Rogelio Ahumada y Otero v R

Under the sentencing guideline for prohibited firearms, the choice between Table 1 and Table 2 at step two depends on whether the offence attracts a statutory minimum sentence. Exceptional circumstances are considered at step three and do not alter that table selection.

Where exceptional circumstances justify departure from the minimum, Table 2 is only a discretionary reference point. The court must impose a shorter custodial or alternative sentence and make substantial adjustments reflecting the statutory minimum, the exceptional circumstances and mitigation. Aggravating factors may warrant only modest uplift. In unusual cases, concurrent suspended sentences may be appropriate where immediate custody is not required to achieve proper punishment.

Rogelio Ahumada y Otero v R arose from an appeal against sentence following guilty pleas to possessing a prohibited firearm and ammunition at Heathrow Airport, contrary to the Firearms Act 1968. The Crown Court found exceptional circumstances, including ignorance of possession, advanced age, poor health and exemplary character, but imposed 26 months’ imprisonment on the firearm count and a concurrent three-month sentence on the ammunition count.

The appellant challenged the use of Table 1 rather than Table 2, the extent of the reduction for exceptional circumstances and mitigation, and the refusal to suspend the sentences. The central issues were how the sentencing guideline operated after exceptional circumstances had been found and whether immediate custody was necessary.

The appeal was allowed. The sentences were quashed and concurrent suspended sentences substituted.

1. The guideline’s structure required Table 1 to be used at step two because the firearm offence was subject to the statutory minimum under section 311 of the Sentencing Act 2020. The choice of table depended on the nature of the offence, not on whether exceptional circumstances were later established. That issue arose at step three.

2. Exceptional circumstances required consideration of the particular circumstances of the offence and the offender together. The circumstances had to be truly exceptional and had to justify the conclusion that imposing the minimum term would be arbitrary and disproportionate. The court accepted that the judge had been entitled to find aggravating features in the quantity of ammunition and the imminent commercial flight.

3. Once exceptional circumstances had been found, step three required a shorter custodial sentence or an alternative sentence. Referring to Table 2 was discretionary, but the judge had to explain any decision not to use it. Having declined to use Table 2, the judge had to recognise that the Table 1 starting point was inflated by the statutory minimum. The aggravating features therefore warranted only a modest uplift, followed by a very substantial reduction for the exceptional circumstances and mitigation. The proper sentence before guilty plea credit was three years, reduced to two years.

   The approach was consistent with the deterrent rationale explained in R v Rehman [2005] EWCA Crim 2056. The caution concerning deterrence where the offender was unaware of possession, identified as dicta in Zhekov [2013] EWCA Crim 1656, was also apposite.

4. On the unusual facts, appropriate punishment could and should be achieved by suspension. Immediate custody was inappropriate because punishment did not require immediate imprisonment. The court substituted two years’ imprisonment suspended for two years on count 2 and three months’ imprisonment suspended for two years on count 4, concurrent, without requirements. The appellant was released.

1. Court of Appeal (Criminal Division): Appeal allowed. The sentences were quashed and concurrent suspended sentences substituted.
2. Crown Court at Isleworth: On 15 June 2023, the appellant was sentenced to 26 months’ imprisonment on the firearm count and three months concurrently on the ammunition count.