R v Orion Cowan

For repeat qualifying weapon offences, the statutory minimum custodial term may be displaced only where the circumstances are truly exceptional. The court must consider the particular circumstances of the offences and offender together. The question is whether the minimum term would produce an arbitrary and disproportionate sentence. Factors common to many cases, mitigation and a guilty plea will not ordinarily suffice alone.

The post-June 2022 sentencing guidance must be applied. A lengthy gap since the previous offence, exceptional youth at that offence, and a material difference between the earlier and current weapon offences may cumulatively justify departure from the minimum term.

The applicant pleaded guilty to possessing knuckledusters, failing to surrender to custody, and possession of cannabis. The Central London Magistrates’ Court committed him to the Crown Court for sentence on the first two offences.

At Guildford Crown Court, the Recorder imposed five months’ detention in a young offender institution for possession of the offensive weapon and one month consecutively for failing to surrender. The applicant appealed on grounds concerning totality, the mandatory minimum term, the failure-to-surrender sentence, and credit for his guilty plea.

The central issue was whether the circumstances surrounding his previous weapon conviction and the present offence were exceptional so as to justify departure from the statutory minimum sentence.

1. Appeal allowed. The court granted leave and quashed both sentences. It substituted six weeks’ detention in a young offender institution for possession of the offensive weapon, and imposed no separate penalty for failing to surrender. The result allowed the applicant’s immediate release.
2. Under section 315 of the Sentencing Act 2020, the six-month minimum term applied in principle because the applicant had a previous relevant conviction. However, the Recorder should have applied the current sentencing guidance on exceptional circumstances. That guidance superseded the previous authorities. It requires consideration of all circumstances relating to the offences or the offender, and asks whether imposing the minimum term would be arbitrary and disproportionate.
3. The relevant circumstances were cumulative. There had been a six-year gap between the offences; the applicant had been only 12 when convicted of the earlier bladed-article offence and received a referral order; and the present offence involved knuckledusters rather than a bladed article. Collectively, those matters were truly exceptional. A six-month sentence before guilty-plea credit was arbitrary and disproportionate, and therefore manifestly excessive.
4. The Recorder should also have transferred the sentence to Chelmsford Crown Court so that one court could address totality with the applicant’s existing community order. For failing to surrender, the applicable guideline placed the offence in culpability A and category 3, with a 14-day starting point. The one-month consecutive sentence was manifestly excessive. Although the notional sentence after credit was nine days, section 263(2) of the Sentencing Act 2020 required at least 21 days’ detention in a young offender institution. In the overall circumstances, no separate penalty was appropriate.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 1278, allowed the sentence appeal, quashed both Crown Court sentences, substituted six weeks’ detention for the weapon offence, and imposed no separate penalty for failing to surrender.
• Crown Court at Guildford: On 30 August 2023, imposed five months’ detention in a young offender institution for possession of an offensive weapon and one month consecutively for failing to surrender.
• Central London Magistrates’ Court: On 21 August 2023, committed the applicant to the Crown Court for sentence on the weapon and bail offences.