Neutral Citation Number: [2017] EWCA Crim 1509
Case No: 201700889/A3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 28 September 2017
 
B e f o r e:

LORD JUSTICE BEAN 

MR JUSTICE SPENCER 

MR JUSTICE GILBART 
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R E G I N A 
v 
DIEGO OSPINA
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Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street  London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
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Mr J Gifford‑Head appeared on behalf of the Appellant
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J U D G M E N T (Approved)

If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached.  This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 

1.	MR JUSTICE GILBART:  On 15th July 2016 in the Crown Court at Inner London, this appellant pleaded guilty to possessing a controlled drug of class B with intent, contrary to section 5(3) of the Misuse of Drugs Act 1971.  On 24th August 2016 he changed his plea to guilty on an offence of acquiring, using or possessing criminal property, contrary to section 329(1) of the Proceeds of Crime Act 2002.  On 16th September 2016 he pleaded guilty to, firstly, possessing, purchasing or acquiring, manufacturing, selling or transferring a prohibited firearm contrary to section 5(1)(aba) of the Firearms Act 1968, and secondly, to possessing, purchasing or acquiring ammunition without a firearms certificate or authority, contrary to section 1(1)(b) of the Firearms Act 1968.  He was sentenced to seven years' custody in a young offender institution on count 1 (that is the prohibited firearm count).   On the count of acquiring ammunition or possessing ammunition he received 12 months' detention concurrent; for possessing a controlled drug of class B with intent, eight months' detention consecutive; and on the criminal property charge there was no separate penalty.  
2.	The facts are as follows.  On 17th June 2016 the police executed a search warrant for drugs at the address where the appellant lived with his parents.  A trained police dog indicated an area at the end of the appellant's bed where the police found just under four kilograms of skunk cannabis.  Seven of the bags (approximately 500 grams in weight) were marked AK47, a strain of quite strong skunk cannabis.  Separate from those bags the police found a further one and a half bags containing 651 grams of cannabis.  
3.	The seven bags containing 500 grams had a street value of between £21,000 and £35,000.  The 651 grams had a street value of approximately £6,500.  In addition to the drugs, £3,040 was found in four containers.
4.	The police dog was also trained in the recovery of firearms and whilst the police officers were rounding up the cannabis the dog indicated the wardrobe.  There, underneath some clothing, the police found a Scorpion sub‑machine gun.  In a carrier bag tied around the muzzle they found five rounds of compatible ammunition.  
5.	The appellant was arrested.  He initially stated that he had found the firearm but later made no comment in interview.  Originally, the Crown Prosecution Service only charged him with an offence in relation to the firearm under section 1 of the Firearms Act 1968 , and not with a more serious offence, which in the view of this court wasan astonishing omission.  After time for reflection, and while the appellant was in custody, it was appreciated that that would have been an absurd under‑charging of a serious offence and he was then charged with the offence under section 5.  We shall return to the significance of that in due course.
6.	The appellant is now aged 20 and has no previous convictions.  There was a pre‑sentence report.  He denied that any of the items found belonged to him.  He said he had been pressured to look after them by an older associate.  He told the officer he knew what he was doing was against the law but felt he had no choice for fear of reprisals and could offer no information in respect of that person or persons.  He denied use of the firearm or having supplied drugs.  He showed some remorse and said he was sorry for his role in the offence.  The officer did not consider that there was dangerousness in the sense used in the Act, although he did pose a medium risk of causing serious harm.
7.	At the lower court, Mr Gifford‑Head, who represents Mr Ospina today, argued that this was a case in which the judge was entitled to find exceptional circumstances for the purposes of passing sentence.  It will be recalled that under section 51(a)(2) of the Firearms Act 1968 the court shall impose an appropriate custodial sentence or order for detention for a term of at least the required minimum term with or without a fine, unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.  The maximum penalty for the offence of possessing the prohibited firearm was one of 10 years.  The minimum term is one of five years.
8.	The judge in the lower court rejected the submission that there were exceptional circumstances in this case.  The argument put before her and also put before this court is in essence this.  The appellant was arrested.  He was charged with a section 1 offence and he was in custody with the expectation that he would be dealt with under section 1.  While in custody, he received no doubt unwelcome news that he in fact would be dealt with under section 5 with the consequent effect upon penalty.  We agree with the judge in the lower court that that was not capable of amounting to exceptional circumstances within the definition of the section in this case.  It is not a case where the appellant had already been sentenced on the basis of the first charge, and there was now an attempt by the prosecution to deal with him on a more serious charge with subsequent proceedings. By contrast, these proceedings had not been concluded.  
9.	Having dealt with that matter, one can now turn to the sentencing remarks of the judge.  She said that the appellant would be sentenced for possession of a firearm.  She referred to the minimum sentence of five years' imprisonment.  She referred to the possession of ammunition and the other offences to which he pleaded guilty.  Having referred to the facts, she said that the court accepted that only some of the cannabis was his and that he was holding the rest for a third party.  She found and she was entitled to do so on the evidence, that while the gun was not loaded there were five rounds of live ammunition with it compatible with the firearm.  In a basis of plea accepted by the Crown, referred to by the judge, he said he was a custodian of the firearm and drugs for a third person whom he was not prepared to name for fear of repercussions and the judge said she would sentence him on the basis that he was a custodian.  
10.	It was submitted, said the judge, that about a week before his arrest he was approached by somebody he knew from his street dealing who asked him to look after a package.  He thought it was cannabis but later discovered it was a firearm, cannabis and money.  The judge said the fact that the firearm was taken out of the bag and placed where it was found suggested that he knew full well what it was and how serious that weapon was.  
11.	The judge referred to the fact that there were no exceptional circumstances to depart from the minimum mandatory term in the sense of passing a lesser sentence.  She referred to his lack of convictions and to his employment history.  She stated that he would be given credit for his guilty pleas in respect of counts 2, 3 and 4 on the indictment and bore in mind that he pleaded guilty to the firearm offence.  
12.	She regarded the drugs offence as falling within Category 3 of class B in the sentencing guidelines.  She accepted that the larger quantity was provided by a third party and that fell under the heading of a lesser role, where the starting point was a high level community order with a range of a lower level community order to 26 weeks' custody.  But the 651 grams he had in his possession with intent to supply fell into a significant role with a starting point of one year's custody and a range of 26 weeks to three years' custody.
13.	In respect of the firearm, the court considered that the sort of weapon it was ‑‑ a sub‑machine gun which could only be used for unlawfulpurposes and was more serious than other weapons of its kind.  There was ammunition which was compatible with it.  There was no evidence the firearm was used.  It was recovered in his wardrobe, not on the street in public.  It was accepted that he was a custodian and that he was going to pass it on to a third party.  He possessed it for about a week.  There was no evidence that the weapon was discharged, any that any injury or damage was caused by it.  The judge said that sentence after trial would have been between nine and 10 years custody.  The court bore in mind everything submitted on his behalf and to some extent the relative delay in sentencing taking place, and his age.  Taking all that into account he was sentenced to seven years' detention for the firearms count, 12 months for the ammunition count, to which we have already referred, taking all matters into account on the possession of cannabis with intent to supply, considering the amount and the value and that he was responsible for only part of it, the sentence after trial would have been 12 months.  He was sentenced to eight months' detention consecutive to the seven years.  
14.	As to the grounds of appeal, Mr Gifford‑Head argues first that the starting point for the section 5 firearms offence was manifestly excessive.  Then he contends that the sentence was insufficiently discounted for the appellant's guilty plea.  He reminded us during the course of argument that under section 143 of the Criminal Justice Act 2003, this court must pass the least sentence possible in connection with an offence.  We shall return to that point presently.  He contended also that the court erred in finding that the mis‑charging of the offence did not amount to exceptional circumstances which would allow the sentence below the statutory minimum to be imposed and that overall the sentence was excessive.
15.	We have already indicated that we think there is no merit whatever in the last point about the question of charging..  We turn now to the question of the length of the sentence on the firearms offence.  As set out in the judgment of this court today in the case of Kepple, by my Lord, Spencer J, the harbouring of firearms for the benefit of others is a crime of the utmost seriousness.  We refer to the discussion by Davis LJ in Attorney General's References 4 to 8 of 2014 [2014] EWCA Crim 651 at 27 to 32, and to the observations of Lord Judge, Lord Chief justice, in Attorney General's Reference No 43 [2010] 1 Cr.App.R (S) 100 at paragraphs 2 and 3 which we cite:  
"2. The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community.

