Powell, R. v

For a disguised-firearm offence carrying a statutory five-year minimum term, the court must use the structured approach beginning with the four Avis questions and ending with whether the circumstances are exceptional. Circumstances are exceptional only where imposing the minimum would be arbitrary and disproportionate. The requirement is stringent. Sympathy for an offender cannot dilute it.

When consecutive sentences are justified for multiple serious offences, the sentencing court must nevertheless give proper effect to totality. An appellate court will not interfere where the overall sentence remains within the appropriate range and is not manifestly excessive.

The appellant pleaded guilty to dangerous driving, driving without a licence and driving without insurance. While on bail for those offences, he committed an assault occasioning actual bodily harm upon his former partner and possessed a taser disguised as a mobile telephone.

At Sheffield Crown Court, following a Newton hearing concerning the assault, he received five years’ imprisonment for possessing the disguised firearm and a consecutive sentence of one year and nine months for the assault. The total sentence was six years and nine months’ imprisonment.

He appealed against sentence. The issues were whether exceptional circumstances justified reducing the statutory minimum term for the firearm offence and whether the judge had given insufficient effect to totality.

1. Appeal dismissed. The court held that there were no exceptional circumstances capable of justifying a reduction below the five-year minimum term for possession of the disguised firearm.

2. The correct approach was the structured one identified in Withers [2015] 1 Cr App R (S) 64. It begins with the four questions in Avis [1998] 1 Cr App R (S) 420, concerning the firearm, its use, the intended use and the offender’s record. It then asks whether circumstances relating to the offence or offender are exceptional because the five-year term would be arbitrary and disproportionate.

3. The word exceptional must not be diluted. As underlined in Attorney General's Reference No 115 of 2015 [2016] EWCA Crim 765, sympathy cannot relieve a court of its statutory duty. The sentencing judge had applied the required approach. The disguised taser was capable of causing significant injury, had been deliberately acquired, was intended for use, and was possessed by an offender with relevant violent convictions. The decision in Beaman [2016] EWCA Crim 801 turned on its own facts and supplied no relevant principle requiring a different result.

4. The judge had also properly applied totality. Her two-year post-trial assessment of the assault already included a substantial reduction to reflect the consecutive five-year firearm sentence, and the dangerous-driving sentence was concurrent. In light of the seriousness and aggravating features of the assault, the overall sentence was within the appropriate range and was not manifestly excessive.

• Court of Appeal (Criminal Division): The appeal against the aggregate sentence of six years and nine months’ imprisonment was dismissed.

• Sheffield Crown Court: On 9 January 2015, following a Newton hearing, the appellant was sentenced to five years’ imprisonment for possessing a disguised firearm and a consecutive one year and nine months for assault occasioning actual bodily harm.

• Sheffield Magistrates' Court: On 18 March 2014, the appellant pleaded guilty to dangerous driving, driving without a licence and driving without insurance, and was committed to the Crown Court for sentence.