Downs, R. v

In sentencing for exceptionally serious firearms offending, the court must have sufficient information about an offender’s personal circumstances before fixing the appropriate term. Where a defendant has profound learning difficulties, neurological illness and unusual vulnerability to pressure, those matters may materially affect culpability and the practical impact of imprisonment.

A sentence which would ordinarily be appropriate for the gravity of the offending may therefore be excessive if imposed without proper consideration of those exceptional circumstances. The appellate court may reduce the term while recognising the extreme seriousness of the weapons and ammunition involved.

The applicant was convicted of conspiracy to possess a firearm with intent to endanger life after police found a Mach 11 submachine gun, ammunition and related equipment at the flat in which he lived. He also pleaded guilty to conspiracy to sell or transfer ammunition and to possessing the prohibited weapon.

The sentencing judge imposed concurrent sentences, with an overall term of 11 years’ imprisonment. On appeal against sentence, the applicant relied on a pre-appeal report which described serious effects of childhood injury and a later head injury, including epilepsy, learning difficulties, slow thought processes and increased difficulties in prison.

The central issue was whether the judge had sentenced him without adequate information about exceptional personal vulnerabilities and the effect of custody upon him.

1. Appeal allowed. The court quashed the overall sentence of 11 years’ imprisonment and substituted a sentence of nine years’ imprisonment, less 331 days spent on remand.
2. The criminality was exceptionally grave. The submachine gun, live ammunition and dum dum bullets were highly dangerous, and possession of the gun had no apparent explanation other than an intention to endanger life. An 11-year total sentence would ordinarily have been appropriate, even for an offender with no previous convictions; it might even have been higher.
3. However, this was a wholly exceptional case. The sentencing judge should have obtained fuller information before sentence. The applicant had not given evidence at trial, and the judge had neither the benefit of counsel who had conducted the defence nor a report setting out the applicant’s substantial disabilities and background.
4. The pre-appeal report showed that childhood injury and a later stabbing had caused serious emotional and practical difficulties. The applicant had a speech impediment, learning difficulties, slow thought processes and epilepsy requiring medication. He was vulnerable to pressure or firm invitations to become involved in the offending, despite there being no defence of duress.
5. Those circumstances bore both on the proper assessment of the offending in his case and on the impact of a long custodial term. His seizures had increased in prison, and imprisonment affected him more severely than it would an ordinary prisoner. Had the judge received that information, he would have been better placed to determine sentence. The just sentence was therefore nine years’ imprisonment.

• Court of Appeal (Criminal Division) Allowed the appeal against sentence and substituted nine years’ imprisonment.
• First-instance court The applicant was convicted of conspiracy to possess a firearm with intent to endanger life and sentenced to 11 years’ imprisonment overall. He received concurrent sentences for conspiracy to sell or transfer ammunition and possession of the prohibited weapon. The citation is not stated in the judgment.