Neutral Citation Number: [2009] EWCA Crim 2555
Case No: 2009/03572/A7
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
HIS HONOUR JUDGE BOULTON

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/12/2009
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MRS JUSTICE RAFFERTY
and
MR JUSTICE HENRIQUES
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Between :

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	Peter Ralphs		
Attorney General Reference under section 36 of the
Criminal Justice Act 1988
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Mr D. Atkinson for the Attorney General
Mr J Gibson for the Offender 

Hearing dates : 5th November 2009
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Judgment

The Lord Chief Justice of England and Wales: 
1.	This is a Reference under section 36 of the Criminal Justice Act 1988 by Her Majesty’s Attorney General of a sentence imposed on Peter Ralphs (the offender) by His Honour Judge Boulton sitting in the Crown Court at Liverpool on 16 June 2009.
2.	The offender is 38 years old.  He was born in June 1971.  Although he has previous convictions, in the present context they are either relatively insignificant or stale.  They do not aggravate the seriousness of the offences now under consideration.
3.	Following a not guilty plea at the plea and case management hearing on 17 February 2009, the case was re-listed at the request of the offender, and on 3 March 2009 the offender pleaded guilty as follows:
(i)	Count 1 – Possession of a prohibited weapon, contrary to section 5(1)(a) of the Firearms Act 1968, namely a 9mm Browning calibre Ingram machine gun;
(ii)	Count 2 – Possession of a prohibited weapon, contrary to the same subsection, namely a 7.65mm calibre Skorpion machine pistol;
(iii)	Count 3 – Possession of expanding ammunition, contrary to section 5(1A)(f) of the 1968 Act, namely a twenty-nine 9mm Browning calibre hollow point cartridges, designed or adapted to expand on impact.
(iv)	Count 4 – Possession of expanding ammunition, contrary to the same subsection, namely forty-four 9mm Luger jacketed hollow point cartridges;
(v)	Count 5 – Possessing an accessory to a firearm, contrary to section 1(1)(a) of the 1968 Act, namely a sound moderator;
(vi)	Count 6 – Possessing ammunition without a Firearm Certificate, contrary to section 1(1)(b) of the 1968 Act, namely forty 9mm Browning full metal jacket cartridges;
(vii)	Count 7 – Possession ammunition without a Firearm Certificate, contrary to the same subsection, namely fifty-seven 9mm Luger full metal jacket cartridges;
(viii)	 Count 8 – Possession ammunition without a Firearm Certificate, contrary to the same subsection, namely fifteen 32” Automatic calibre full metal jacket cartridges;
(ix)	Count 9 – Possession ammunition without a Firearm Certificate, contrary to the same subsection, namely twenty-five 9mm Luger calibre full metal jacket cartridges with NATO compatibility.
4.	On 16 June 2009 the offender was sentenced to 6 years’ imprisonment on counts 1 and 2, the sentences to run concurrently, and to 3 years’ imprisonment on each of counts 3-9, all the sentences to run concurrently with each other and with the sentences on counts 1 and 2.  Accordingly the total sentence was 6 years’ imprisonment.  Appropriate credit was given for time spent on remand prior to sentence.
5.	The facts are accurately set out in the Reference itself.  
6.	The police executed a search warrant at the offender’s address 11 Parbrook Road, at 8am on 27th November 2008.  The weaponry which formed the basis for the counts in the indictment were all found in a tool box in the cupboard under the stairs.
7.	Count 1 related to a 9mm Browning calibre Ingram machine pistol.  This weapon had no magazine fitted, but the selector was set for the fully automatic mode which would have permitted the successive discharge of two or more missiles without repeated pressure on the trigger.  It functioned, when tested, in both automatic and semi-automatic modes.  The barrel of the gun had been externally threaded to allow a muzzle attachment to be fitted.  Although not loaded with ammunition, much of the ammunition that was recovered with it in the cupboard could have been fired from it.
8.	Count 5 related to a sound moderator.  It was marked Ingram M11 9mm Auto, and was suitable for use with the Ingram machine pistol (count 1).  It was classified as an accessory to a lethal barrelled weapon, and thus subject to the certificate procedure in section 1 of the Firearms Act 1968.  The Ingram machine pistol was test fired with the silencer fitted, and operated properly.   
