Bartell, R v

Under section 51A of the Firearms Act 1968, the five-year minimum sentence applies unless the circumstances are truly exceptional. The decisive question is whether imposing that sentence would be arbitrary and disproportionate, assessed holistically in light of Parliament’s deterrent purpose.

The court must consider the nature of the weapon, its use, the offender’s intention and record. A personal interest in firearms, good character, lack of criminal associates and no intended criminal use will not ordinarily be exceptional where an offender has converted potentially lethal weapons, has suitable ammunition, stores them insecurely and has relevant recent convictions.

The Solicitor General referred, as unduly lenient, an aggregate sentence of two years and six months imposed at Wolverhampton Crown Court on Robert Bartell after guilty pleas to seven firearms offences. He had converted, or was converting, four blank-firing pistols to discharge live ammunition. Police also found ammunition and a shortened shotgun. The sentencing judge found exceptional circumstances and imposed sentences below the statutory minimum on the prohibited-weapons counts.

The central issue was whether the offender’s hobbyist motive and personal mitigation amounted to exceptional circumstances under section 51A of the Firearms Act 1968.

1. The court granted leave, quashed the sentences on counts 1 to 4 and 6, and substituted concurrent sentences of five years’ imprisonment. The sentences on counts 5 and 7 remained unchanged.

2. Section 51A(2) of the Firearms Act 1968 required a custodial sentence of at least five years for this adult offender unless exceptional circumstances relating to the offence or offender justified a lower term. Applying Nancarrow [2019] 2 Cr App R( S) 4, the court held that circumstances are exceptional only where the statutory minimum would be arbitrary and disproportionate. The assessment is holistic, fact-specific and must respect Parliament’s deterrent purpose.

3. The court applied the four questions in R v Avis [1998] 2 Cr App R(S) 178: the nature of the weapon, its use, the offender’s intention and the offender’s record. The sentencing judge’s distinction between an ordinary firearms offender and this offender was not a useful application of the statutory test.

4. Four converted firearms were potentially lethal, and ammunition was available for three of them. The offender knew both that his conduct was seriously criminal and that insecure storage created a danger that the weapons would reach the criminal market. His recent firearms convictions materially aggravated the position.

5. The court accepted that the offending was a hobby, the equipment was unsophisticated and there was no evidence of intended criminal use or supply. But, consistently with Cook [2017] EWCA Crim 1200, an amateur interest in firearms did not amount to exceptional circumstances. The available mitigation fell well short of displacing the mandatory minimum. A deterrent sentence may be harsh, including after a guilty plea, without being arbitrary or disproportionate.

• Court of Appeal (Criminal Division): On a statutory reference under section 36 of the Criminal Justice Act 1988, the court granted leave and increased the sentences: [2020] EWCA Crim 625.
• Crown Court at Wolverhampton: On 28 February 2020, imposed concurrent terms producing an overall sentence of two years and six months after guilty pleas to seven offences.