Capitao, R. v

For possession of a prohibited firearm, the statutory minimum sentence is not a ceiling. Sentence must reflect the firearm’s capability, the offender’s access to it, the intended criminal use, and relevant previous convictions. A firearm which is not technically operational may still be highly serious where it can be fired manually or used to intimidate.

Credit for a guilty plea must reflect its timing and practical value. A late plea, after a not-guilty plea and close to trial, attracts limited credit where later evidence merely confirms facts already known to the offender.

The Attorney General referred as unduly lenient the total sentence of five years and five months imposed at the Crown Court at Wood Green. The offender had pleaded guilty to possessing a prohibited firearm, breaching a serious crime prevention order, possessing a lock-knife, and failing to comply with sexual-offender notification requirements.

The firearm was concealed in a communal loft hatch. It was capable of manual discharge despite missing components. The offender’s DNA was on the firearm and its bag, and his telephone contained firearm images and searches about restoring a firearm. The central issue was whether the five-year sentence for the firearm offence, and consequently the total sentence, was unduly lenient.

1. The court granted leave and allowed the Attorney General’s reference. The sentence of five years for the firearm offence was unduly lenient. It substituted seven years’ imprisonment for that offence, producing a total sentence of seven years and five months.

2. Applying the sentencing approach in Avis [1998] 1 Cr App R (S) 420, the court assessed the firearm’s nature and capability, the offender’s access to it, its intended use, and his criminal record. Although the firearm was not in technical working order, it was genuine, could be fired manually, and had been concealed where the offender could access it. His internet research showed an intention to restore it. In any event, it could be used to intimidate in a criminal enterprise.

3. The statutory minimum of five years under section 51A of the Firearms Act 1968 applied, but the seriousness of the offence justified a starting point of not less than eight years. The offender’s convictions for violent offending, including robbery and rape, materially aggravated the offence.

4. A 28% reduction for the guilty plea was excessive. The plea followed not-guilty pleas, a defence statement, and listing for trial. The DNA evidence merely confirmed what the offender already knew. Credit of no more than 12%, reducing an eight-year starting point by 12 months, was appropriate. The other sentences were left undisturbed.

• Court of Appeal (Criminal Division) — by [2018] EWCA Crim 2377, granted leave under section 36 of the Criminal Justice Act 1988, held the firearm sentence unduly lenient, and substituted a total term of seven years and five months.
• Crown Court at Wood Green — on 25 July 2018, imposed a total term of five years and five months’ imprisonment.