No: 200701434 C5, 200701436 C5, 200701435 C5, 200700338 C5 

Neutral Citation Number: [2007] EWCA Crim 1735
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Wednesay, 27th June 2007
 
B E F O R E:

LORD JUSTICE LATHAM 

MR JUSTICE PITCHERS 
 
MR JUSTICE ROYCE 

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R E G I N A 

‑v‑ 

ROSS GEORGE DEREK PHILLIPS 
BEN WHIFIELD 
SHANE PLEASANT 
DANIEL PETER MCENEANY 
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MR TEGILGAS‑DAVEY appeared on behalf of the Applicants Phillips, Whitfield amd Pleasant.
MR B JACKSON appeared on behalf of the Applicant, McEaney.
MR N MACAULEY appeared on behalf of the Crown 
 
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J U D G M E N T
1.	LORD JUSTICE LATHAM:  The appeals by these four appellants from sentences they received at Court‑Martial, all in one form or another raise, firstly, an issue of principle in relation to the powers and obligations of courts Martial in relation to the sentence to be imposed in cases where the servicemenan has been convicted of an offence which were it committed by a civilian would have been an offence under the Fire Arms Act 1968, carrying, as a result of the amendment of that Act by the Criminal Justice Act 2003, a minimum sentence of five years' imprisonment.
2.	The point of principle in issue is whether or not a Court‑Martial is a court for the purposes of that statutory provision, it being expressly the requirement to impose a minimum term being expressed by subsection (2) of section 51A of the Firearms Act in the following terms: checked
"The court shall impose an appropriate custodial sentence..."  
The appropriate custodial sentence, as we have indicated in relation to these offenders, would, have they been civilians, have been five years' imprisonment.  The issue arises because section 305 of the 2003 Act states, as far as court is concerned, that it did not except in circumstances where mandatory life sentences are imposed "include a service court". 
3.	The point of principle, in so far as it relates to the statutory construction of those provisions, can be taken shortly.  The consequence must be that the mandatory provision in section 51A is not a provision which the Court‑Martial is obliged to impose.
4.	In each of these appeals the Court‑Martial proceeded on the basis that it was required to impose the minimum mandatory sentence.  It follows that in each case the Courts‑ Martial had misdirected itself as to the law and the requirements of these statutory provisions.
5.	We, therefore, have to consider what the consequences are in relation to the particular sentences that have been imposed.  Bearing in mind that the court's powers were in fact the powers contained in section 70 and 71 of the Army Act 1955.  Section 70 is the section under which each of these servicemen was charged.  The offences under the Firearms Act were civil offences and section 70 is the section which makes committing a civil offence an offence under the Army Act.  By subsection (3) of that section a person convicted by a Courts‑Martial of such an offence shall. 
"(b) ... be liable to suffer any punishment or punishments which a civil court could award for the corresponding civil offence if committed in England being a punishment or punishments provided by this Act or such punishment less than than the maximum punishment which a civilian court could so award, as is so provided."   
6.	That has to be read in conjunction with section 71, which sets out the punishments, which are in fact available to a Court‑Martial, which include the equivalent punishment for a civilian of imprisonment, but also specifically service punishments, such as dismissal, detention, which in the Army Act and other service Acts has a special meaning, and various other penalties, such as forfeiture of seniority, and so forth.
7.	The question, which is ultimately raised accordingly for this court to determine, is the extent to which the Court‑Martial in these cases, although not required by section 51A of the Firearms Act to impose the minimum sentence, were obliged to have regard to Parliament's intention in relation to such offences and the extent to which the Court‑Martial should in fact equate any sentence that it considered appropriate to the sentence which would otherwise be imposed were the Court‑Martial a civilian court dealing with a civilian.  
8.	It has been submitted on behalf of the appellants that the clear intent of Parliament must have been to exclude from the requirement to impose the minimum sentence, those dealing with servicemen.  Accordingly, the Court‑Martial should have approached the sentencing exercise on the basis that the cases, which predated the 2003 Act, should provide the guidance to the Court‑Martial in determining the appropriate length of sentence, and it is submitted in those circumstances that bearing in mind, in particular, the case of Bowman, the appropriate sentence for offences, such as those to which we will refer in detail later in this judgment, should be of the order of three years, or thereabouts, depending on the particular circumstances of each individual case.
9.	We have considered, with some care, that submission.  There is no doubt that Parliament expressly, and therefore we must assume deliberately, excluded service courts from the requirement to impose a minimum sentence.  That seems to us to provide only half of the answer to the question of approach.  The Court‑Martial have traditionally followed in general terms the sentencing policy and approach of civilian courts, in so far as that is appropriate within the context of serving servicemen, that context being the fact that there are available to Court‑Martial different sentencing options than are available to civilian courts.  
10.	Perhaps more important in many cases there may be particular reasons why a particular offence committed by a serviceman should be treated differently from such an offence committed by a civilian.  Nonetheless, it seems to us that section 70(3)(b) points generally in the direction of indicating that the appropriate sentence in a civil court will at least be a sensible starting point from which to operate, particularly where the Court‑Martial is considering a sentence of imprisonment, in other words, a similar form of penalty from the penalty which would be imposed by a civilian court.
