Gilman, R. v

In sentencing for possession of an imitation firearm with intent to cause fear of violence, the court must assess the circumstances of the threat, the offender’s conduct and personal mitigation. Immediate custody may be necessary where an imitation firearm is used to intimidate another person in anger, even if the weapon is incapable of causing serious harm and there was no intention to fire it.

The term must nevertheless be proportionate. Health, difficulty in coping with stress, the limited nature of relevant previous offending and the particular circumstances of the incident may justify a substantial reduction from an excessive custodial sentence.

The appellant pleaded guilty at Stoke-on-Trent Crown Court to possessing an imitation firearm with intent to cause fear of violence. He had confronted a group of boys playing football near his home, returned with a plastic pellet gun, and threatened one of them. He was sentenced to 18 months’ imprisonment.

He appealed with leave of the single judge. He relied on the type of weapon, his perceived history of anti-social behaviour by local youths, his health and stress-related difficulties, and the absence of previous firearm offending. The central issue was whether immediate custody and, in particular, an 18-month term were appropriate.

1. Appeal allowed. The sentence of 18 months’ imprisonment was set aside and replaced with one of nine months’ imprisonment.

2. The court upheld the judge’s conclusion that the offence required immediate custody. The appellant reacted with anger to youths playing football near his home, obtained an imitation firearm and used it to threaten a 16-year-old. His response was wholly disproportionate. The use of firearms, whether real or imitation, to frighten others or compel them to comply is dangerous conduct.

3. However, the sentencing assessment had to take account of the particular circumstances of the offence, the appellant’s conduct and his personal mitigation. The weapon was a plastic BB gun and was not capable of causing serious harm. The appellant maintained that he would not have fired it. His poor physical health and difficulty in coping with stress were material mitigation.

4. The appellant’s conditional discharge for threatening behaviour in 2000 was an aggravating feature. His other convictions did not establish a recent relevant pattern of offending that significantly aggravated the offence, and he had no previous firearm-related conviction.

5. The sentencing examples in Steele, Thompson and Poggiani turned on their own facts, but showed that a more lenient approach may be appropriate where an imitation firearm is used to cause fear without an intention to use it and without a serious criminal purpose. In all the circumstances, nine months was the proportionate custodial term.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted nine months’ imprisonment: [2006] EWCA Crim 273.
• Crown Court at Stoke-on-Trent: Following a guilty plea, imposed 18 months’ imprisonment on 25 October 2005.