Davidson, R. v

Where the mandatory minimum sentence in section 51A of the Firearms Act 1968 applies, the court must impose the minimum term unless truly exceptional circumstances justify a different course. Exceptionality is assessed holistically and is fact-sensitive. A single striking feature, or the cumulative effect of several features, may exceptionally suffice; there is no checklist.

The threshold remains high. The offender’s age, the absence of evidence of actual use, the absence of a charger, and sympathy for the offender or family support will not ordinarily displace the statutory minimum. A disguised and charged stun device concealed in a vehicle and available for use, against a background of weapon-related offending, did not make a five-year term arbitrary or disproportionate.

The offender pleaded guilty in the Crown Court at Carlisle to possessing a disguised firearm contrary to section 5(1A)(a) of the Firearms Act 1968. The device was a functioning electronic stun device disguised as a mobile telephone. It was concealed in his car and was charged, although no charger was found.

He was also sentenced for theft and Class B drug offences. On the same evening he had displayed a knife while taking money, and a police-style baton was found concealed in the car. He had a previous conviction for threatening a person with a bladed article.

The Recorder imposed 12 months’ detention, suspended for two years, after finding exceptional circumstances. The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether the circumstances justified departing from the statutory minimum of five years’ detention.

1. The court gave leave on the Attorney General’s reference, held that the sentence was unduly lenient, quashed the suspended 12-month term, and substituted five years’ detention in a young offenders’ institution from the original sentencing date.

2. Section 51A of the Firearms Act 1968 required a minimum five-year custodial term for this offender unless exceptional circumstances relating to the offence or offender justified departure. The exceptional-circumstances inquiry is holistic and fact-sensitive. As explained in R v Rehman [2005] EWCA Crim 2056, a single striking feature or the collective impact of relevant features may be exceptional, but there is no prescribed checklist.

3. The Recorder was wrong to find exceptionality. The taser was disguised, charged, concealed in the offender’s car and readily available for use in a public place. A police-style baton was also concealed in the car. Earlier that evening the offender had used a knife to intimidate a person after taking money, and he had a relevant previous conviction while still subject to a youth rehabilitation order.

4. The offender’s age, the fact that the device was a taser rather than a conventional firearm, the absence of a charger, and the absence of evidence of actual use did not suffice. The statutory offence was one of possession. The court accepted the statutory analysis in R v Brereton [2012] 2 Cr App R (S) at 69: a disguised taser falls within the minimum-sentence regime.

5. Family support and sympathetic personal circumstances could not, without more, make the case exceptional. The word “exceptional” must not be diluted. The offender was ordered to surrender to custody at Carlisle police station by 5.30 pm that day.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court gave leave, held the sentence unduly lenient, and substituted five years’ detention in a young offenders’ institution.

• Crown Court at Carlisle: On 15 July 2016, the Recorder sentenced the offender to 12 months’ detention, suspended for two years, for possessing a disguised firearm. The Recorder found exceptional circumstances under section 51A of the Firearms Act 1968.