Attorney General's Reference No. 58 OF 2006

Possession in public of a loaded pistol intended to be made available for use calls for a significant deterrent sentence, irrespective of a statutory minimum term. The proper sentence must reflect the seriousness of the criminality even where the precise intended use of the weapon is unknown.

Credit for a guilty plea may reduce a sentence which properly exceeds the statutory minimum. Where that credit reduces the sentence to, but not below, the minimum, no issue of exceptional circumstances arises. A guilty plea is not, of itself, an exceptional circumstance permitting departure from a statutory minimum.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient sentences imposed at Maidstone Crown Court on 12 May 2006.

The two offenders had travelled together in a car carrying a working semi-automatic pistol. It was loaded with 15 rounds, with further ammunition in the bag containing it. Both had fingerprints on the pistol. One offender pleaded guilty; the other was convicted after trial.

The sentencing judge imposed five years’ imprisonment on the latter offender and three years nine months’ imprisonment on the offender who pleaded guilty, treating the guilty plea as an exceptional circumstance permitting a sentence below the statutory minimum. The central issues were the appropriate level of criminality and the effect of the plea of guilty.

1. Leave was granted and the reference succeeded. The sentences were unduly lenient. The offenders possessed a loaded pistol in public in circumstances in which it was intended to be made available for use. That conduct required significant deterrent sentences irrespective of the statutory minimum.

2. Although the precise purpose for which the pistol was being transported could not be known, the proper sentencing bracket for the offender convicted after trial was seven to eight years’ imprisonment. A five-year sentence materially understated the criminality. Applying the limited discretionary allowance for double jeopardy on an Attorney General’s reference, the court substituted seven years’ imprisonment.

3. The offender who pleaded guilty was entitled to appropriate credit. Starting from the seven-year sentence properly applicable to his co-offender, that credit justified a sentence of five years’ imprisonment. It did not require a sentence below the statutory minimum.

4. The court therefore did not decide whether the presence of two defendants could modify the principle stated in Jordan, Alleyne, Redfern [2005] 2 Crim.App.R(S) 44, that a guilty plea is not itself an exceptional circumstance. It observed, obiter, that the logic of that decision suggested that it could not.

5. The resulting sentences were seven years’ imprisonment for Finch and five years’ imprisonment for Richer.

• Court of Appeal (Criminal Division) In [2006] EWCA Crim 2827, the court granted the Attorney General leave under section 36 of the Criminal Justice Act 1988, held the sentences unduly lenient, and increased them to seven years for Finch and five years for Richer.
• Maidstone Crown Court On 12 May 2006, Judge Carey sentenced Finch to five years’ imprisonment and Richer to three years nine months’ imprisonment for the prohibited-firearm offence, with concurrent sentences for the ammunition offence.