Herbert & Anor, R v

Where separate firearm conspiracies together constitute a single criminal enterprise, concurrent sentences may be appropriate if they adequately mark the offender’s culpability. But where the seriousness and range of the separately charged components exceed the maximum sentence for any one offence viewed alone, the sentencer should impose consecutive sentences to reflect the overall criminality.

A late guilty plea in the face of strong evidence does not ordinarily justify full credit. A sentencing judge is not bound by an unagreed basis of plea and may assess culpability from the available evidence. A Newton inquiry is unnecessary where assertions merely seek to minimise the overall effect of the prosecution evidence without contradicting it.

The Attorney General referred, under section 36 of the Criminal Justice Act 1988, sentences imposed on Stephen Ronald Herbert and Gary Colin Beard as unduly lenient. Each had pleaded guilty on the first day of trial to three statutory conspiracies: manufacturing prohibited weapons, selling or transferring them, and possessing firearms with intent to enable others to cause fear or violence.

The offenders had operated a large-scale enterprise converting blank-firing handguns into lethal prohibited weapons and distributing them to criminals. The judge imposed concurrent six-year terms on each count, after taking nine years as the pre-plea starting point and giving full credit for the late pleas. The central issue was whether concurrent terms adequately reflected the overall seriousness of the distinct conspiracies.

1. The reference was granted and the sentences were increased. The concurrent six-year terms were unduly lenient. A total of nine years’ imprisonment was substituted for each offender, comprising three consecutive terms of three years.
2. The judge had been entitled to regard the manufacture, sale and possession conspiracies as parts of one course of conduct. Concurrent sentences can properly mark culpability in such a case. However, consecutive sentences are required where the seriousness and range of the separately indicted components, viewed overall, call for a sentence higher than the maximum available for any one component alone.
3. The evidence showed a massive gun-manufacturing and distribution operation intended to equip criminals with firearms capable of terrifying, maiming or killing victims. That overall criminality required a total starting point of about 15 years for each offender. The court reduced it to nine years to honour the judge’s promise of full credit for the guilty pleas and to allow for the double jeopardy inherent in an Attorney General’s reference.
4. The late pleas, tendered after 15 months and on the first day of trial despite strong evidence, did not in themselves warrant full credit. The judge’s promise nevertheless had to be honoured. Nor was he bound by the offenders’ bases of plea. A Newton inquiry was not required because their assertions did not contradict the prosecution evidence; they merely sought to minimise its overall effect by matters of detail.
5. R v Avis [1998] 2 Cr App R(S) 178 supported the need for very high sentences for serious firearms offending. Its sentencing considerations reinforced the court’s conclusion on totality and consecutive sentences.

• Court of Appeal (Criminal Division): Attorney General’s reference under section 36 of the Criminal Justice Act 1988 granted. The court substituted a total of nine years’ imprisonment for each offender.
• Central Criminal Court: His Honour Judge Paget QC imposed concurrent terms of six years’ imprisonment on each of three conspiracy counts.