Brownlee, R v

For firearms offending involving a prohibited blank-firing weapon, sentence must be assessed by reference to the Avis questions as subsequently endorsed and updated. A sentencing judge may infer an intention to make the weapon capable of use as a firearm where the physical evidence and surrounding conduct support that conclusion, particularly where the offender adduces no contrary evidence at an offered Newton hearing.

Previous good character, social isolation, care responsibilities, the absence of actual use, and an early-stage conversion attempt are relevant mitigation. They do not preclude immediate custody where the offending, intended illegal use, and potential risk of serious public harm make that sentence necessary.

The appellant pleaded guilty at Chester Crown Court to offences arising from his acquisition and attempted conversion of a prohibited gas and signal pistol, together with drug and extreme-pornography offences. He received concurrent sentences totalling three years’ imprisonment.

The firearm had been obtained through the dark web. Examination showed drilling damage to its barrel obstruction. The appellant maintained that he had acquired it through naivety and for protection against burglars, but he called no evidence at an offered Newton hearing. The sentencing judge rejected that account and found that he intended to make the weapon capable of use as a firearm.

With permission of the single judge, the appellant appealed against sentence. He contended that the conversion attempt was ineffective and half-hearted, and that immediate custody overstated both the danger he presented and the seriousness of the offending.

1. Appeal dismissed. The total sentence of three years’ immediate imprisonment was neither wrong in principle nor manifestly excessive.

2. The firearms offences were the gravest aspect of the case. Their sentencing required consideration of the questions in Avis [1998] 1 Crim App R 420, as endorsed and updated in Wilkinson [2009] EWCA Crim 1925. The court took account of the weapon’s nature, the attempted adaptation, the absence of evidence of its actual use, the appellant’s previous good character, and his intended use of it.

3. The gas and signal blank-firing pistol was a prohibited weapon under section 5(1)(b) of the Firearms Act 1968, because it could fire flares and noxious substances: see Rose [2015] EWCA Crim 155. The sentencing judge was entitled to find that the appellant intended to make it capable of use as a firearm. His guilty plea to attempting conversion, drilling evidence, dark-web activity, and the firearms-related publications supported that finding. The absence of contrary evidence at the offered Newton hearing was material.

4. The court accepted the mitigating features, including the appellant’s lack of previous convictions, employment record, care responsibilities, social isolation, and the relatively early stage of conversion. Those matters did not displace the judge’s assessment that the appellant’s asserted naivety was unconvincing and that the potential harm to the public was serious.

5. Having regard to the risk to the public and the Sentencing Council guidance on community and custodial sentences, the judge was entitled to conclude that immediate custody was the only punishment capable of reflecting the offending. The three-year total also reflected the criminality on the other indictments.

• Court of Appeal (Criminal Division) — dismissed the appeal against sentence: [2020] EWCA Crim 1442.
• Chester Crown Court — on 6 August 2020, following guilty pleas, imposed concurrent sentences totalling three years’ imprisonment.