3. The purposes of sentencing are identified in section 142 of the 2003 Act. None of these purposes is pre‑eminent. All apply to every case, but as a matter of sentencing reality, whenever a gun is made available for use as well as when a gun is used public protection is the paramount consideration. Deterrent and punitive sentences are required and should be imposed." 

16.	Those who seek to use firearms are aware of the condign penalties that await them if they are found in possession of an illegal firearm.  They use others to look after them so that they can avoid detection.  But those who look after lethal weapons for others are responsible in some measure for the harm that some weapons cause or can cause and they too must expect severe sentences for looking after them for others.  We refer again to what was said in this court in Kepple by Spencer J on this point.
17.	Mr Gifford‑Head referred us to a number of other cases, all of which turn on their own facts.  In this case, this appellant was in possession of a very dangerous weapon indeed.  Contrary to the submissions made to us, the judge did address the questions asked in Avis and she reached the conclusion in our judgment that this was properly an offence where the sentence should be in the range that she indicated.  It was a working machine gun with ammunition to go with it and the appellant took it in and looked after it.  
18.	However, there is one point that Mr Gifford‑Head has taken which we consider has force and that is that if the headroom runs up to 10 years, and if the appropriate sentence after trial is one of nine years, then given the plea the sentence should be six years, not least in the context of s 143 of the Act, to which we have already referred To that extent, and to that extent alone, we consider that an alteration should be made to the sentence passed on count 1.  
19.	As to the cannabis, he was dealing in 650 grams of it and keeping the rest for another.  The judge was right to put this in Category 3.  That gave a starting point of 12 months.  Bearing in mind his plea, he got a sentence of a custodial sentence of eight months to be served consecutively.  No conceivable argument can be raised to show that that was manifestly excessive and to be fair Mr Gifford‑Head addressed none of this in argument.  It follows that instead of a total sense of seven years eight months' detention in a young offender institution, there will be substituted a total sentence of six years and eight months' detention in a young offender institution, because on count 1 the sentence has been reduced from seven years to six years.  

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