R v Christopher Henry Jowitt

When sentencing for possession of a prohibited firearm subject to a statutory minimum, the minimum may be disapplied only where circumstances relating to the offence or offender are exceptional and its application would produce an arbitrary and disproportionate sentence. Retrial-related delay will ordinarily be insufficient merely because custody on recall does not count towards the later sentence. It may be sufficient where an earlier judge deliberately refrained from sentencing, having considered the prejudice caused by delay and planned to address it as an exceptional circumstance, and that approach was thwarted without fault by either party. Firearm categorisation is fact-sensitive and may take account of the basis of plea, acquittal on a more serious charge, and the absence of findings of criminal purpose or recklessness.

This was an Attorney General’s reference under section 36 of the Criminal Justice Act 1988 concerning a sentence imposed by the Crown Court at Southwark. The offender had pleaded guilty to possessing a prohibited firearm and ammunition. Following three trials, he was acquitted of possession of a firearm with intent to endanger life.

The Recorder classified the firearm offence as category 2 harm, imposed a sentence below the five-year statutory minimum under section 311 of the Sentencing Act, and found exceptional circumstances arising principally from delay after the offender’s recall to custody. The Attorney General challenged the sentence on the grounds that the offence should have been placed in category 1 and that the circumstances did not justify disapplying the minimum.

Reference dismissed. Leave to refer the sentence was granted, but neither ground of challenge succeeded.

1. Categorisation. The Recorder was entitled to place the firearm possession in category 2 for harm. The assessment could properly take account of the offender’s basis of plea, his subsequent acquittal of the more serious offence, and the Recorder’s findings that he had not intended the firearm or ammunition to be used for a criminal purpose and had not been reckless as to that use. Having regard to the careful sentencing remarks, the offence was not miscategorised.
2. Statutory minimum. Section 311 of the Sentencing Act requires at least five years’ custody unless exceptional circumstances relating to the offence or offender justify a lesser sentence. The circumstances must truly be exceptional, and the court must consider whether imposing the minimum would produce an arbitrary and disproportionate sentence. The court accepted that delay following a retrial, even where time in custody on recall does not count towards the later sentence, would ordinarily be insufficient.
3. Application to the case. The earlier trial judge had deliberately declined to sentence when he could have imposed the minimum. He reserved the case, having considered the effect of delay and the possibility of treating it as an exceptional circumstance. That planned approach was thwarted without fault by the defence or prosecution. Although the earlier indication did not create a legitimate expectation properly so called, it was open to the sentencing Recorder to find exceptional circumstances and moderate the impact of the minimum. The decision was entirely fact-sensitive and did not cast doubt on the general principles governing statutory minimum sentences.
4. The sentences of three years and five months for the firearm and one month concurrent for the ammunition were therefore upheld.

1. Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, leave was granted and the reference was dismissed.
2. Crown Court at Southwark: The Recorder sentenced the offender to three years and five months’ imprisonment for possessing a prohibited firearm and one month concurrent for possessing ammunition, having found exceptional circumstances justifying departure from the statutory minimum.