No: 200405489/A2 
Neutral Citation Number: [2004] EWCA Crim 2954
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 4th November 2004
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MRS JUSTICE HALLETT DBE 

MRS JUSTICE DOBBS 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 114 OF 2004    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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MISS C CUNNINGHAM appeared on behalf of the ATTORNEY GENERAL
MR R HORWELL appeared on behalf of the OFFENDER
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J U D G M E N T
1.	THE VICE PRESIDENT:  The Solicitor-General for the Attorney-General seeks the leave of the Court, under the Criminal Justice Act 1988, to refer a sentence said to be unduly lenient.   
2.	The offender is 23 years of age, having born in February 1981.  On 13th July 2004 he pleaded guilty to three counts in the indictment against him.  Count 1 was of possession of a firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968 and counts 2 and 3 were of possession of a bladed article, two folding lock-knives, contrary to section 139(1) of the Criminal Justice Act 1988.  On 2nd September 2004 he was sentenced by His Honour Judge Lambert, at Bristol Crown Court, to a total of three-and-a-half years' imprisonment, 3 years on count 1 and 6 months concurrently on each of counts 2 and 3, but consecutively to the 3 years on count 1.
3.	In outline, what happened was that, on 11th April 2004, at about 1.30 in the morning, police officers attended a nightclub where there had been an altercation and a shot fired.  The two people involved were pointed out to them, one of them: one of t hem was the offender.  He squatted down behind a wall and sought to get rid of a handgun.  He also had two folding lock-knives.  He was arrested and he made full admissions in interview.
4.	The circumstances, in a little more detail, were that when police attended, they had been informed that guns had been seen and a shot fired.  When they followed the offender into an alleyway he, as we have said, sought to get rid of a handgun; he failed to do so, and to the nature of that gun we shall return in a moment.  He also had two folding lock-knives in his possession and was wearing a bullet proof vest.
5.	The gun was a Bruni 1911, with a 13 centimetre barrel.  It originally had been designed to fire blanks but had been converted to fire 8 mm steel balls attached to the blank cartridges.  The steel balls had a smaller dimension than the barrel and so gas generated by firing partly escaped.  There was enough energy to discharge the ball from the barrel, but insufficient to activate the recoil process: so the next round had to be produced from manual recocking rather than automatic reloading.  There was evidence from an expert that the gun was a prohibited weapon, as defined by section 5(1) of the Firearms Act 1968, its barrel being less than 30 centimetres in length and its overall length being less than 60 centimetres.
6.	The offender, having been arrested, was interviewed.  He said that he had been out with friends and at the nightclub.  He had felt threatened by another group in the club and had gone home to collect the gun.  When he came back, and was outside the club, he again felt threatened and though his brother was likely to be shot by someone from the other group.  So, he fired the gun, once, to threaten that other person.  He said he had not pointed the gun to kill.  He had fired it merely to scare the other group.  After the initial shot, the gun had jammed, for reasons which we have already sought to explain. He had the two knives because others also had knives.
7.	Section 287 of the Criminal Justice Act 2003 came into force on 22nd January 2004, that is to say, 3 months before these offences were committed.  It imposes a minimum term of 5 years in relation to an offender aged 18 or over, who is in possession of a prohibited weapon.  No offence of possession of a prohibited weapon contrary to section 5 such as to trigger that mandatory penalty, was included in the indictment.  It is apparent from the sentencing remarks of the learned judge that he was unaware that this weapon was a prohibited weapon.  We shall come a little later to events before him, in relation to the possible amendment of the indictment. As will emerge, nobody on behalf of the prosecution suggested that an amendment should be made to charge an offence contrary to section 5.
8.	After the judge had passed sentence, the case was re-listed before him, on the same day. At that stage, prosecuting counsel reminded the judge of the minimum 5 year sentence for possession of a prohibited weapon.  The judge's response was that he was aware of that, but, bearing in mind that no offence, contrary to section 5 had been charged, the statutory minimum did not apply.  He commented that he had never been told that this particular firearm was a prohibited weapon.
9.	The offender has no previous convictions.  There was before the sentencing judge a report indicating that the offender claimed that his family had been threatened as part of a local gang dispute.  He had bought the gun and knives for his own protection and had used the gun to frighten.  The assessment made of the offender, by the probation officer, was that he constituted a low risk of re-offending, taking into account his lack of previous offending, although he posed a high risk of causing serious harm, having regard to the current feud involving him and others.