11.	Turning then to the particular offence, with which we are concerned, it seems to us that the Court‑Martial was bound to have regard in determining the appropriate sentence to the fact that for a civilian the minimum sentence would be one of five years' imprisonment.  That would, it seems to us, have been the proper starting point.  In determining the precise sentence to be imposed in a particular case, then there would need to be consideration clearly of the circumstances, and in particular, the extent to which, in any given case, it could properly be said that the fact that the offence was committed in a service context was one which either mitigated or aggravated that starting point.
12.	We therefore turn to look at the facts of the individual appeals, bearing in mind those general remarks as to the proper approach, conscious, as we are, that we are dealing with sentences where the Court‑Martial had felt bound to impose the minimum sentence, not merely using the minimum sentence as an appropriate starting point, but not bound by it.
13.	The first appeal, which we propose to deal with, is the appeal by Phillips and Whitfield.  They were both Lance Corporals at the relevant time.  As far as Philips was concerned, he was charged with possession of a prohibited weapon contrary to section 51 ABA of the Firearms Act 1968 and he was sentenced to five years and eight months' imprisonment and dismissed from Her Majesty's service and reduced to the ranks.  Whitfield was convicted of doing an act tending and intended to pervert the course of public justice and he was sentenced to two years and eight months' imprisonment and dismissed from Her Majesty's service and reduced to the ranks.
14.	The facts of the offences, to which they have pleaded guilty, arose out of the fact that two Lance Corporals, it would appear, in their regiment had bought small arms in Iraq, specifically pistols and ammunition, very cheaply, and arranged for them to be smuggled back to Germany, the unit's base.  They then proceeded to sell them to other members of the unit.  Philips was one of their customers and he acquired a Champion Magnum pistol.  The agreed price was apparently 600 Euros.  He showed the gun to his friend and roommate, Whitfield.  
15.	The military police became aware of what was going on and arrested Philips.  Whitfield found out about the arrest and hid the pistol to avoid it being found by the police.  After some time he became concerned about the security of the hiding place and handed it to a co‑accused called Marlow, who hid it in his married quarters. Marlow did so and was himself subsequently arrested and charged.
16.	Philips, when he was interviewed, although initially reluctant to make admissions, eventually did admit that he had purchased the pistol from the member of his unit, to whom we have referred.  He told the police where it was, but they could not find it there.  That was because, of course, it had been moved by Whitfield.  Whitfield was then seen by the police and he eventually admitted that he had given the pistol to Marlow.  
17.	Ultimately the pistol, together with the magazine and eight rounds of live ammunition was recovered from a wardrobe in Marlow's  room. Marlow was acoordingly arrested.  He was interviewed and made a full and frank admission.  The circumstances in relation to Marlow were that, as was conceded by the Crown, once he appreciated that an inquiry was ongoing he determined to hand the pistol in. However, unfortunately in a sense for him, was prevented from doing so because he was put on 24‑hour guard duty at very short notice.
18.	Those were the relevant facts.  The only surrounding circumstance, which gave any indication of why Philips had bought the weapon, was that he had bought it shortly after he discovered or believed that his fiancee was having an affair, but it formed no part ultimately of the Court‑Martial sentencing just reasons that he had bought it for any purpose which would have involved its certainly immediate use.
19.	It was in those circumstances that they appeared before the Court‑Martial and were sentenced in the way that we have described.  It should be noted that as far as Marlow was concerned he was sentenced to six months' detention.
20.	The background of these two appellants is as follows: Philips is 23.  He only had one previous conviction for driving with excess alcohol.  His commanding officer did not, however, indicate that he wished to retain him in his unit.  There was a pre‑sentence report, which stated that he had no intention of using the weapon.  He acknowledged that it was wrong of him to have the weapon, but he did not consider that he had placed anybody at risk.  There were two character references.  Unfortunately for him his two commanders stated that he had a negative attitude towards the military and that may well have affected the commanding officer's indication that he did not wish to retain him in the unit.
21.	The mitigation before the Court‑Martial was that he had no clear motive for buying the weapon.  He certainly had not intended to use it.  He had admitted the offence within a relatively short time of having been questioned and the Court‑Martial had been hanging over his head since July 2005, that is a period of about 17 months.
22.	As far as Whitfield was concerned, it was clear that he had accepted that he had done wrong.  He was 25 years of age.  He had one previous conviction for affray and was sentenced to 28 days' detention.  The commanding officer wished to retain him in the unit.  There were eight character references.  He was described as highly capable, probably the best Lance Corporal in the company with enormous promise for the future.  He was further described as an exceptional soldier, utterly reliable and trustworthy.  He was said by one of the character witnesses to have been in the top three NCOs in the battalion and by another "the best NCO in the battalion".
23.	In addition to those positive character references, the mitigation that he had was that he had only been involved for a very short period of time.  He told the truth ultimately, although there had been an initial denial.  Again the Court‑Martial had been hanging over him since July 2005.  A character witness was called who said that his performance since the proceedings had been begun had been first class, in other words, since his arrest he had behaved impeccably.
