R v David Musins

In sentencing for membership of a proscribed organisation, a guideline starting point does not prevent the judge from making an uplift where the offender’s individual culpability warrants it. Relevant considerations may include the offender’s age and standing within the group, the extent and character of promotional activity, and the specificity and extremity of the offender’s views. Sentences imposed on other offenders are fact-specific and do not, without more, establish disparity. A voluntary change of mindset before arrest is significant mitigation, but the amount of any reduction is a matter of sentencing judgment. A reduction of 50 per cent is reserved for particularly exceptional cases, such as resiling from the organisation coupled with active assistance to the police.

The applicant pleaded guilty at the Central Criminal Court to membership of a proscribed organisation contrary to section 11 of the Terrorism Act 2000. He was sentenced to a special custodial sentence comprising three years’ custody and one year on licence.

A single judge refused leave to appeal against sentence. The applicant renewed his application before the Court of Appeal (Criminal Division). He challenged the increase of the five-year guideline starting point to six years, relied on sentences imposed on other members, and argued that his profound change of mindset should have attracted a reduction of about 50 per cent rather than 25 per cent.

1. Renewed application refused. The sentencing judge was entitled to increase the five-year starting point applicable to an active but not prominent member. The judge could take account of evidence that the applicant was older than most members and might have been looked up to, together with the extent and nature of his activities. His participation in street art, graffiti, promotional video material and a significant number of events could properly distinguish his culpability from that of an ordinary active member.

2. The applicant’s views were specific and extreme. That was a proper sentencing consideration because membership of a neo-Nazi group did not necessarily involve views held to the same degree. The matters relied on were not all inherent in the offence and could therefore justify an uplift.

3. Sentences imposed on other offenders were of limited assistance. They were fact-specific, and comparison alone did not establish a disparity that required appellate intervention.

4. Clear evidence of a change of mindset before arrest was a mitigating factor recognised by the applicable guideline. The extent of the reduction was a matter of judgment in the individual case. The Court of Appeal would intervene only if the sentencing judge had gone wrong. A 25 per cent reduction was significant and disclosed no such error.

5. A reduction of 50 per cent would be reserved for a case involving both a complete rejection of the organisation and its views and active assistance to the police in undermining the organisation and securing the arrest of others. The applicant’s mitigation was substantial but did not fall within that category, particularly in the context of serious offending where deterrence was important.

• Court of Appeal (Criminal Division): refused the renewed application for leave to appeal against sentence.
• Single judge: refused the initial application for leave to appeal.
• Central Criminal Court: following the guilty plea, imposed a special custodial sentence of three years’ custody and one year on licence.