9.	Count 2 related to a 7.65mm (.32 Auto) calibre Skorpion machine pistol.  The folding stock had been broken off.  Like the Ingram machine pistol, this gun was designed successively to discharge two or more missiles without repeated pressure on the trigger.  It functioned, when tested, in both automatic and semi-automatic modes.  The weapon’s selector switch was set for 20 when found, and the safety catch was off.  Moreover, this gun was loaded with a full magazine of 15 cartridges.  These cartridges were 32” Automatic calibre full metal jacket cartridges, and formed the subject matter of count 8 of the indictment.
10.	Count 3 related to twenty-nine 9mm Browning calibre hollow point cartridges.  These cartridges were designed to expand on impact.  12 of these were found with a magazine that could have been fitted to the Ingram machine pistol, 2 more were found in a box with other ammunition and 15 more were found with other ammunition in a sock.
11.	Count 4 related to forty-four 9mm Luger jacketed hollow point cartridges.  Like the Browning cartridges, these were designed to expand on impact.  8 cartridges were found in a bag with other ammunition, and the remaining cartridges were found in a further bag containing ammunition.
12.	Count 5 related to forty 9mm Browning full metal jacket cartridges.  5 of these were found with a magazine that could have been fitted to the Ingram machine pistol, 28 cartridges were found in a box of ammunition and a further 7 cartridges were found in a sock which also contained other ammunition.
13.	Count 7 related to fifty-seven 9mm Luger full metal jacket cartridges, 26 of which were found in a bag of ammunition and 31 of which were found in a further such bag.
14.	Count 9 related to twenty-five 9mm Luger calibre full metal jacket cartridges with NATO compatibility, 1 of which was found in one carrier bag of ammunition, 23 of which were found in a second such bag and a further cartridge was found separately in the same cupboard.
15.	The offender was arrested and interviewed on 27th November 2008.  During his interview he offered the explanation that he had been waved down in the street by a man he refused to name who asked him to “hold something for me”.  Without asking any further questions he agreed.  Later that evening there was a knock at his front door.  He opened it.  A different man was standing there.  Again he refused to name him.  The man handed him a drill box and told him that he would be back in the morning for it.  The offender did not look into the box.  He believed it was a drill.  He put it under the stairs.  He thought nothing more about it.  Initially he said he never touched any of the weapons or the ammunition, but he later stated that these were weapons involving a lad who was shot a couple of months earlier and that the guns had been on the street for a long time.  However he would not tell the police any more for fear for the safety of his children.  He asserted that he had not received any money for holding the tools, just that, as a joiner, he loved tools. He also said that he remembered handling one of the guns when he was shown them a few months earlier.   
16.	During the course of the hearing before the Crown Court reference was made to a written basis of plea.  Counsel on his behalf said:
“The prosecution would not dispute that the defendant was a minder of material, that is, as I understand, not in dispute, and the reason for his minding the material was explained in his interview.  So maybe that does not necessarily impinge on the sentence your Honour would otherwise impose.  As I understand it, the defendant has never claimed that he was under immediate threat and indeed in interview he acknowledged that at the time he was not threatened when he received the firearms and ammunition, he was threatened as such, but as he explained in his interview, there was a background of intimidation.”
17.	Counsel went on to address the question of the offender’s knowledge of the contents of the drill box.  Counsel observed that the offender had “said in interview that he did not know what was in the drill box but he suspected – well, he concedes that he knew that it was or had a clear suspicion that it was illegal.  So whilst not knowing the nature of what was in the box he knew that the box contained something illegal”.  The question of a Newton hearing was discussed.  
18.	At the end of the discussion the judge observed “I will make the same finding that he (was) only a minder, but it seems almost inevitable I would have to find that he knew perfectly well what he was minding and had done for a number of days”.  There was a short adjournment.  Counsel spoke to his client.  He recorded that the offender “would not seek to dissuade your Honour from sentencing him on the basis that your Honour indicated.  He maintained that he was a minder, and that does not seem to be in dispute…the history indicates that he was intimidated by the circumstances in which he found himself and the people who he believed were behind the delivery of the items…”
19.	A statement from Detective Chief Superintendent Stephen Moore, the Merseyside Police Strategic Lead for the Reduction of Gun Crime, was put before the judge.  This showed that between 2002-8 the number of firearm discharges had tripled, and a third of these discharges had caused injury.  He concluded:
“The nature of gun crime is chaotic and largely unpredictable.  Innocent members of the public face great danger due to the reckless discharge of weapons, married to the variables of poor marksmanship, defective ammunition and mixed quality weapons.  On occasion bullets hit homes and vehicles of innocent people.  On several occasions in recent times innocent people have died or been injured as a result of the criminal use of firearms.  The impact of these crimes is severe and leads to fear in our communities.”
