Callaghan, R v

For the mandatory minimum sentence under section 51A(2) of the Firearms Act 1968, a court must first address the four firearms-related questions in Avis and then take a holistic view of all circumstances, including personal mitigation. A favourable criminal record, lack of previous use and personal mitigation may nevertheless be outweighed by a deliberate intention to use a disguised weapon in connection with illegal drug activity.

Fresh evidence on appeal requires a reasonable explanation for its earlier absence and a real potential to afford a ground for allowing the appeal. A later psychological report will not establish unfairness in a Newton hearing where the offender was able to give the evidence he chose to give and the report does not affect the decisive factual finding.

The applicant pleaded guilty at Harrow Crown Court to supplying cocaine and possessing a disguised taser, contrary to section 5(1A)(a) of the Firearms Act 1968. On 27 April 2017, he received concurrent sentences of two and a half years and five years’ imprisonment respectively.

Following the single judge’s refusal of permission to appeal against sentence, the applicant sought a substantial extension of time, permission to amend his grounds, and permission to adduce a later clinical psychologist’s report under section 23 of the Criminal Appeal Act 1968. He contended that the Newton hearing was unfair and that exceptional circumstances justified departure from the statutory minimum sentence. The central issue was whether the fresh evidence or the circumstances of the offence and offender made the five-year term wrongful or disproportionate.

1. The court refused the application for an extension of time, the application to amend the grounds, and permission to rely on fresh evidence. There was no satisfactory explanation for the delay or for the failure to obtain an earlier psychological report. In any event, none of the proposed grounds had merit.

2. The evidence from the applicant’s telephone and the items found at his home amply supported the sentencing judge’s finding that he had a significant role in lower-end Category 3 Class A street dealing. The later psychological report did not show that the Newton hearing had been unfair. The applicant had been enabled to give evidence about both his drug dealing and the taser.

3. For section 51A(2) of the Firearms Act 1968, the court applied the guidance in Rehman & Wood [2005] EWCA Crim 2056 and the four questions stated in Avis [1998] 1 Cr App R (S) 420. Although the nature of the weapon, its lack of prior use and the applicant’s clean record favoured him, the critical finding was that he possessed it intending to use it if necessary in the course of his illegal drug activity. That finding was admitted and justified the conclusion that the circumstances were not exceptional.

4. A holistic assessment, including personal circumstances, did not alter that conclusion. The applicant’s good character, remorse, references, engagement with drug services and the psychologist’s report were not sufficiently exceptional. The report might have affected the finding that he knew the taser was prohibited, but it did not affect the decisive finding as to his intended use of it.

5. The five-year total was neither arbitrary nor disproportionate. Even if exceptional circumstances had existed, an appropriate shorter sentence for the firearm offence would have been consecutive to the drug sentence and would have produced a total sentence in broadly the same range.

• Court of Appeal (Criminal Division) — in [2018] EWCA Crim 1068, refused the applicant’s late renewed challenge to sentence, his amended grounds and his application to adduce fresh evidence.

• Harrow Crown Court — on 27 April 2017, following guilty pleas, imposed concurrent terms of two and a half years for supplying cocaine and five years for possession of a disguised firearm contrary to section 5(1A)(a) of the Firearms Act 1968.