Hahn & Anor, Re reference by the Attorney General Rev 1

Where an offender possesses or uses a firearm or imitation firearm while committing another offence, a consecutive sentence for the firearms offence should ordinarily be used to mark its additional gravity. The sentencing court must nevertheless apply totality and fix a proportionate overall term.

A concurrent firearms sentence does not make the sentence unduly lenient where the principal sentence already properly reflects the firearm-related criminality. This may occur in a robbery where the weapon supplies the violence or threat of violence constituting the offence. The allocation of sentence between counts cannot displace a sound assessment of the enterprise’s overall seriousness.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the sentences imposed at Bristol Crown Court on Lee Hahn and Peter Webster.

Both offenders participated in two robberies committed shortly after a motor vehicle had been taken. An imitation firearm was used and threats to shoot were made during the second robbery. Hahn pleaded guilty and received eight years’ imprisonment. Webster was convicted after trial and received nine years’ imprisonment.

The Attorney General contended that the firearms sentences should have been consecutive to the robbery sentences. The central issue was whether the concurrent sentences showed that the overall terms were unduly lenient.

1. The Attorney General’s application was refused. Per Potter LJ, giving the judgment of the court, the overall terms of eight and nine years were not unduly lenient.

2. The court reaffirmed that possession or use of a firearm during another offence should ordinarily be marked by a consecutive sentence. That technique reflects Parliament’s intention that firearms possession is an aggravating feature. The rule is, however, subject to the principle of totality: the court must determine a proper overall term, rather than mechanically add the sentences for each count.

3. A concurrent firearms sentence remains permissible where the principal sentence already reflects the gravity of carrying the weapon. This is especially so where, in a robbery, the possession or use of the firearm is the violence or threat of violence integral to the offence. The more compelling case for a consecutive sentence is where the firearm is an additional aggravating feature of an offence whose essence does not involve its use, such as criminal damage or drug dealing.

4. The sentencing judge had fashioned the terms with totality in mind. The imitation gun and threats were the essence of the robberies and were already reflected in the robbery sentences. The court also regarded the fact that the weapon was an imitation as relevant to sentencing seriousness, even though the victims believed it to be real. Consecutive firearms sentences would have produced excessive overall terms.

• Court of Appeal (Criminal Division): On Attorney-General references under section 36 of the Criminal Justice Act 1988, refused to interfere with the sentences: [2003] EWCA Crim 3089.
• Bristol Crown Court: On 26 February 2003, sentenced Lee Hahn to eight years’ imprisonment and Peter Webster to nine years’ imprisonment for the robbery and related offences.