Lashari, R v

Where an offender’s account concerns the circumstances of the offence and is disputed by the prosecution, it is not extraneous mitigation. The prosecution must disprove that account to the criminal standard before a sentencing court may reject it.

A sentencing error on that issue does not require a reduced sentence where, even on the offender’s account, the circumstances as a whole are not exceptional for the purpose of the mandatory minimum sentence under the Firearms Act 1968.

The appellant pleaded guilty at the Crown Court at Wood Green to possessing a prohibited firearm. He received the five-year minimum term applicable to an adult under section 51A of the Firearms Act 1968.

He said that he had found the gun in a supermarket car park, placed it in his car because he panicked, and later failed to report it. The sentencing judge rejected that account and found no exceptional circumstances. On appeal, the appellant challenged the burden and standard of proof applied to that factual dispute and relied on the weapon’s low energy as further mitigation.

1. Appeal dismissed. Although the sentencing judge misdirected himself on the proof of the appellant’s account, the five-year sentence remained correct because no exceptional circumstances arose even if that account were accepted or might have been true.
2. Section 51A(2) of the Firearms Act 1968 required a minimum five-year term unless exceptional circumstances relating to the offence or offender justified a lesser sentence. The appellate court would not readily interfere with a sentencing judge’s conclusion on exceptional circumstances unless it was clearly wrong, following R v Rehman and Wood [2005] EWCA Crim 2056.
3. The appellant’s explanation of how he acquired and retained the firearm concerned the offence itself. It was therefore not extraneous mitigation. The civil burden applicable to extraneous mitigation, described in R v Guppy and Marsh [1995] 16 Cr App R(S) 25, did not apply.
4. Following the approach in R v Ahmed (Nabil) [1985] 80 Cr App R 295, the judge had to accept the appellant’s account unless the Crown proved to the criminal standard that it was untrue. The judge instead appeared to require the defence to establish its truth on the civil standard and thus erred in law.
5. That error was immaterial to the outcome. The appellant had deliberately placed and retained a prohibited gun in his car. Taking the facts overall, this did not amount to exceptional circumstances. The firearm’s energy level did not alter that assessment.

• Court of Appeal (Criminal Division): Dismissed the appeal against sentence, while holding that the sentencing judge had applied the wrong burden and standard of proof to the disputed account.
• Crown Court at Wood Green: Following a guilty plea, imposed five years’ imprisonment for possession of a prohibited firearm.