R v Wilkinson and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
Judgment Date06 October 2009
Neutral Citation[2009] EWCA Crim 1925
Docket NumberCase No: 2008/05239/A2 (1) 2008/04738/C1 2008/02931/C1 2008/04650/C1 (2) 2008/00318/B1 2007/06235/B1 2007/06433/B1(3) 2009/02235/A2(4)

[2009] EWCA Crim 1925

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM (1) THE CROWN COURT AT READING

(2) THE CROWN COURT AT MANCHESTER

(3) THE CROWN COURT AT KINGSTON UPON THAMES

(4) THE CROWN COURT AT PRESTON

The Lord Chief Justice of England and Wales

Mr Justice Butterfield

Mr Justice Flaux

Her Honour Judge Smith

His Honour Judge Goldstone QC

His Honour Judge Mitchell

Her Honour Judge Badley

Case No: 2008/05239/A2 (1)

2008/05974/C1

2008/04738/C1

2008/02931/C1

2008/04650/C1 (2)

2008/00318/B1

2007/06235/B1

2007/06433/B1(3)

2009/02235/A2(4)

Between
R
and
Wilkinson (1)
R
and
Ali, Akhtar, Salim and Wilson (2)
R
and
Olawaiye, Farah and Ahmed (3)
Reference by HM Attorney General
R
and
Bennett (4)

Mr A Al-Yunusi for the Appellant (1)

Mr John Price QC for the Respondent (1)

Mr Mark Milliken-Smith QC, Mr Simon Csoka, Mr Christopher Daw and Mr Michael Morris for the Appellants (2)

Mr Nick Clarke QC and Mr Gary Woodhall for the Respondent (2)

Mr Richard Sutton QC and Mr Olajide Lanlehin for the Appellants (3)

Ms Caroline Haughey for the Respondent (3)

Mr Imran Shafi for the Appellant (4)

Mr Andrew Edis QC for the Respondent (4)

Hearing dates: 22 nd July 2009

The Lord Chief Justice of England and Wales:

1

The appeals of Wilkinson, Ali and others, and Olawaiye and others, involve gun crime, and the development of the guidelines in R v Avis and others [1998] 2 CAR (S) 128. Bennett is a Reference by the Attorney General involving a very grave sexual crime which, together with Wilkinson, requires the distinction between sentences of imprisonment for life and imprisonment for public protection in section 225 of the Criminal Justice Act 2003 (the 2003 Act) to be addressed.

Gun Crime

2

The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community.

3

The purposes of sentencing are identified in section 142 of the 2003 Act. None of these purposes is pre-eminent. All apply to every case, but as a matter of sentencing reality, whenever a gun is made available for use as well as when a gun is used public protection is the paramount consideration. Deterrent and punitive sentences are required and should be imposed.

4

Avis and others was decided in December 1997. Lord Bingham CJ offered guidance to sentencers about the levels of sentence which would be appropriate for a variety of offences taking account of the ambit of the Firearms Act 1968, as amended by the wide-ranging, then recent statutory provisions of the Criminal Justice and Public Order Act 1994. The structure of the judgment is familiar. In effect sentencing decisions arrived at before the 1994 Act came into force were confined to oblivion. It was suggested that by addressing a series of questions the sentencing court would provide itself with appropriate indications of the true extent of the defendant's culpability. For convenience we shall repeat them.

�(1) What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous then 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.

5. The value of this series of questions for use by the judiciary in the Crown Court is undiminished. That said, the broad guidance requires further amplification both in the light of subsequent legislation and also because the criminality considered in Avis and others did not address the level of criminality, taking the form of large scale importation and/or manufacture, sale and distribution of guns involved in two of the present appeals.

6

In relation to legislation, two developments need specific attention. First, section 51(A) of the Firearms Act 1968, as inserted by section 287 of the Criminal Justice Act 2003, provides for minimum sentences for a variety of firearms offences committed after 22 January 2004. It provides:

�This section applies where �

(a) An individual is convicted of

(i) An offence under s5(1)(a), (ab) (aba), (ac), (ad), (ae), (af) or (c) of the Act or

(ii) An offence under section 5(1A)(a) of this Act and

(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 circumstances relating to the offence or to the offender which justify it not doing so.��

7

The specified minimum terms are 5 years' imprisonment where the offender was 18 years or over at the date of conviction and, in accordance with section 289 of the Criminal Justice Act 2003, 3 years' detention under section 91(A) of the Powers of Criminal Courts (Sentencing) Act 2000 for an offender aged at least 16 but under 18 years.

8

These provisions do not arise directly for consideration in this judgment, and it would therefore be inappropriate to examine the circumstances which it may be appropriate to regard as exceptional for the purposes of imposing a shorter sentence than the prescribed minimum, save to emphasise that they must indeed be exceptional. It is nevertheless necessary to focus attention on the importance of these provisions and their intended impact for sentencing in cases involving gun crime even at a lower level of seriousness than those which arise in the present case. They confirm, if confirmation were needed, that possession of a firearm, without more, and without any aggravating features beyond the fact of such possession, is of itself a grave crime, and should be dealt with accordingly.

9

The second legislative development arises from Section 225 of the 2003 Act (as amended by the Criminal Justice and Immigration Act 2008) which applies where:

�(1)(a) A person aged 18 or over is convicted of a serious offence committed after the commencement of the section and

(b) The court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

(2) If

(a) The offence is one in respect of which the offender would apart from this section would be liable to imprisonment for life, and

(b) The court considers that the seriousness of the offence, or of the offence or one or more of the offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life.

(3) In a case not falling within sub-section (2), the court may impose a sentence of imprisonment for public protection if the condition in sub-section (3)(A) or the condition in sub-section (3)(B) is met.

We need not address the provisions which apply to offenders aged under 18 years.

10

The terms of section 225 direct attention to two further statutory provisions. Section 143 of the 2003 Act requires the court determining the seriousness of an offence to:

�(1)�consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.

(2)�the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to

(a) the nature of the offence to which the conviction relates and its relevance to the current offence, and

(b) the time that has elapsed since the conviction.

��

11

The second further statutory provision arises from section 305 of the 2003 Act which explains the meaning of �associated� in section 225(2)(b) by reference to section 161 of the Powers of Criminal Courts (Sentencing) Act 2000. This provides:

�(1) For the purposes of this Act an offence is associated with another if �

(a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence: or

(b) the offender admits the commission of it in the proceedings in which he is sentenced for the other...

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