Attorney Generals Ref No. 23 of 2008

In a reference for an unduly lenient sentence, a sentence which is plainly lenient should not be increased unless it crosses the threshold of undue leniency. In firearm cases, the sentencing assessment should address the nature and condition of the weapon, its use, the offender’s intended use, and relevant antecedents.

A loaded weapon discharged in public is a serious aggravating feature. However, the court must sentence on the accepted basis of plea. A momentary discharge intended to frighten, rather than an intention to shoot or injure, may materially reduce the seriousness of possession with intent to endanger life.

The offender pleaded guilty at Manchester Crown Court to possessing a prohibited weapon and to possessing a firearm with intent to endanger life, contrary to the Firearms Act 1968. He had fired one shot from a loaded revolver while being pursued by a police officer, but the shot was not fired directly at the officer.

The Recorder accepted the basis of plea that the offender had intended to frighten rather than kill or injure. He imposed concurrent sentences of five years’ imprisonment and recommended deportation. The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the accepted facts and mitigation meant that the lenient sentence nevertheless fell short of the intervention threshold.

1. The reference was dismissed and the sentence was not disturbed. The court granted leave under section 36 of the Criminal Justice Act 1988, but held that the five-year concurrent sentence, although undoubtedly lenient, was not unduly lenient.

2. The court applied the sentencing guidance in R v Avis [1998] 1 Cr App R 420. A sentencing court should consider the type and condition of the weapon, the use made of it, the offender’s intended use, and the offender’s record. A genuine loaded firearm which is discharged is highly serious, and its use in a public place is aggravating.

3. Nevertheless, the court had to proceed on the basis of plea accepted by both the prosecution and the Recorder. The critical feature was that the offender did not possess the firearm intending to shoot other people. His intent was a momentary use intended to frighten the pursuing officer. Although that conduct created a risk to life and justified the plea to the section 16 offence, it was materially less serious than the usual case involving an intended shooting.

4. The court accepted that a ten-year starting point could properly reflect the loaded firearm and its discharge. It also accepted that a guilty plea and the offender’s good character, absence of previous convictions, abandonment of the weapon, and frank interview could reduce that figure substantially. On the particular facts, the resulting five-year sentence did not call for appellate intervention.

• Court of Appeal (Criminal Division): Leave was granted under section 36 of the Criminal Justice Act 1988, but the reference was dismissed and the Crown Court sentence was left undisturbed.

• Crown Court at Manchester: On 8 April 2008, the Recorder imposed concurrent terms of five years’ imprisonment following guilty pleas, and recommended deportation.