10.	The mitigation advanced on behalf of the offender was that he had pleaded guilty at the first opportunity, and the wearing of the bullet proof vest was indicative of the offender's genuine belief that he had been threatened in a manner likely to cause him serious harm.  It was also stressed that he had fully co-operated with the police when he had been interviewed.
11.	The learned judge, in passing sentence, said that he did so on the basis that, in the absence of any further evidence from the Crown, he could not be sure that the 'bullet' would have had the capacity to kill somebody.  The offender had made a premeditated use of the gun, but there was no discharge of the weapon amounting to a threat to life of which he could be sure.  He commented, in relation to the knives, that their carrying by young men had to be deterred.
12.	On behalf of the Solicitor-General, Mr Horwell draws attention to five aggravating features. First, the firearm was a prohibited weapon, possession of which carried a minimum term of 5 years.  Secondly, the offender had deliberately armed himself in anticipation of using unlawful violence and then returned to the scene so armed.  Thirdly, the firearm had been discharged in a public place, when others were present.  Fourthly, the offender had been assessed as presenting a high risk of causing serious harm to others.  Fifthly, such offences are prevalent.
13.	Mr Horwell draws attention to the mitigation to be found in the plea of guilty and the absence of previous convictions.
14.	Mr Horwell advances three submissions in support of the general proposition that the sentence passed by the learned judge was unduly lenient, in failing to reflect the gravity of the offence and the new statutory minimum term for the possession of a prohibited weapon, and public concern about firearms offences.  First, he submits that it is not necessary to incorporate in an indictment a count alleging possession of a prohibited weapon, contrary to section 5 of the Firearms Act, in order to trigger the statutory minimum sentence of 5 years.  Secondly, he submits that, if no such count is necessary, the sentence passed by the learned judge ought to have been the minimum of 5 years.  Thirdly, in the alternative, if the addition of a section 5 count is necessary, the total sentence passed by the learned judge was unduly lenient.
15.	In support of the first of those propositions, Mr Horwell sought sustenance from a judgment of this Court given by the Lord Chief Justice Lord Woolf in Benfield & Ors [2004] 1 Cr App R(S) 307.  In that case, the issue which the Court was addressing was the propriety of an automatic life sentence in relation to a plea of guilty to a single count of robbery.  The statutory provision which the Court was considering was section 109 of the Powers of Criminal Courts (Sentencing) Act 2000.  That section requires a life sentence to be imposed for a second serious offence.  Section 109(5) identifies those offences which are serious for the purpose of that section.  They include:
"(g) an offence under section 16, (possession of a firearm with intent to injure) section 17 (use of a firearm to resist arrest)or section 18 (carrying a firearm with criminal intent) of the Firearms Act 1968 
 (h) robbery, where at some time during the commission of the offence the offender had in his possession a firearm or imitation firearm within the meaning of that Act." 
16.	The question which was being addressed in paragraph 14 of the judgment, on which Mr Horwell relies, is whether, in that statutory context, it is necessary to include in an indictment an additional count in relation to a firearms offence in order to establish that the offence of robbery is one within (h), that is to say, the offender had in his possession a firearm or imitation firearm.
17.	In that context, Lord Woolf said this, at paragraph 13: 
"However, the fact that the position that arises in relation to s 109(5) is different from that which arose under the Sexual Offences Act does not mean that it is not important that a defendant should have the opportunity of obtaining the verdict of a jury if there is an issue as to whether or not he falls within s 109(5)(h).  Where there is an issue, that issue will be determined in favour of the defendant unless he has been convicted of an offence which establishes that at the time of the commission of the robbery he was in fact in possession of a firearm, or an imitation firearm, or he unequivocally admits that that is the position 
14. We consider that that is an outcome which is to be preferred to requiring the indictment always to contain an additional count of a firearm offence. If the indictment always had to include an additional offence of that sort then in practice s 109(5)(h) would add nothing to s 109(5)(g). Furthermore, it would mean that where an offender did not dispute that he had in his possession at the time of the offence a firearm or an imitation firearm, the indictment would have to be cluttered up with an extra count purely for sentencing purposes. Accordingly, we consider that it is only where there is an issue that that is required.  We also consider that the fact that there is not an issue must be established to be abundantly clear from what happened in the court below. We recognise that this will mean inconvenience. In many cases it will involve looking very carefully at the proceedings in the court before whom the appellant appeared.  It will involve doing this not only with regard to the more recent offence (the later offence), but also in respect of the earlier offence to see if that offence is one which pursuant to s 109(5)(h) is a serious offence." 
