Ospina, R. v

An initial and less serious charging decision, corrected before the proceedings have concluded, does not by itself amount to exceptional circumstances permitting departure from the statutory minimum sentence for possession of a prohibited firearm.

Custodians who hold lethal firearms for others facilitate their availability for criminal use. Their role therefore calls for severe deterrent and punitive sentences, with public protection a paramount consideration. A guilty plea must nevertheless receive an appropriate reduction, consistently with the duty to impose the least severe sentence commensurate with the offence.

The appellant pleaded guilty in the Crown Court at Inner London to possessing a prohibited firearm, possessing ammunition, possession of class B cannabis with intent to supply, and acquiring, using or possessing criminal property. Police found almost four kilograms of cannabis, cash, a Scorpion sub-machine gun and compatible ammunition at his home.

He was sentenced to seven years’ detention for the firearm, with eight months’ consecutive detention for the cannabis offence. He appealed on the grounds that exceptional circumstances justified a sentence below the statutory minimum, that the firearm sentence was excessive, and that his guilty plea had received insufficient credit.

1. The appeal was allowed in part. The sentence for the prohibited-firearm count was reduced from seven years to six years. The consecutive eight-month sentence for the cannabis offence remained. The substituted total was therefore six years and eight months’ detention in a young offender institution.

2. The prosecution’s initial decision to charge a less serious Firearms Act 1968 offence, followed by a corrected charge under section 5 before the proceedings concluded, did not amount to exceptional circumstances. The appellant had not already been sentenced on the original charge. There was accordingly no basis to disapply the statutory minimum under section 51A(2).

3. The court rejected the challenge to the judge’s assessment of the firearm offending. A working sub-machine gun with compatible live ammunition was an exceptionally dangerous weapon. Although the appellant was sentenced as a custodian for another person and there was no evidence of use, persons who harbour lethal firearms enable their use by others and must expect severe sentences. The court applied the sentencing emphasis on public protection and deterrence stated in Attorney General's Reference No 43 [2010] 1 Cr.App.R (S) 100.

4. The appropriate sentence after a trial was nine years. Given the guilty plea, and the requirement in section 143 of the Criminal Justice Act 2003 to impose the least severe sentence commensurate with the offence, the correct sentence was six years rather than seven.

5. The judge was entitled to treat the cannabis offending as Category 3. The eight-month consecutive sentence properly reflected the appellant’s significant role in relation to 651 grams of cannabis and was not manifestly excessive.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in part and substituted a total sentence of six years and eight months’ detention in a young offender institution.

• Crown Court at Inner London: Following guilty pleas, imposed a total sentence of seven years and eight months’ detention in a young offender institution.