Smith, R v

Where exceptional circumstances permit a sentence below the statutory minimum for possessing a prohibited firearm, the sentencing court must still impose a deterrent sentence proportionate to the offender’s culpability. A sentence is not manifestly excessive merely because the offender did not know with certainty that a firearm was present. It remains relevant that the offender knowingly dealt with persons who used guns and had reason to believe that a firearm might be present. The court must give proper weight to a timely guilty plea, mental illness, duress and the duration of possession, but an appellate court will not interfere where the sentencing judge has carefully evaluated those matters after a Newton hearing.

The appellant pleaded guilty at Inner London Crown Court to possessing a prohibited firearm. A locked suitcase found in a rented room contained a converted blank-firing pistol. He said that a drug creditor had required him to rent the room and had given him the suitcase, threatening him if he opened it.

After a Newton hearing, the Recorder found that the appellant did not know for certain that the suitcase contained a gun, but had reason to believe that it might contain contraband, including a firearm. The Recorder found exceptional circumstances permitting a sentence below the five-year minimum under Firearms Act 1968, section 51A, and imposed 30 months’ imprisonment. The appellant appealed on the ground that the sentence was manifestly excessive.

1. Appeal dismissed. The sentence of 30 months’ imprisonment was not manifestly excessive.
2. The Court accepted that the Recorder had given full credit for a guilty plea effectively entered at the first opportunity. His later failure to repeat that allowance did not undermine the sentence.
3. The Recorder’s observation about persons who deliberately avoid looking into containers did not disclose an error. It was either a general observation or reflected his supported findings that the appellant was not without blame, had reason to believe a gun might be present, and knew he was dealing with a gang which used guns.
4. R v Edwards [2007] 1 Cr App R (S) 111 was the closest comparator. Although there were factual distinctions in both directions, a sentence of 30 months did not materially differ from the two-year sentence imposed there.
5. The Recorder, who had conducted the Newton hearing, was well placed to calibrate culpability. He had carefully considered the appellant’s uncertain knowledge, mental condition, compliant personality, duress and short period of possession. In the statutory context requiring deterrent sentences for firearm possession, there was no basis for appellate intervention.

• Court of Appeal (Criminal Division): Appeal against sentence dismissed.
• Crown Court at Inner London: The appellant pleaded guilty on 1 October 2008 and was sentenced on 2 October 2008 to 30 months’ imprisonment for possession of a prohibited firearm. The Recorder found exceptional circumstances under section 51A of the Firearms Act 1968 and imposed a sentence below the otherwise applicable five-year minimum.