Attorney Generals Ref 45 of 2008

Where a mandatory minimum sentence may be displaced only by exceptional circumstances, the court must assess all relevant circumstances holistically. A single striking feature may suffice, or the combined effect of several factors may do so. An appellate court should not readily interfere with the sentencing court’s assessment unless it is clearly wrong.

However, an offender’s youth and immaturity, and possession of a firearm for personal protection, do not necessarily constitute exceptional circumstances, whether considered separately or together. Serious possession of a loaded prohibited firearm, particularly by an offender with relevant convictions, requires a substantial custodial sentence.

The offender, aged 16, pleaded guilty to possessing a prohibited handgun and ammunition contrary to the Firearms Act 1968. Police found a converted blank-firing pistol, containing a projectile capable of causing lethal injury, concealed beneath floorboards at his home. The offender said that he had received it for protection after an armed attack on his family.

The sentencing judge treated the offender’s age, immaturity and explanation for possession as exceptional circumstances. He imposed concurrent 12-month detention and training orders. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The issue was whether those circumstances justified departure from the applicable three-year minimum term.

1. The reference was allowed. The court granted leave, quashed the concurrent 12-month detention and training orders, and substituted three years’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.

2. The court followed the holistic approach in R v Rehman and another [2006] 1 Cr App R(S) 77. Exceptional circumstances may arise from one striking feature concerning the offence or offender, or from the collective effect of all relevant circumstances. The appellate court should not readily interfere with the sentencing judge’s assessment unless that assessment is clearly wrong.

3. The sentencing judge was clearly wrong to find exceptional circumstances. Youth and immaturity did not suffice. Nor did the offender’s claimed wish to protect himself and his family by keeping the firearm. Those factors remained insufficient when assessed together, consistently with R v Lucas [2007] 2 Cr App R(S) 81 and R v Blackall [2006] 1 Cr App R(S) 22.

4. The offences were very serious. The weapon was a loaded prohibited firearm capable of causing lethal injury. The offender had previous convictions involving violence and weapons, committed the offence while on police bail, and was assessed as posing a high risk of reoffending and serious harm. Firearm offending by young people in urban areas required substantial sentences.

5. The court allowed for the guilty plea, time spent on remand and the double-jeopardy element inherent in an Attorney General’s reference. Although a sentence above the minimum, probably four years or more, would have been expected at first instance, three years was the appropriate substituted term.

• Court of Appeal (Criminal Division): On the Solicitor General’s reference, the court granted leave, held the sentence unduly lenient, quashed the 12-month concurrent detention and training orders, and substituted three years’ detention.
• Sentencing court: On 13 June 2008, the offender received concurrent 12-month detention and training orders after the judge found exceptional circumstances. The sentencing court is not otherwise identified in the judgment.