Brereton, R v

A sentence for possessing a disguised firearm which attracts the statutory minimum under Firearms Act 1968 should not be reduced to the sentence that might have followed had the prosecution proceeded on a lesser charge. That course requires a demonstrated arbitrary charging policy.

Where exceptional, case-specific procedural history has justified a reduction below the minimum, the appellate court will assess its practical effect. A reduction which corrects the adverse effect of separate earlier sentencing, and already gives a practical advantage, may be sufficient. The court confined its treatment of exceptional circumstances to the particular facts and stated that it was not a precedent for the statutory exceptionality inquiry.

Police found in Matthew Brereton’s home a stun gun disguised as a mobile telephone. He pleaded guilty at Sheffield Crown Court to possessing a disguised firearm and received four years’ imprisonment, below the statutory five-year minimum.

Before that sentence, the Magistrates’ Court had sentenced him for associated offending. The prosecution had also repeatedly changed its position between a lesser firearms offence and the greater disguised-firearm offence. The sentencing judge treated that procedural history as exceptional circumstances relating to the offender and reduced the minimum term by one year.

Brereton appealed against sentence. He submitted that it should instead be reduced to the level which would have followed had he been prosecuted only for the lesser offence. The central issue was whether the history warranted a further reduction.

1. Appeal dismissed. The court upheld the four-year sentence for possession of a stun gun disguised as a mobile telephone, contrary to Firearms Act 1968, section 5(1A)(a).

2. Section 51A required a custodial term of at least five years unless exceptional circumstances relating to the offence or offender justified a lesser term. The sentencing judge had found no exceptional circumstances relating to the offence, but had treated the prosecution’s changes of position and the earlier separate sentencing as exceptional circumstances relating to the offender.

3. The Court of Appeal did not disturb that conclusion because both parties accepted it. It stressed, however, that the case was confined to its facts and should not be cited as a precedent on the application of the statutory exceptionality test.

4. The one-year reduction had effectively corrected the practical disadvantage caused by the earlier Magistrates’ Court sentence. Had all offences been dealt with together, concurrent sentences were likely and the appellant would have received the five-year minimum. The sentence imposed already gave him some practical advantage over that position, and sufficiently reflected the prosecution’s vacillation.

5. It would not be right to reduce the sentence to the level applicable to the lesser firearms offence without a prosecution policy demonstrated to be arbitrary. The court nevertheless observed that a coherent and published charging policy for disguised stun guns would assist consistency in sentencing, particularly where one charging choice triggers a statutory minimum.

• Court of Appeal (Criminal Division) — dismissed Brereton’s appeal against sentence: [2012] EWCA Crim 85.

• Crown Court at Sheffield — His Honour Judge Kelson QC sentenced Brereton to four years’ imprisonment for possession of a disguised firearm after finding exceptional circumstances relating to the offender.