R v Graham Stoker
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 03 July 2013 |
| Neutral Citation | [2013] EWCA Crim 1431 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 201300934 A3 |
| Date | 03 July 2013 |
[2013] EWCA Crim 1431
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Aikens
Mr Justice Irwin
Mr Justice Cranston
No: 201300934 A3
Mr B Hegarty appeared on behalf of the Applicant
This is a renewed application for leave to appeal against sentence by Graham Stoker, who is now 47, following refusal of leave by the single judge, who did, however, grant the necessary extension of time.
On 10th December 2012, in the Crown Court at Newcastle-upon-Tyne, the appellant (as we will call him) pleaded guilty, and on 18th January 2013 the appellant was sentenced by Mr Recorder Williams for the following offences: on count 1, for possessing a disguised firearm contrary to section 5(1A)(a) of the Firearms Act 1968, imprisonment for five years; on counts 2, 3 and 4, for the offences of possessing a prohibited weapon contrary to section 5(1)(b) of the Firearms Act 1968, the appellant was sentenced to two years' imprisonment on each count concurrent and concurrent with count 1. Count 2 alleged possession of a prohibited weapon contrary to section 5(1)(b) of the Firearms Act 1968. Counts 3 and 4 alleged possession of a pepper spray contrary to section 5(1)(b).
Originally this case was listed before us today as a non-counsel renewal application. We asked that counsel should appear, if at all possible, and we made a representation order because we found this a troubling case. We grant the necessary leave and we are extremely grateful to Mr Brian Hegarty, who has appeared at such short notice on behalf of the appellant. We are very grateful to him for his succinct and clear written advice and for the oral submissions that he has made to us today.
We can take the facts from Mr Hegarty's advice. On 26th January 2012 police officers from Northumbria Police attended the home address of the appellant in order to execute a search warrant obtained under section 46 of the Firearms Act 1968. On arriving at the appellant's house, they encountered the appellant outside his address. The officers informed him that they had been granted a warrant as they believed that he was in possession of a stun gun. The appellant immediately accepted that he had such an item and he showed the officers to a wardrobe in his bedroom and told them that the item in question was in one of the pockets of a jacket. The officers then recovered from the jacket within the wardrobe a stun gun disguised as a mobile phone. Officers also seized a pepper spray from within a pouch that was found in a drawer of a bedside cabinet. A further pepper spray was also found in the same place. That pepper spray was attached to a key-ring.
The officers also found at the same address an item described as a "battery operated taser". That was found in a locked metal box on top of a wardrobe. That item reflected count 2 on the indictment. That item was subsequently found to be defective because of an unidentified electrical fault.
The appellant was arrested and interviewed by the police. He told them that the items in question belonged to him and that he had ordered them over the internet many years earlier. He told the police that he believed that they had come by the information that they had concerning the items from a relative of his wife, with whom he had fallen out over an employment issue and whom he suspected of carrying on a campaign of harassment again him.
Mr Hegarty accepted in oral submissions before us this morning that these items had been kept by the appellant for a number of years and that they had moved with him from house to house.
When Judge Evans took the plea on 10th December 2012, he did so on a basis of plea document which had been prepared beforehand. That basis of plea was accepted by the prosecution and was also accepted expressly by the sentencing judge. The basis of plea is as follows:
"1. The defendant accepts possession of all items specified in each count of the Indictment. He will say that they were purchased by him over the internet and that he did not know they were illegal.
2. With regard to item JWJ/3, the defendant will say that this item was purchased by him many years ago via the internet. He believes that on the day it was seized it could not be operated as the self contained battery had run flat. He did not have a charger for the item and one was never provided. He accepts that subject to it being recharged it was fully operational."
The reference to JWJ/3 is to the disguised stun gun.
A PSR was provided before sentencing. That was positive. It reported that the appellant had a stable home life, with reasonably settled work, although he had been laid off recently. It stated that the events had been a salutary lesson and that the appellant was very remorseful. The writer considered that the risk of repetition or of the appellant committing any offence which might cause serious harm to the public was low. It recommended, if possible, a 12 month suspended sentence order with 200 hours of unpaid work.
However, the PSR did not specifically take account of the statutory provisions of the Firearms Act 1968, as amended. The relevant provisions are as follows:
" 5 Weapons subject to general prohibition
(1) A person commits an offence if, without the authority of the Defence Council or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), he has in his possession, or purchases or acquires, or manufactures, sells or transfers …
…
(b) any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing …
…
(1A) Subject to section 5A of this Act, a person commits an offence if, without the authority of the Secretary of State or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998, he has in his possession, or purchases or acquires, or sells or transfers —
(a) any firearm which is disguised as another object …
…
51A Minimum sentence for certain offences under s.5
(1) This section applies where —
(a) an individual is convicted of —
(i) an offence under section 5(1)(a)…
(ii)an offence under section 5(1A)(a) of this Act …
…
(b) the offence was committed after the commencement of this section and at a time when he was aged 16 or over.
…
(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional...
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