Phillips & Ors, R. v

A Court-Martial is not required to impose the statutory minimum custodial sentence prescribed for civilian firearms offenders. The civilian minimum remains a sensible starting point where imprisonment is under consideration, because the service legislation links the punishment for a civil offence to that available in a civilian court.

The Court-Martial must nevertheless make its own sentencing assessment. It must consider the individual circumstances and whether the service context aggravates or mitigates the offence. Firearms offences by service personnel commonly require substantial deterrent sentences because of the risk that weapons may enter the community. A sentence may be reduced below the civilian starting point without first finding statutory exceptional circumstances.

Four service personnel appealed sentences imposed by Court-Martial. Phillips and Pleasant had been convicted of possessing prohibited firearms obtained through a chain of weapons smuggled from Iraq. Whitfield had been convicted of acts tending and intended to pervert the course of public justice after concealing Phillips's pistol. McEneany had been convicted of possessing a prohibited firearm found in his barrack room.

Each Court-Martial had proceeded on the basis that a five-year minimum sentence applied under the civilian firearms legislation. The common issue was whether that minimum bound a Court-Martial and, if not, what weight it should carry in sentencing service personnel. McEneany also relied on substantial evidence of post-traumatic stress disorder and serious domestic stress.

1. The appeals of Phillips, Whitfield and Pleasant were dismissed. McEneany's appeal was allowed and his sentence was reduced to three years and six months' imprisonment.

2. Section 305 of the Criminal Justice Act 2003 excludes a service court from the meaning of a court for the civilian mandatory-minimum provision. Accordingly, a Court-Martial was not obliged by section 51A of the Fire Arms Act 1968 to impose the five-year minimum. Each Court-Martial had therefore misdirected itself.

3. That error did not mean that the civilian minimum was irrelevant. Under sections 70 and 71 of the Army Act 1955, the punishment available for a corresponding civil offence, and the availability of distinct service punishments, made the civilian sentence a sensible starting point where imprisonment was contemplated. The Court-Martial had to decide whether the individual circumstances, including the service context, justified mitigation or aggravation from that starting point.

4. Firearms offences committed by service personnel require substantial deterrent sentences. Service personnel may have relatively ready access to firearms, and unlawfully possessed weapons may enter the community. Phillips and Pleasant were involved at the end of a profitable chain of smuggling lethal weapons from Iraq. Their sentences were not manifestly excessive. Whitfield's sentence was also proper; the circumstances of Marlow, who received six months' detention, could justify the difference and disclosed no impermissible disparity.

5. McEneany's case was materially different. The Court-Martial had expressed sympathy but treated a departure from five years as available only on proof of exceptional circumstances. Properly directed, it could have departed from the civilian starting point in light of his significant post-traumatic stress disorder, impaired thought processes and personal circumstances. The appropriate sentence was three years and six months' imprisonment.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 1735, dismissed the sentence appeals of Phillips, Whitfield and Pleasant, but allowed McEneany's appeal and substituted three years and six months' imprisonment.
• Court-Martial: Sentenced all four appellants after proceeding on the basis that the civilian five-year mandatory minimum applied to their offences.