Dawson, R. v

For a prohibited-firearm offence subject to the five-year minimum under Firearms Act 1968, exceptional circumstances arise only where the minimum would be arbitrary and disproportionate. The assessment is structured but cumulative. It considers the weapon, its use, the offender’s intention and record, together with all relevant circumstances.

Fleeting possession and an asserted intention to dispose of a firearm may contribute to exceptional circumstances. They do not suffice where the manner of disposal obstructs the police and exposes others to a loaded weapon. Pressure or threats from criminals do not, by themselves or with ordinary mitigating factors, displace Parliament’s deterrent sentencing scheme.

The appellant pleaded guilty at the Crown Court at Blackfriars to possessing a prohibited pistol and to possessing ammunition without a firearm certificate, contrary to the Firearms Act 1968. The sentencing judge imposed the statutory five-year minimum for the firearm offence and a concurrent two-year sentence for ammunition.

The appellant said that men who had used his flat for drug dealing handed him the loaded pistol as police arrived. He said he threw it from a window because he feared them. The judge found that his possession lasted only seconds and that he had been a victim of those with whom he associated. The appeal challenged the finding that these facts did not amount to exceptional circumstances.

1. Appeal dismissed. The court held that the five-year minimum sentence was not arbitrary or disproportionate and that no exceptional circumstances justified departure from it.
2. Under section 51A of the Firearms Act 1968, the court must assess the case as a whole. Applying R v Rehman and Wood [2005] EWCA Crim 2056, circumstances are exceptional only if imposing the minimum would be arbitrary and disproportionate. The threshold remains high.
3. The factual basis at sentence had not been established in the structured manner required by R v Rogers [2016] EWCA Crim 801. Exceptional circumstances should be set out in writing, the prosecution should state whether they are agreed, and disputed facts should ordinarily be resolved at a Newton hearing. Despite that deficiency, the court proceeded on the judge’s findings.
4. Applying the four questions from R v Avis [1998] 1 Cr App R(S) 420, the firearm was a potentially lethal loaded pistol; possession was brief; the appellant’s asserted purpose was disposal; and he was effectively of good character.
5. Those favourable features did not justify departure. The appellant threw the firearm into a children’s play area as police entered, thereby helping the other men to avoid detection and creating a risk that children or criminals would obtain it. He also admitted possessing two further cartridges and had allowed the men to use his flat for drug dealing. His claimed fear and threats could not, without undermining the statutory deterrent scheme, amount to exceptional circumstances. The court distinguished the safe, permanent disposal contemplated in R v Harrison [2006] EWCA Crim 345.

• Court of Appeal (Criminal Division) — on 16 November 2017, dismissed the appeal against sentence: [2017] EWCA Crim 2244.
• Crown Court at Blackfriars — on 26 April 2017, imposed the five-year statutory minimum for possession of a prohibited firearm under the Firearms Act 1968, with a concurrent two-year sentence for ammunition possession.