McDonnell, R v

Possession of a prohibited CS canister is inherently serious and ordinarily merits an immediate custodial sentence, even for a mature offender of previous good character. Sentencing must nevertheless reflect the factual basis on which the offender is sentenced. Where possession is not connected with drug dealing or other criminal use, a starting point of 12 months’ imprisonment may be manifestly excessive. Earlier sentencing comparisons must be treated cautiously where they no longer reflect the current seriousness of the weapon, but a three-month term was insufficient for the danger posed by a CS canister.

The appellant was convicted at Wood Green Crown Court of possessing a prohibited weapon, namely a CS canister, and was sentenced to nine months’ imprisonment. He was also fined for possession of controlled drugs for personal use. The trial judge did not find that the canister was possessed in connection with the drugs.

The judge accepted that the canister was kept with machete-type weapons as protection against an unlawful invasion of the appellant’s home. The appellant, aged 49, had no previous convictions and continued to suffer from an arm injury sustained on arrest. He appealed against sentence on the ground that a 12-month starting point was manifestly excessive.

1. The appeal was allowed to a limited extent. The sentence for possession of the prohibited CS canister was reduced from nine months’ to six months’ imprisonment.

2. The court accepted that possession of a prohibited weapon such as a CS canister is always serious. Its potential availability to persons intending more serious crime made custody appropriate, notwithstanding the appellant’s age and previous good character.

3. However, the sentencing judge had expressly declined to connect the canister with the appellant’s drug possession. The sentence therefore had to be assessed on the accepted basis that it was retained, with other weapons, for defence against an anticipated unlawful invasion of the home. A starting point of 12 months’ imprisonment was manifestly excessive on that basis.

4. The court treated R v Horn [1997] 2 Cr App R(S) 172, concerning possession of a CS gas cylinder in a car, as no longer an up-to-date comparator. It regarded R v Palmer [2001] EWCA Crim 928 as more relevant because it involved circumstances not dissimilar to the present case, but held that the three-month sentence imposed there was too low given the danger of the weapon.

5. The appellant’s lack of previous offending and the particular impact of imprisonment, including the continuing effects of his injury and his work as a builder, did not displace the need for custody. They supported a term below that imposed by the Crown Court.

• Court of Appeal (Criminal Division): Allowed the appeal to a limited extent and substituted a sentence of six months’ imprisonment.
• Wood Green Crown Court: Following conviction on 6 October 2009 for possession of a prohibited CS canister, imposed nine months’ imprisonment.