Umut Alpergin & Anor v R

A Category 2 harm assessment for possession of a firearm with intent to endanger life requires an elevated risk of death or severe physical harm. That risk is not established merely by the intrinsic danger of possessing a firearm and compatible ammunition. The court must assess the evidence of a likely connection to use, including the weapon’s location, accessibility and connection with organised criminal activity.

Culpability must be assessed by reference to the defendant’s position in the overall criminal group. Directing a subordinate does not necessarily make a defendant the group’s leading force. A sentencing factor already reflected in the applicable guideline category should not be counted again to increase the sentence above its starting point.

The appellants appealed, with leave, against sentences imposed at Croydon Crown Court on 1 June 2022 for firearms and associated offending.

Alex Findlay received an extended determinate sentence of 22 years for two offences of possessing a firearm with intent to endanger life, together with concurrent sentences for ammunition, drug and counterfeit-currency offences. Umut Alpergin received nine years’ imprisonment for possessing a firearm with intent to endanger life and a concurrent four-year sentence for possessing ammunition.

The central issues were the correct culpability and harm categories for the firearms offences, whether Findlay’s extended licence was justified, and the resulting sentences.

1. The appeals were allowed to the extent stated. The court quashed the principal firearms sentences and substituted lower sentences.

2. The offence under section 16 of the Firearms Act 1968 includes an intent to endanger life, but that did not automatically place every such offence in the Category 2 harm bracket. Category 2 required evidence of an elevated risk of death or severe physical harm, including a likely connection between possession and use. Relevant features included the weapon’s location and the ability of users to gain access to it.

3. Findlay was not the leading force in the overall organised group merely because he directed Darren Lewis. His culpability was therefore Category B rather than Category A. However, the firearms were stored at the home of his deputy, were readily available through a telephone call, and were connected with substantial drug dealing. Those facts distinguished R v Nurden & ors [2022] EWCA Crim 913 and entitled the judge to find Category 2 harm. The court upheld the conclusion that an extended sentence, including a four-year extended licence, was necessary for public protection. It substituted concurrent extended determinate sentences of 19 years, comprising 15 years’ custody and four years’ extended licence.

4. Alpergin’s movement of one firearm and ammunition did not, without more, establish the elevated risk required for Category 2. His case was closer to R v Nurden & ors [2022] EWCA Crim 913, so the proper category was 3B. Compatible ammunition had already been reflected in the categorisation and did not justify an additional increase from the starting point. The court substituted seven years’ imprisonment for the firearms count; the concurrent four-year ammunition sentence remained.

• Court of Appeal (Criminal Division) Allowed the appeals against sentence to the extent of substituting lower firearms sentences.
• Croydon Crown Court On 1 June 2022 imposed an extended determinate sentence of 22 years on Findlay and nine years’ imprisonment on Alpergin for the principal firearms offences.