Mason, R. v

When sentencing for using a firearm with intent to resist or prevent lawful arrest, the court must assess the weapon’s type, its use, the offender’s intention and criminal antecedents. It must also take account of aggravating and mitigating circumstances, including related offending and any guilty plea.

An extended sentence under Criminal Justice Act 2003, section 226A requires a properly evidenced finding that the offender presents a significant risk of serious harm through further specified offences. A finding may rest on the index conduct, previous offending, risk assessments and unresolved substance misuse.

The appellant pleaded guilty in the Crown Court at Merthyr Tydfil to two offences of using a firearm with intent to resist or prevent lawful arrest, affray and criminal damage. During a five-hour siege while affected by diazepam and cocaine, he threatened officers, aimed two air rifles and caused substantial damage to the flat and a police vehicle.

The judge imposed concurrent extended sentences of seven years for the firearms offences, comprising four years’ custody and a three-year licence extension, and activated a suspended sentence concurrently. The appellant contended that the custodial term was manifestly excessive and that the statutory finding of dangerousness under the Criminal Justice Act 2003 was unsupported.

1. Appeal dismissed. The four-year custodial term, following full credit for the early guilty plea, was neither manifestly excessive nor otherwise wrong.
2. In accordance with Avis [1998] 1 Cr App R 420, the sentencing judge was required to consider the type of weapon, its use, the offender’s intention and criminal antecedents. The Court held that those matters had been considered. The air rifles were less formidable than other firearms, one was ineffective, neither was loaded and neither was discharged. However, the appellant had threatened to shoot officers, aimed the rifles at them and others, and dry-fired one during a prolonged, drug-fuelled siege.
3. The judge was also entitled to treat the extensive damage, the risk created by throwing heavy objects from the flat, and offending during the operational period of a suspended sentence as aggravating features. He had considered the appellant’s mitigation, including his mental health, early plea and earlier period without convictions. The resulting sentence was not out of kilter with reported firearms cases.
4. The statutory dangerousness finding was upheld. Under section 229 of the Criminal Justice Act 2003, the question was whether there was a significant risk of serious harm from further specified offences. The judge could rely on the index conduct, the appellant’s previous knife-point attempted robbery, the pre-sentence assessment, post-detention violence, and severe alcohol and drug misuse. The absence of injury during this incident and encouraging recent engagement with treatment did not make the conclusion untenable.
5. There was sufficient evidence to support an extended sentence under section 226A. The additional three-year licence period was a proper means of addressing the identified risk.

• Court of Appeal (Criminal Division). The appellant’s challenge to sentence was dismissed.
• Crown Court at Merthyr Tydfil. On 18 December 2015, following guilty pleas, the appellant received concurrent extended sentences for the firearms offences and concurrent sentences for the remaining offences. A 32-week suspended sentence was activated concurrently.