24.	 Those were the facts in relation to those two appellants.  The third appellant, Shane Pleasant was a private aged 27 at the time.  He was convicted of possession of a prohibited weapon contrary to section 55(1) ABA of the Firearms Act 1968 and was sentenced to five years and four months' imprisonment and dismissed from Her Majesty's service.  He was another customer of the Lance Corporal, to whom we have already referred.  He had bought a light pistol for $200 dollars.  He had hidden the pistol, when he realised that there was an investigation into the sale of these weapons.  The pistol had ammunition with it and he had hidden it outside the camp perimeter.  He originally denied any knowledge of, or possession of, any prohibited weapons, but ultimately he did admit that he had bought the gun.  He originally said that he bought the gun in Iraq himself, but ultimately that he had bought it from the Lance Corporal, to whom we have referred.
25.	Originally the gun had been a blocked gun, but the blockage in the barrel had been removed and it was able to fire unmodified ammunition.  He was 27 years of age, as we have said.  He had some previous convictions, including being fined for an affray, but none others of any significance.  His commanding officer did not wish to retain him in the unit.
26.	He had apparently applied for discharge and should have been discharged in May 2006, had these matters not come to light.  There was a character reference which indicated that he was sensible, cheerful and confident with a positive attitude to life and was a good team member.  In mitigation it was said, on his behalf, that he had the weapon because he wanted a souvineer of his time in Iraq and had not thought about the seriousness of what he was doing.  The weapon had been concealed in a way which would, or should have ensured that it was not found and therefore he had not placed anybody at risk by reason of his possession of that weapon.
27.	We propose to deal with the appeals of those three, in relation to whom we have given the facts at this stage before turning finally to the appeal of McEneany, because of course these three offences were offences committed in similar circumstances within the same unit and the appellants were dealt with together.
28.	We have already given an indication in the general part of this judgment of the nature of the submission being made on behalf of these three appellants as to the starting point which the court should have adopted in relation to the firearms offences.  It is plain that as far as Whitfield was concerned, that the sentence that was imposed on him was informed by what was considered to be the appropriate sentence in relation to the firearms offence.  
29.	The circumstances, it seems to us, do not suggest that there were any special matters which could have justified the Court‑Martial from departing from the starting point, which as we have already indicated, was bound to have been the starting point of the minimum sentence, which would have been appropriate for a civilian convicted of a similar offence.  The Court‑Martial clearly took a serious view of  these offences and, in our view, quite rightly.  Offences in relation to firearms by servicemen must be considered as requiring the substantial sentences for the obvious reason that the possession of firearms by servicemen is a matter which unfortunately creates the very real danger that such firearms will, or may, find their way into the community and servicemen have relatively easy access to such firearms in a way which requires the court to consider a deterrent sentence for the very same reason that Parliament considered it necessary to impose a minimum term in relation to those convicted and sentenced in civilian courts.
30.	The sentencing remarks make it plain that the Court‑Martial, having determined, as we have indicated, incorrectly that the minimum sentence that it was obliged to give effect to the minimum sentence, nonetheless concluded, in our view, correctly, that the sentence should not be limited to the minimum sentence in the circumstances of these cases.  The particular fact, which was clearly of significance was that the three of them, as it was put in the sentencing remarks: checked
"to a greater or lesser degree, were at the end of a chain which started with the smuggling of lethal weapons out of Iraq for profit".   
31.	It seems to us that in those circumstances the Court‑Martial was bound, even if it had directed itself correctly in the way we have indicated as to its approach to the sentences, to have imposed sentences such as the sentences that were imposed upon Philips and Pleasant.  We can see no justification for concluding that they should have been treated in a different way from a civilian, who had been convicted of that similar offence.  In those circumstances the sentences were not sentences which could properly be described as manifestly excessive and accordingly their appeals will be dismissed. 
32.	 As far as Whitfield was concerned, we consider that the court was bound, as it did, to approach his sentence as being one which should equate to the sentence imposed for possession of the firearm, but because it was not possession of a firearm of which he was convicted, it was entitled to moderate that sentence and the question, it seems to us, in his case, is whether or not there was a disparity between him and Marlow who received the sentence, as we have indicated, of six months' detention.  
33.	Having considered with care the background matters that we have been provided with, we can see that there were circumstances in Marlow's case which could have justified a different sentence to that imposed in the case of Whitfield. Accordingly we do not consider that the sentence that was in fact imposed on Whitfield, which by itself is in our view a wholly proper sentence, can be moderated by reference to the sentence of Marlow.  We do not consider that this is a case of disparity which would justify our interfering with what is, as we have indicated, otherwise a proper sentence.  Accordingly we dismiss his appeal.
34.	We then turn to the appeal of McEneany.  The circumstances in his case are significantly different from the circumstances in the cases, which we have so far dealt with.  He was sentenced to five years' imprisonment for possession of a prohibited firearm, as were the others.  The offence was discovered when police searched the appellant's room in the mess barracks at Munster and found a Makarov 9 milimetre pistol, together with two magazines of ammunition.  The weapon was tested and found to be in working order.  The appellant was interviewed and accepted possession of the weapon which he had concealed in his room.  He stated that he had found it on the dock at Emden some time before while he was involved in the back‑loading of kit from Irag.

