Hylands, R. v

For an automatic life sentence under section 109(5)(h) of the Powers of Criminal Courts (Sentencing) Act 2000, it must be established that the offender possessed a firearm during the robbery. That fact requires either an admission before the court or a specific jury verdict. It cannot be supplied solely by the sentencing judge’s finding, even where the evidence and the jury’s robbery verdict would support that finding.

This is a confined exception to the ordinary practice by which a trial judge may determine sentencing facts from the trial evidence or at a Newton hearing.

The appellant was convicted by a jury at Leeds Crown Court of a robbery committed with another man who carried and used a loaded sawn-off shotgun. The sentencing judge found that the appellant had jointly possessed the firearm and, because of an earlier conviction for robbery and wounding with intent, imposed life imprisonment under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000.

The indictment contained no firearm count. The appellant had denied participation in the robbery and therefore made no admission of possession. The issue on appeal was whether section 109(5)(h) could apply without an unequivocal admission or a specific jury verdict establishing possession of the firearm.

1. Appeal allowed. The life sentence was set aside and replaced with a determinate sentence of 14 years’ imprisonment.

2. Section 109(5)(h) treats robbery as a serious offence where the offender had a firearm in his possession during its commission. It does not create a separate offence of robbery with possession of a firearm. The court accepted that the evidence would have permitted a finding that the appellant jointly possessed the shotgun with his co-robber.

3. Nevertheless, the court was bound by Eubank, Murphy, and the approach explained in Benfield and Sobers. For section 109(5)(h) to apply, firearm possession must have been established by a specific jury verdict or unequivocally admitted before the court. A finding by the sentencing judge could not substitute for either requirement.

4. Neither condition was met. The jury found only that the appellant committed robbery. He denied being one of the robbers and made no admission of firearm possession. The mandatory life sentence was therefore unlawful, notwithstanding the strength of the evidence and the absence of any challenge to possession at trial or sentence.

5. The court emphasised that its conclusion was limited to section 109(5)(h) of the Powers of Criminal Courts (Sentencing) Act 2000. Ordinarily, a judge may sentence on facts found from trial evidence consistently with the verdict, or, after a plea, on facts determined at a Newton hearing.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted 14 years’ imprisonment for life imprisonment.
• Crown Court at Leeds: On 2 August 2002, following the jury’s conviction for robbery, HH Judge MacGill imposed life imprisonment under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000.