Attorney General Reference No 23 of 2009

For firearms offences carrying a statutory minimum sentence, departure is permitted only where circumstances are genuinely exceptional and justify it in light of Parliament’s deterrent and public-protection purpose. Positive character, community service, and an absence of intended criminal use do not meet that threshold. Rare and unusually severe family circumstances, including a child’s aggressive and potentially fatal illness causing exceptional strain, may justify a merciful departure from the minimum.

The offender pleaded guilty to firearms offences, including the planned importation of parts for a pistol and possession of unlawfully held firearms. Each offence carried a statutory minimum sentence of five years. At the Crown Court at Great Grimsby, the judge imposed a total of three years’ imprisonment after treating the offender’s good character, community service and lack of criminal purpose as exceptional circumstances.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. In this court, fresh medical evidence showed that one of the offender’s children had a severe and potentially fatal illness. The central issue was whether any circumstances justified departure from the statutory minimum.

1. The court granted the Attorney General leave to refer the sentence. It held that, on the material before the sentencing judge, the three-year sentence was unduly lenient. A five-year minimum sentence should have been imposed.

2. The statutory minimum for firearms offending implements Parliament’s policy of deterrence and strict control of firearms. Following Rehman and Wood [2005] EWCA Crim 2056, the policy applies even where the individual offender may not pose a future danger. Firearms may enter circulation and endanger the public. The court must therefore give the minimum-sentence policy particular weight.

3. The sentencing judge’s stated circumstances were incapable of being exceptional. The deliberate and planned importation of a pistol, possession of unlawfully held weapons, and especially a sawn-off shotgun were serious aggravating features. Good character, useful community activities and the absence of an intended criminal use could mitigate only within the statutory scheme; they could not justify departure from the minimum.

4. The court nevertheless accepted the fresh evidence concerning the offender’s seriously ill child as capable of constituting exceptional circumstances. The illness and its exceptional strain on the family were particular and unusual circumstances affecting this offender. Treating his request as a cross-notice for permission to appeal against the five-year sentence otherwise appropriate, the court exercised mercy but held that no reduction below three years was justified.

5. The sentence therefore remained three years’ imprisonment.

• Court of Appeal (Criminal Division) Granted leave under section 36 of the Criminal Justice Act 1988. It found that the original reasons did not amount to exceptional circumstances, but retained the three-year sentence because fresh evidence of a child’s severe illness was exceptional.

• Crown Court at Great Grimsby On 13 February 2009, His Honour Judge Reddihough imposed a total sentence of three years’ imprisonment for firearms offences carrying statutory five-year minimum sentences.