35.	In his case there was substantial evidence to show that he was suffering from significant Post Traumatic Stress Disorder at all relevant times.  There was before the Court‑Martial material from doctors, and from those who had known him in the unit, showing that it would appear as though he had indeed been suffering from Post Traumatic Stress Disorder for approximately ten years prior to the events in question.  That had resulted by the time of his commission of the offence of his behaviour being significantly erratic to the extent that it was likely that he would, in fact, had the offence not been discovered, in any event have left the service because of his medical condition.

36.	There was in addition evidence showing that he was under great stress domestically.  The position was that his wife had been so concerned by his behaviour that she had made it plain to him that he must take psychiatric advice.  He was in the process of doing so when, but she was unaware of that, assumed that he had failed to take any steps and left him.  

37.	The only evidence that the gun had opinion discharged was evidence from the appellant himself to the effect that he had on one occasion, in circumstances which suggest that he had in mind self‑harm, discharged it in the mess.  His description of how he had done so was confirmed by a later examination of the mess itself.

38.	He had the benefit of evidence from his squadron leader at the time, who had known him since 1992.  He described him as a "top soldier before the decline in his mental state".  The psychiatric evidence clearly indicated that his thought processes had been significantly affected by the Post Traumatic Stress Disorder, to the extent that he was not capable of thinking clearly at the time of this offence.

39.	The judge advocate in his sentencing remarks expressed great concern about the sentence that the Board felt it was  obliged to impose.  He expressly said at one point: checked
"Whilst no court enjoys being told what it must do, we find ourselves driven to the position, where there is no alternative in this case, but to impose a minimum sentence provided by Parliament, which carries with it of course dismissal from Her Majesty's forces."  
40.	That passage comes after the judge advocate had fully set out all the problems, which the appellant had faced, in circumstances which indicated that the Board had considerable sympathy with this appellant, but felt that it was not possible to conclude that any exceptional circumstances existed, which entitled it, in the terms of the statute, to depart from the minimum sentence.

41.	It is plain that the judge advocate directed himself and the Board properly in relation to the meaning of exceptional circumstances, but we have to approach this case on the basis that the court was not, as it felt, constrained by the statutory requirement to find exceptional circumstances.  The court was entitled, if it is thought fit, to depart from the minimum sentence. As we have indicated that was only the starting point from which the sentencing exercise should have begun in this case.  We feel that in those circumstances had this Court‑Martial directed itself in accordance with the approach that we have indicated should have been the correct approach, there is every reason to believe that it would not have felt itself bound to impose the sentence of five years' imprisonment that it did.  We consider we ought, in those circumstances, to reflect what appears to us to be the approach of the Court‑Martial had it properly directed itself, and that can properly be reflected by reducing the sentence in his case to one of three‑and‑a‑ half years' imprisonment.  

42.	Accordingly his appeal is allowed to that extent.