No: 200805841 B3 
Neutral Citation Number: [2009] EWCA Crim 472
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 19th February 2009

B e f o r e:

LORD JUSTICE RIX 

MR JUSTICE WALKER 
 
MR JUSTICE CALVERT‑SMITH 
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R E G I N A 

v 

DAVE DEVON SMITH
 
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Mr R Germain appeared on behalf of the Appellant
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J U D G M E N T
1.	LORD JUSTICE RIX:  On 1st October 2008 at the Crown Court at Inner London the appellant, Dave Devon Smith, pleaded guilty to possession of a prohibited firearm on re‑arraignment and on 2nd October 2008, before Mr Recorder Wilmot‑Smith QC, was sentenced to two and a half years' imprisonment, with a direction that 172 days spent on remand should count towards the sentence.  He now appeals against sentence by leave of the single judge.  
2.	The facts of the case are as follows.  On 11th April 2008 the appellant attended at Brixton police station to comply with bail conditions.  He was then arrested on suspicion of possession of a firearm, to which he replied "I ain't got no gun".  He was taken into custody and sets of keys for his address and another room he had rented were taken from him.  That room that he had rented was searched and the officers found a locked suitcase in it.  The lock on the case was broken by the officers and inside were seven bags, one of which was found to contain a converted blank firing pistol wrapped in a sock.
3.	When interviewed, the appellant said he owed drug money to a man called Kirk, who had told him he would forget the debt if he rented a particular room.  The appellant said that Kirk had given him the money for the room and then come round to his usual home address and had given him the locked suitcase and told him that if he opened it he would lose his life.  He added that he had then taken the suitcase and some of his belongings round to the room he had rented, but had only slept there one night.  He accepted that he knew Kirk and most of his gang had guns.
4.	The appellant was born on 23rd August 1980 and is now 28.  He is lightly convicted.  He has two convictions for possession of in one case cannabis and in the other case crack cocaine.  A psychiatric report dated 21st September 2008 stated that he had a history of significant personal trauma and was known to suffer from a psychotic illness then in remission.  He also had a history of multiple substance misuse and dependence.  He would benefit from further treatment and follow up by mental health and substance misuse services.  His misuse of drugs aggravated his psychotic illness.
5.	On the day of sentence the learned recorder first held a Newton hearing to enquire into that part of the appellant's case that he did not know of the gun within the locked suitcase.  In his ruling on the Newton hearing the learned recorder said that the appellant, as he now is, presented as a man of limited intelligence, clearly under the influence of anti‑psychotic prescriptions and not able to look after himself, in the sense that he possessed a personality which was not capable of functioning in society with much force of will.  The learned recorder accepted the appellant's evidence that he did not know what was in the suitcase, but the learned recorder did not accept that part of his basis of plea and his evidence at the hearing that he did not think that there was a gun in the suitcase at all, that he had no reason to believe that there was a gun at all.  That the learned recorder did not accept.  The possibilities of what were in the suitcase, the appellant accepted, were papers or forged documents or drugs; at any rate, contraband of some kind.  The learned recorder also remarked that his mental condition and personality were such that the conclusion could be drawn that he was "a sitting duck for any preying criminal".  The learned recorder then referred to his plea of guilty, which he accepted as effectively a plea at the earliest opportunity.
6.	The learned recorder concluded his ruling, in terms which were essentially part of his sentencing remarks, by saying that although the appellant must have known that there was a risk of firearms, he did not know ‑‑ and the learned recorder must have meant "did not know for certain" ‑‑ that there was a firearm within the suitcase and there were other probabilities, including drugs.  In those circumstances, and given the short time of the suitcase in his possession and his mental condition, the learned recorder concluded that there were exceptional circumstances which entitled him to say that he need not impose upon the appellant the otherwise mandatory minimum sentence of five years' imprisonment under section 51A of the Firearms Act 1968.
7.	In his later sentencing remarks the learned recorder repeated his view that there were exceptional circumstances justifying him in disapplying the five year mandatory sentence and otherwise repeated the views that he had expressed in his Newton ruling.  He observed that the circumstances in which the appellant had taken possession of the suitcase with the gun in it were not without blame, and he also observed that the courts must be careful to ensure that there is no reward in relation to the possession of firearms of those who willfully keep themselves in the dark by not opening a sealed box which contains a gun within it.  He referred to the previous convictions, describing them as trivial, to the appellant's mental illness, to the short period of time that the gun was in his possession and to the circumstances in which he came to possess it, which he described as those of "acute duress".  In the end he determined a sentence of 30 months, two and a half years' imprisonment.
8.	On this appeal Mr Germain submits that in all the circumstances this was a manifestly excessive sentence and that the learned recorder gave insufficient weight to his finding that the appellant did not know about the gun, also his early plea, his mental illness and malleable personality.  Mr Germain submitted that the learned recorder's reference in his sentencing remarks to "those who willfully keep themselves in the dark" were not applicable to the present appellant given both the learned recorder's Newton findings and the presence of the duress.  Mr Germain also observed that the learned recorder did not specifically advert in his sentencing remarks to the early plea.
9.	On this appeal we are not concerned with the decision which the learned recorder first had to make, which was whether there were exceptional circumstances permitting him to come below the otherwise mandatory term, even on a plea of guilty, of five years: see R v Jordan [2005] 2 Cr App R (S) 44.  We consider that the learned recorder's failure to mention again the early plea and his sentencing remarks when he had a little earlier emphasised that he was going to give to the appellant full credit for his guilty plea, which he considered had effectively been given at the first opportunity, does not undermine his sentence.  Nor do we think his reference to "those who willfully keep themselves in the dark" undermines his sentence.  We regard that as either a general observation relating to those who keep containers for other people which they do not look into, or, if they refer specifically to the appellant, what the learned recorder had in mind was that, as he had himself just said, the appellant was not without blame and did have reason to believe that there was the risk of a gun in the box, findings which the learned recorder must have had in mind in the light of his observations in the Newton ruling.  
10.	The closest case which Mr Germain puts before us in circumstances where a judge comes below the five year minimum sentence is the case of R v Edwards [2007] 1 Cr App R (S) 111.  In that case the mother of three young children appealed successfully against a five year minimum sentence and had a sentence of two years imposed by this court on the basis of a series of factors which are set out in paragraph 20 of the judgment of Mackay J.  In that case the appellant did know of the gun but the gun was not in working order.  She too was under duress and there were other strong factors of mitigation in her favour.  There are points about the facts in that case and in this case which distinguish the cases both ways, upwards and downwards, but nevertheless we agree with Mr Germain's submission that this is at any rate the closest case that can be put forward.
11.	Nevertheless, we consider that it cannot be said that the sentence in this case of two and a half years is manifestly excessive.  It does not differ materially from the sentence of two years in the case of Edwards.  In the present case, although the appellant had said that he did not know for certain that there was a gun in the locked case, nevertheless he had reason to believe, as the learned recorder found, that there was a risk of the gun there, and he knew that he was dealing with a gang of drug dealers who used guns.  The learned recorder, having held a Newton hearing, was in a good position to adjust his sentence carefully by reference to the particular degree of guilty knowledge or blame to be attached to this appellant.  He took careful regard of all his circumstances, including his medical condition, his compliant personality and the duress to which he was subject.  In all those circumstances we would not think it right to interfere, in a context where the statutory provisions emphasise the need for deterrent sentences, with the ultimate decision of the learned recorder.  For those reasons, this appeal is dismissed.