Attorney-General's Reference No.35 of 2007

For sentencing offences involving an imitation firearm, the court should assess the nature of the weapon, how it was used, the offender’s intention, and the offender’s record. A realistic imitation can cause grave fear and intimidation even where it cannot be fired.

Where an offender deliberately uses such a weapon to threaten people in a public place, a non-custodial sentence may be unduly lenient. The sentencing court must nevertheless allow for personal mitigation and for double jeopardy when increasing a sentence that has already been partly served.

The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer, as unduly lenient, the sentence imposed on Mark John Hird at the Crown Court at Liverpool.

Hird had pleaded guilty to possessing an imitation firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968. After drinking and against a background of conflict with one intended victim, he took a realistic air pistol to a public house, pointed it at people and made threats to kill. The weapon was incomplete and incapable of firing, but appeared real to those present.

The Crown Court imposed a community order requiring 100 hours’ unpaid work. The central issue was whether that sentence was unduly lenient and, if so, what immediate custodial sentence should now be imposed.

1. The reference succeeded. The community order was unduly lenient. The Court imposed 12 months’ imprisonment, to run from the offender’s surrender at Leigh police station by midday on the following day.

2. The Court applied the sentencing approach described in Avis [1998] 1 Cr App R 420 and Attorney General’s Reference No 49 of 1999 (R v Hinchcliffe (Allen Patrick)) [2000] 1 Cr App R (S) 436. The relevant matters were the kind of weapon, its use, the offender’s intention and the offender’s record. An imitation firearm may create intense fear because victims cannot readily tell that it is not genuine.

3. Although the air pistol was incomplete and could not be fired, it was a realistic replica. The offender deliberately obtained it, took it into a public house, threatened the intended victim and others, and caused widespread fear among those present, including a woman with children. His limited record, employment, remorse, the background conflict and assessed risk of reoffending did not justify a community sentence.

4. The offence fell within the category in which a sentence below two years’ imprisonment would have been inappropriate at the original sentencing hearing. The Court nevertheless gave substantial weight to double jeopardy: the offender had been electronically tagged and had completed more than a quarter of the community order before facing immediate custody. Those matters justified a reduced sentence of 12 months’ imprisonment.

• Court of Appeal (Criminal Division)—on an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, granted leave and held the original sentence unduly lenient. It imposed 12 months’ imprisonment.
• Crown Court at Liverpool—Judge MacMillan sentenced the offender, following a guilty plea, to a community order requiring 100 hours’ unpaid work.