist of good character who had brought these articles from Germany where (it appeared) no authority was required for their possession.

(2) By section 2(1) of the 1968 Act it is an offence to possess, purchase or acquire a shotgun without a certificate. The maximum term of imprisonment on indictment was increased by the 1994 Act from 3 years' to 5. The offence is triable either way.

(3) By section 21(4) of the 1968 Act it is an offence to possess a firearm or ammunition as a prohibited person. The maximum term of imprisonment on indictment was increased by the 1994 Act from 3 years' to 5. The offence is triable either way. In R v Cresswell (1986) 8 Cr App R(S) 29 a defendant who pleaded guilty to an offence against this subsection was sentenced to a concurrent term of 2 years', which was upheld by this court. In R v Yates (1994) 15 Cr App R(S) 400 the defendant was sentenced to 2 years' imprisonment on pleading guilty to this offence. While interfering with other sentences imposed for other firearms offences, this court did not disturb that sentence. Nor did it in R v Kent, above, where the defendant pleaded guilty to an offence under this subsection, and the sentence was concurrent with other longer sentences for other firearms offences.

(4) By section 3 of the 1968 Act it is an offence to trade in firearms without being registered as a firearms dealer and to sell firearms to a person without a certificate. The maximum term of imprisonment on conviction on indictment was increased from 3 years' to 5 by the 1994 Act. An offence against the section is triable either way.

(5) By section 4 of the 1968 Act it is an offence to shorten the barrel of a shotgun, to convert certain items into a firearm and to commit an offence under section 1(1) of the Act in the aggravated form set out in section 4(4), by possessing, purchasing or acquiring a shortened shotgun or converted firearm. The maximum term of imprisonment on conviction on indictment was increased from 5 years' to 7 by the 1994 Act. The offence is triable either way.

We have been referred to seven recent cases under this section, in each of which the defendant pleaded guilty:

R v Cresswell (1986) 8 Cr App R(S) 29, in which a sentence of 4 years' imprisonment was upheld.

R v Kennedy (1988) 10 Cr App R(S) 398 in which a sentence of 3 years' imprisonment was upheld.

R v Smith (1989) 11 Cr App R(S) 55 in which a 2 year concurrent sentence was upheld (although other sentences were reduced).

R v Yates (1994) 15 Cr App R(S) 400 in which a sentence of 5 years' was reduced to 4, to allow some discount from the maximum on a plea...

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