Munson, R. v

Under section 51A of the Firearms Act 1968, the five-year minimum sentence for possessing a firearm may be avoided only where the circumstances are truly exceptional. A single striking feature relating to the offence or offender may suffice, or the collective effect of relevant circumstances may do so. Ordinary mitigation remains distinct from exceptional circumstances.

An offender's initially innocent finding of a firearm does not itself make the case exceptional where the offender knows its criminal character, fails to surrender it, and leaves it with ammunition in an insecure place. The serious risk of criminal access to a working sawn-off shotgun supported the mandatory sentence.

The appellant appealed, with leave of the single judge, against the mandatory five-year sentence imposed by His Honour Judge Fenn for possession of a sawn-off shotgun and ammunition.

Following a Newton hearing directed by the judge, the sentencing basis accepted that the appellant had found the weapon in a plastic bag while walking a dog. Rather than take it to the police station as agreed with his companions, he left it, with thirteen cartridges, in an unsecured camper van at a friend's premises. The weapon and ammunition were capable of firing.

The appellant contended that the accepted factual basis established exceptional circumstances under section 51A(2) of the Firearms Act 1968. The issue was whether the judge had been wrong or unreasonable not to make that finding.

1. Appeal dismissed. The judge was entitled to impose the mandatory five-year sentence under section 51A of the Firearms Act 1968. The accepted facts did not amount to exceptional circumstances within subsection (2).
2. The judge had properly directed a Newton hearing to resolve the factual basis for sentence. That was a proper application of the guidance in R v Underwood [2005] 1 Cr App R (S) 90, even though the account was capable of appearing improbable.
3. Applying R v Rehman and others [2006] 1 Cr App R (S) 77, exceptional circumstances may arise from one striking feature relating to the offence or offender, or from the cumulative impact of relevant matters. The court accepted that the appellant's account of initially finding the gun was a potentially important feature. It nevertheless agreed with the judge that neither that feature nor the mitigation cumulatively met the statutory standard. Mitigation is not the same as exceptional circumstances.
4. Two matters were decisive. The appellant left a working sawn-off shotgun and live ammunition in circumstances creating a serious risk that they would reach the wrong hands. He also knew that the weapon was of a type adapted and particularly suitable for serious crime, and had declined the opportunity to take it to a nearby police station.
5. R v Harrison [2006] 2 Cr App R (S) 56 was materially different. There, the accepted account was that the offender was travelling to dispose of the weapon in a lake. Here, the appellant had instead left the weapon insecurely accessible. The harsh effect of the statutory minimum therefore provided no basis for allowing the appeal.

• Court of Appeal (Criminal Division): Appeal dismissed, affirming the mandatory five-year sentence: [2008] EWCA Crim 1258.
• Sentencing court: His Honour Judge Fenn imposed the five-year minimum sentence after a Newton hearing, having rejected the contention that exceptional circumstances existed.