20.	A pre-sentence report dated 26th June 2009, was prepared in relation to the offender by the National Probation Service.  The author of the report under the heading of ‘Offence Analysis’ observed:
“Though it was evidence Mr Ralphs was keen to distance himself from any participation within the illegal gun trade, he did not attempt to minimise the significance of his involvement and accepts his guilt in relation to having ultimately been found in possession of the firearms and ammunition in question.  This said, Mr Ralphs firmly denies any knowledge of being in possession of these items and thus he unknowingly committed the offence.”
These assertions were inconsistent with the basis on which it was agreed by the offender that he should be sentenced.
21.	Under the heading, ‘Assessment of the Risk of Serious Harm’, the author assessed the offender to be at medium risk of re-offending, with a medium risk of harm to the public.  
“…Although there is no evidence of any further violent behaviour since (1994) his involvement in this current matter and ultimately his vulnerability to the will of those with a more criminal agenda, has placed Mr Ralphs in a position where he has allowed himself to become involved in the serious process of spreading illegal firearms throughout society.”
22.	Sentencing the offender the judge described these weapons as “hideous”, observing that one gun was loaded, and the other, although not having ammunition attached to it, was in the automatic setting.  He also noted the large quantity of very dangerous ammunition.  He plainly had consecutive sentences in mind, because he observed “had you been the armourer of whoever was eventually to receive, whether received back or received from you, these weapons, you would be looking at sentences in double figures”.  The offender was “a minder of these weapons and …under a degree of pressure or coercion and, without making a finding, that, firstly, you genuinely were afraid to give information which would assist the police in tracing the owner or those people who placed them with you and also…that you had not had them for very long, however very long might have been.”  Given the guilty plea tendered at what was described as the first available opportunity the judge decided that concurrent sentences would be appropriate.
23.	The essential features of this case are self-evident.  The offender fell to be sentenced on the basis that he was the minder, but not the distributor or supplier of lethal weapons, which would eventually be returned to or on the orders of the unknown and still unknown individual who left them in the offender’s safe keeping.  As it happens he was caught before they had been in his possession for very long and before he returned or otherwise disposed of them.  Caught red-handed, the offender, a man of mature years, not a youngster, and not of previous good character, pleaded guilty, but not, as was suggested, at the earliest available opportunity. Indeed when he did offer a guilty plea, it was on a basis that the judge rejected.  Nevertheless it was appropriate for some allowance to be made for the guilty plea.  All that said this was a small armoury consisting of two lethal weapons together with ammunition capable of use in each weapon.  One was loaded, the other was fully set for automatic firing.  The armoury included a great deal of additional ammunition, and a silencer.
24.	In these circumstances it was submitted on behalf of the Attorney General that the sentence was unduly lenient: indeed it was submitted that the sentence should have been in double figures, which, if correct, required that, consecutive sentences should have been passed.  For the offender, the submission was that the sentence, even if lenient, was sufficient to reflect the offender’s overall criminality, not least in the context of the intimidatory pressures to which he was subject.    Concurrent sentences were appropriate to reflect the criminality involved in the possession of weapons by the offender in a single box.
25.	The effect of complicated legislation is that on conviction on indictment offences contrary to section 5(1) and 5(1A) of the Firearms Act 1968, as amended, are subject to a statutory maximum sentence of 10 years’ imprisonment.  At the same time, unless the circumstances are “exceptional”, offences contrary to section 5(1)(a)(ab)(aba)(ac)(ad)(ae)(af) and (c) and section 5(1A)(a) committed by an offender aged 18 or over at the date of conviction are subject to an appropriate custodial period for a minimum term of 5 years’ imprisonment.  Accordingly, ignoring exceptional circumstances (which do not arise for consideration in this case) the minimum appropriate custodial sentence was 5 years’ imprisonment.  Yet subject to orders for consecutive sentences, the maximum sentence was 10 years’ imprisonment.  Although the minimum sentence is not subject to any discount for a guilty plea (R v Jordan and others [2005] 2 CAR (S) 44) the maximum sentence should normally be discounted.  
26.	In short, therefore, the effect of statute in the vast majority of cases of possession of a firearm and ammunition is that the range of sentence available to the judge is very limited.  Subject to possible consecutive sentences (which we shall address shortly) the range is between 5 years and 10 years’ imprisonment, and in the event of a guilty plea to an appropriately reduced discount from the maximum of 10 years’ imprisonment. This leaves remarkably little room for case-specific flexibility.  The question for decision is whether the restriction on the range of sentences can properly be circumvented in situations like this, where the offender was found in possession of more than one gun, or, and no less important, a combination of guns and appropriate ammunition for use with them which came in to his possession on a single occasion and which were kept hidden and were found in the same hiding place, by an order for consecutive sentences.