18.	As it seems to us, paragraph 14 in the judgment in Benfield, which was clearly obiter and does not sit easily with the judgment in R v Eubank [2002] 1 Cr App R(S) 11, in so far as Eubank required the addition of a count does not lend sustenance to Mr Horwell's submission.  We say that for two reasons in particular: first, as is apparent, the Court in Benfield were considering the statutory provisions of section 109, which are not only quite different from the provisions with which this Court is concerned, but they establish a particular regime in relation to the imposition of life sentences, which is not the context of the present case.  Secondly, Lord Woolf was at pains to emphasise that "the fact that there is not an issue must be established to be abundantly clear from what happened in the court below." It is apparent, in part from what we have already said and in part from what we are about to say, that it was far from clear in the court below in the present case what the true position was.
19.	Miss Cunningham, on behalf of the offender, pointed out that there was a stage, prior to plea and sentence, where there was a discussion before the learned judge and counsel as to whether or not the indictment should be amended.  The prosecution wanted to substitute a count for an offence contrary to section 16 of the Firearms Act in place of the count charging an offence contrary to section 16A.  The difference between those two offences is that, under section 16, the possession of the firearm has to be with intent to endanger life, or to enable another person to endanger life, whereas, under section 16A, the count to which the offender pleaded guilty, possession of the firearm is accompanied by an intent to cause fear of violence.
20.	After some discussion, the prosecution withdrew their application to amend the indictment to charge a count under section 16 rather than section 16A.  At no stage did that discussion include any suggestion that a count should be added of an offence contrary to section 5.  In those circumstances, it is not, as it seems to us, in the least surprising that, by the time the judge came to pass sentence, he was unaware that the firearm in question was being said to be a prohibited weapon within section 5.
21.	Mr Horwell accepted that it would be no great burden on the prosecution if they were required, in cases in which they sought to invite a judge to impose the minimum 5 year term under section 5, to add a count under section 5, if one was not already present in the indictment.
22.	As it seems to us, that is the course which should be followed.  It will avoid the confusion which was manifest throughout this case in the Crown Court.  And it will make clear to a defendant, and those advising him, that he is at risk of a minimum sentence of 5 years if an offence under section 5 is proved against him or admitted by him.  In our judgment, no unnecessary cluttering of the indictment will occur if the prosecution follow that course.  It follows that we reject Mr Horwell's first submission and it is unnecessary to consider his second submission.  The remaining question is whether or not the sentence passed by the learned judge was unduly lenient.
23.	In that regard Mr Horwell rightly drew the Court's attention to R v Avis [1998] 2 Cr App R(S) 178, R v Corry [2000] 1 Cr App R(S) 47 and R v Doyle [2001] 2 Cr App R(S) 8.  Miss Cunningham submits that, in the light of all the circumstances of this case, the sentence passed by the learned judge should not be characterised by this Court as being unduly lenient. In the alternative, if it is to be so characterised, it should not, in the discretion of the Court, be interfered with.
24.	It is a striking feature of this case that this young man was hitherto of good character.  It is comparatively unusual for firearms offences to be committed by people with a previously clear record.  The sentence which the learned judge passed, as it seems to us, was not one, for the reasons which we have already given, which ought properly to have been influenced by the minimum 5 year term. The learned judge was undoubtedly correct in imposing a consecutive sentence in relation to the knives which were carried on the same occasion.  It is pertinent that this young man pleaded guilty at an early opportunity.  Taking all of these circumstances into account, we take the view that the sentence passed by the learned judge was within the proper ambit of the judge's sentencing powers.  Perhaps the time has come to repeat the observations of Lord Lane CJ which were made in Attorney-General's Reference No 4 of 1989 11 Cr App R(S) 517 at 521, because those observations are as pertinent today as they were when they were first uttered.  We do not, of course, overlook the fact that the present application by the Solicitor-General was made because of the arguments sought to be advanced in relation to the statutory minimum under section 5.  However, what Lord Lane said was this: 
"It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased - with all the anxiety that that naturally gives rise to - merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.  In that connection regard must of course be had to reported cases, and in particular the guidance given by this Court from time to time in the so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice.  That mercy should season justice is a proposition as soundly based in law as it is in literature." 
This application is refused.