REGINA v CARL PHILLIPS

A guilty plea to a principal offence may provide the factual admission needed to substitute a properly charged lesser offence on appeal. Where a firearms count incorrectly identifies an offence outside Schedule 1, the Court of Appeal may use section 3A of the Criminal Appeal Act 1968 to substitute an offence that is included in the plea, provided the statutory conditions are met.

In sentencing serious violence, a shotgun wound involving a fractured bone, entry and exit wounds, surgery and continuing treatment may constitute greater harm even in a section 18 case. A late guilty plea may properly attract a reduced discount, and personal mitigation may carry limited weight where the offending is exceptionally grave.

The appellant pleaded guilty in the Crown Court at Sheffield to causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, and to possessing a firearm while committing an offence under section 17(2) of the Firearms Act 1968. He received concurrent sentences of 12 years and nine months.

He appealed against conviction on the firearms count, arguing that the count identified section 18 as the associated offence even though section 18 was not included in Schedule 1 to the Firearms Act 1968. He also appealed against sentence as manifestly excessive, challenging the seriousness category, guilty-plea credit and personal mitigation. The central issues were whether the defective conviction could be corrected and whether the sentence was unlawful or manifestly excessive.

Conviction

1. The appeal against conviction was allowed to the limited extent necessary to correct count 4. Section 18 of the Offences Against the Person Act 1861 was not one of the offences listed in paragraph 2 of Schedule 1 to the Firearms Act 1968. The conviction under section 17(2) was therefore unsafe as charged.
2. The court applied section 3A of the Criminal Appeal Act 1968. The appellant’s guilty plea to the section 18 offence admitted facts proving the lesser offence under section 20. The court relied on R v Mandair [1995] 1 AC 208 for the principle that a section 20 offence is necessarily incorporated in a plea to section 18. It substituted a plea of guilty to the section 17(2) offence based on section 20, without increasing the sentence.
3. The correction was considered preferable because the indictment should reflect the appellant’s use of a firearm and his record should show the firearms conviction. The error was technical in the circumstances, since the sentences on the two counts were concurrent and the firearms count had not increased the sentence.

Sentence

1. The sentence appeal was dismissed. The judge was entitled to place the offending in the highest guideline category. The shooting involved high culpability, including premeditation, targeting a vulnerable victim, use of a sawn-off shotgun and group offending. The shotgun wound caused a fractured bone, entry and exit wounds, surgery and continuing treatment, and properly constituted greater harm even in the context of a section 18 offence.
2. A 15-year sentence after trial was within the judge’s discretion. A 15 per cent discount for a guilty plea entered shortly before trial, after a not-guilty plea at the plea and trial preparation hearing, was also within the proper ambit of discretion. The co-defendant’s greater discount was irrelevant.
3. The judge had considered the appellant’s good character and personal circumstances, including the birth of his child. Those matters could carry only limited weight given the gravity of the offending. The sentence of 12 years and nine months was not manifestly excessive.

• Court of Appeal (Criminal Division): granted an extension of time and leave to appeal against conviction; allowed the conviction appeal to substitute the section 20 offence within the section 17(2) firearms count; dismissed the appeal against sentence.
• Crown Court at Sheffield: following guilty pleas, imposed concurrent sentences of 12 years and nine months for the section 18 offence and the firearms offence.