27.	Two long-standing general principles are engaged. The first principle is totality.  The aggregate of the sentences must be appropriate to the offender’s criminality in the context of the available mitigation.  Second, consecutive terms should not normally be imposed for offences which arise out of the same incident or transaction.  R v Noble [2003] 1CAR(S) 312 provides a clear example: consecutive sentences for causing several deaths by dangerous driving were quashed.  Notwithstanding the numerous deaths there was a single act of dangerous driving.  However there is sometimes a difficulty in deciding whether criminality under consideration may or may not be regarded as a single incident. The fact that offences are committed simultaneously is not necessarily conclusive.  Thus R v Fletcher [2002] 2 CAR (S) 127 exemplifies orders for consecutive sentences in the context of indecent assault and threats to kill which arose out of the same incident.    
28.	Examples abound of occasions when consecutive sentences are justifiably imposed.  Obvious examples include a robbery committed with the use of a firearm, or violent resistance of arrest, or offences committed on bail: in all these examples however distinct offences are committed in circumstances where the offences, although distinct, can properly be said to increase the relevant criminality.  A further principle, identified by Dr David Thomas in his monumental work, Current Sentencing Practice, Vol 1 at A5-J is that a court “may impose consecutive sentences for offences committed on the same occasion when there are exceptional circumstances which justify a departure from the usual practice”.  (See R v Wheatley [1983] 5CAR (S) 417 (a case of a driver driving without insurance but after consuming excess alcohol) applied in R v Dillon [1983] 5CAR (S) 439, R v Lawrence [1989] 11 CAR (S) 580 and R v Hardy [2006] 2CAR (S) 4).  Our attention was also drawn to R v Jameson and Jameson [2009] 2 CAR (S) 26, a recent decision of this court, where it was stated that: 
“…A sentencing judge should pass a total sentence which properly reflects the overall criminality of the defendant and the course and nature of the criminal conduct disclosed by the offences for which he stands to be sentenced, while always having regard to the principle of totality.  However, the imposition of concurrent sentences for like offences may not be appropriate where, as here, the statutory maximum sentence for an offence prevents the proper reflection of these matters”.
However the problem with the deployment of this decision as authority for the proposition advanced on behalf of the Attorney General is that the offences of administering a poison or noxious substance involved a number of different occasions when acid was sprayed in faces of members of the staff of premises from which the appellants were stealing.  These were “like” offences which did not constitute a single incident.  Where offences are indeed distinct or separate events, the court is entitled to order consecutive sentences to reflect the defendant’s criminality.
29.	When we invited Mr Atkinson to draw our attention to any sentencing decision which provided direct support for his submission that in this particular case consecutive sentences were appropriate, he was unable to do so.  The problem is simple.  In the context of a narrow range of available sentencing powers, and in particular the statutory maximum sentence, we are in reality being invited to circumvent the statutory maximum sentence on the basis that we believe it to be too low and to achieve our objective by disapplying well understood sentencing principles of which Parliament must be deemed to have been aware when the statutory maximum and minimum sentence was fixed.  Tempting as it is to do so, that is a step too far.
30.	In R v Wilkinson and others [2009] EWCA Crim 1925 attention was drawn to some of the problems created by the different statutory structures which govern the sentencing arrangements which apply to firearms offences and Class A drug offences.  This case provides another.  If this offender had been in possession of Class A drugs with intent to supply them (as on his plea he was in possession of these firearms with that intent) he would have been liable to a maximum sentence of life imprisonment.   The problem must be addressed by legislation.
31.	Notwithstanding the constraints on the sentencing powers, our conclusion is that the present sentence was unduly lenient.  The particular aggravating features of the case are that offender was in possession of more than one lethal weapon with ammunition fit for use in both lethal weapons, together with a silencer.  The problem of pressures and intimidation are real, but those who provide a safe hiding place for weapons like these make a significant and distinctive contribution to the use of firearms on the streets and elsewhere.  The offender was caught red-handed, and even if, in accordance with the definitive guideline relating to the guilty plea, that did not deprive him of some credit, nevertheless the plea was tendered in circumstances which , even if regarded as the first available opportunity, asserted a lower level of criminality than the judge was prepared to accept.  These considerations lead us to conclude that the sentence should be increased from one of 6 years’ imprisonment to 8 years’ imprisonment.