Hussain, R v

In a minimum-sentence firearms case, the court should first determine the sentence justified by ordinary sentencing principles and then consider whether it falls below the statutory minimum. A guilty-plea reduction cannot take a sentence below that minimum unless exceptional circumstances justify departure. Where departure is justified, sentence is at large and ordinary credit may be given.

Whether circumstances are exceptional is fact-specific. The Avis questions concerning the weapon, its use, the offender’s intention and record assist that assessment. Driving disqualification extensions must distinguish the custody attributable to motoring offences from any discretionary uplift for other custodial sentences.

The appellant, aged 18, was sentenced at Manchester Crown Court on 13 August 2018 for possession of a disguised stun gun, two episodes of dangerous driving, driving while disqualified and uninsured, and theft of fuel. He received a total of six years and two months’ detention in a young offender institution, together with driving disqualification.

His accepted basis of plea was that he only came into joint possession of the stun gun when his passenger disclosed it during a police pursuit. He had not placed it in the vehicle or intended to possess or use it. The central issue was whether those circumstances were exceptional so as to permit a sentence below the five-year minimum for the firearms offence. The Registrar also identified defects in the driving-disqualification order and in the magistrates’ committal for sentence.

1. The appeal was allowed in part. On the unchallenged basis of plea, the judge had not properly addressed the submissions supporting exceptional circumstances under section 5(1A)(a) of the Firearms Act 1968. The facts showed limited and technical joint possession of a stun gun which the appellant had not intended to possess or use. The court stressed that the conclusion was confined to those facts.

2. The four questions in R v Avis [1998] 2 Cr App R(S) 178 pointed towards exceptional circumstances: the weapon did not fire bullets, there was no evidence of its use, the accepted intention was limited, and the appellant had no relevant record of firearms or violence. The minimum sentence was therefore displaced.

3. The court applied the approach confirmed in R v Boyle [2018] EWCA Crim 2035. The appropriate sentence before credit was three years’ detention. Ten per cent credit for the plea entered on the trial date produced 32 months. The other consecutive sentences were upheld, giving a total of 46 months’ detention.

4. The driving-disqualification order was unlawful. Under sections 35A and 35B of the Road Traffic Offenders Act 1988, the extension attributable to custody for motoring offences had to be separated from any discretionary uplift reflecting custody for other offences. The court substituted four years’ concurrent disqualification for the dangerous-driving offences, a 12-month section 35A extension, and an 11-month section 35B uplift: five years and 11 months in total. The further extended-test order was quashed because such an order was already in force.

5. The magistrates’ committal for sentence of the summary offences was outside their powers. Applying R v James [2017] EWCA Crim 1367, the court reconstituted itself as a Divisional Court, quashed those sentences, and re-sentenced the appellant in the same terms.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in part. It reduced the firearms sentence, corrected the driving disqualification, quashed the extended-test order, and remedied the unlawful committal for sentence.
• Crown Court at Manchester: On 13 August 2018 imposed total detention of six years and two months, disqualification from driving for seven years and one month, and an extended driving-test order.