Lobato, R v

For an offence under section 16A of the Firearms Act 1968, the sentencing court must consider the factors identified in R v Avis. Serious, premeditated and sustained public use of a realistic imitation firearm to threaten innocent people requires an immediate custodial sentence. Personal mitigation, including mental health difficulties, may reduce sentence but does not displace the gravity of deliberate conduct where the offender understood what he was doing. A very late guilty plea justified limited credit only. The court substituted 15 months’ imprisonment for a sentence of five months that was unduly lenient.

The offender pleaded guilty in the Crown Court to possessing an imitation firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968. He and a co-defendant pursued three strangers in a car. The offender repeatedly displayed a working BB gun which closely resembled a real pistol, and the victims were terrified. A baseball bat was also used to strike their vehicle.

He received five months’ imprisonment. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was the least custodial term properly open for this serious imitation-firearm offence, allowing for the offender’s mental health difficulties, remorse and very late guilty plea.

1. The reference succeeded. The court granted leave, quashed the sentence of five months’ imprisonment as unduly lenient, and substituted 15 months’ imprisonment.

2. The maximum sentence under section 16A of the Firearms Act 1968 was ten years. Although no definitive guideline governed the offence, the court treated the factors in R v Avis, [1998] 1 Cr App R(S) 420, as matters that must be considered in firearms cases.

3. The offence was especially serious. It involved a premeditated, prolonged and dangerous pursuit of wholly innocent victims in public. The offender repeatedly used what appeared to be a real gun to frighten them. The presence and use of a baseball bat, the risk of collision and the lasting emotional effects on the victims aggravated the offending. Comparable decisions supported a sentence after trial of at least about 18 months’ imprisonment.

4. The offender’s psychiatric difficulties, difficult personal circumstances and genuine remorse were mitigating. They could reduce sentence to some extent. Their weight was qualified because he knew what he was doing and had worsened his difficulties through cannabis use. His plea was entered on the day of trial, more than a year after the offence, and merited only a 10% reduction. Applying that reduction and rounding in his favour, the least appropriate sentence was 15 months’ imprisonment.

• Court of Appeal (Criminal Division): On a Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court held that the Crown Court sentence was unduly lenient and substituted 15 months’ imprisonment.

• Crown Court: The offender pleaded guilty and, on 20 October 2017, was sentenced to five months’ imprisonment.