McMahon, R v

In deciding whether exceptional circumstances justify departure from a statutory minimum sentence, the court must assess all relevant circumstances cumulatively. Exceptional circumstances arise where the minimum would be arbitrary and disproportionate. A defendant’s lack of awareness that bare possession was unlawful may materially affect the deterrent rationale, where that basis is accepted.

A sentencing judge acts unfairly and errs in principle by rejecting an accepted basis of plea without giving the defendant an opportunity for a Newton hearing. Even where exceptional circumstances displace the minimum sentence, the seriousness of a firearm offence and the continuing deterrent purpose of the statutory regime may require an immediate custodial sentence.

The appellant pleaded guilty at Kingston Crown Court to possessing a disguised firearm contrary to section 5 (1A)(a) of the Firearms Act 1968, and to possessing cannabis. The Recorder imposed five years’ imprisonment for the firearm offence.

The Crown accepted the appellant’s basis of plea. It included that the stun gun, disguised as a torch, had been given to him by a friend; that he had not used its stun-gun function; and that he did not know possession was unlawful. The Recorder nevertheless rejected the asserted lack of knowledge without a Newton hearing and found no exceptional circumstances.

The appeal concerned whether that approach was fair and whether the circumstances, considered cumulatively, justified a sentence below the statutory minimum.

1. Appeal allowed. The Recorder erred in principle by rejecting the accepted basis of plea on the appellant’s asserted ignorance of the illegality of possession without giving him an opportunity for a Newton hearing. Although that assertion might have appeared implausible, it was unfair simply to reject it after the Crown had accepted it.

2. The Court therefore conducted the sentencing exercise afresh. Applying the guidance in R v Rehman [2006] 1 Cr App R(S) 77, exceptional circumstances must be assessed holistically. The question is whether application of the minimum sentence would be arbitrary and disproportionate. The deterrent purpose of the minimum carries no force against a person who did not know that the relevant possession was unlawful.

3. On the cumulative facts, exceptional circumstances were established. Material matters were the weapon’s non-lethal character, its position at the lower end of the scale of illegal firearms, the appellant’s acquisition of it as a gift, and his accepted ignorance that mere possession was unlawful. The five-year minimum sentence was consequently disproportionate and manifestly excessive.

4. Exceptional circumstances did not make a suspended sentence appropriate. The offence remained serious, and deterrence continued to underpin Parliament’s purpose. The five-year sentence for the firearm count was quashed and replaced with 30 months’ imprisonment, to be served immediately.

• Court of Appeal (Criminal Division): Allowed the appeal in R v McMahon [2018] EWCA Crim 1296. It quashed the five-year sentence for the firearm offence and substituted 30 months’ imprisonment.

• Kingston Crown Court: On 24 November 2017, the Recorder sentenced the appellant, following guilty pleas, to five years’ imprisonment for possessing a disguised firearm and a concurrent three months for cannabis possession.