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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Allen, R. v [2011] EWCA Crim 1095 (15 April 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/1095.html Cite as: [2011] EWCA Crim 1095

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		15th April 2011

1. MR JUSTICE TREACY: This is an application made on behalf of James Edward Allen. Mr Allen appeared before Inner London Crown Court on 11th March 2011, having pleaded guilty on a previous occasion and was sentenced to a term of 2 years' imprisonment. He was sentenced for four offences: count 1 involved possession of a prohibited firearm contrary to section 5(1)ABA of the Firearms Act 1968. He received a 2-year term of imprisonment for that offence. The firearm involved was a single shot revolver. A sentence on conviction for this matter ordinarily requires a mandatory minimum sentence of 5 years unless exceptional circumstances are shown to exist.
2. In relation to count 4, possession of ammunition when prohibited, a term of 8 months' imprisonment to run concurrently was imposed. The ammunition was 50 rounds of ammunition, which were usable with the revolver mentioned in count 1.
3. Count 5 related to an air rifle and again was a further count of possession of a firearm when prohibited and another 8-month term of imprisonment to run concurrently was imposed. Count 6 related to a stungun, the charge was one of possession of a prohibited weapon and a 9 month concurrent term of imprisonment was imposed. The matter has been referred to the Full Court by the Registrar.
4. The story starts as long ago as 1969. This applicant was then convicted of robbery and firearms offences and sentenced to eight-and-a-half years' imprisonment. By reason of that conviction he is prohibited from possessing a firearm or ammunition for life.
5. On 27th May 2010 police went to the applicant's business premises in Clapham. They comprise an office, a garage and a scrap yard area but it is plain from photographs which we have seen that those premises also housed a large motorcycle collection and have been transformed into a museum of memorabilia and collectible items accumulated by this appellant. It is also clear that this appellant for the past 18 years has chosen to sleep at those premises rather than at his marital home.
6. After the police's arrival with a search warrant under the Firearms Act, they were accompanied by the applicant to the 1st floor of the office. The applicant opened a desk drawer and showed the police an imitation handgun. This was a blank firing pistol which was not represented by a count on the indictment, the applicant said he kept that in case anyone threatened him. In the middle drawer of the desk was found the item mentioned in count 6, the stungun. The applicant knew what it was. When it was examined it was found to be in working order, save that its batteries needed replacement. Once the batteries were replaced it discharged high voltage electrical impulses.
7. In the same drawer was found the firearm which was represented by count 1. This was a 31-centimetre long .22 calibre long rifle single shot revolver. There was an adaptation for firing .22 calibre long rifle cartridges.
8. Examination of this revolver showed that it could not be fired in its present condition but an expert used tools to clear some displaced metal from the chamber until it was possible to seat a cartridge in the chamber and it was then capable of being fired. The firing pin had to be removed after each shot in order to rotate the cylinder. As already stated there were some 50 live cartridges capable of being used with this revolver. In the corner of the office there was an air rifle which was found capable of firing air gun pellets. Finally, there was a ball bearing gun found in another drawer but that did not form any count on the indictment.
9. In interview, the applicant informed the police that he had some 8 years previously been shot following an argument with a customer and so he had purchased the stungun for protection. He said that he did not realise it was illegal to possess such an item. He said he had wanted to have the revolver referred to in count 1 in order to display it on the wall of his office. He had bought the gun and its ammunition some 3 years earlier.
10. As far as he was concerned, he had not bought any of the guns with the intention of using them, he merely wanted to frighten people who might want to rob him. He accepted that he was not allowed to possess a firearm because of his previous convictions.
11. The premises were not fitted with any burglar alarm at the time the police executed the warrant.
12. This appellant is 78 years of age. In addition to the sentence which he received in 1969, he was before the court in 1982 for an offence of handing stolen goods but since that time has not been convicted.
13. There was before the sentencing judge a pre-sentence report which stated that the applicant was motivated by self protection. It went on to say that he was aware that he was not permitted to have any firearm due to his past offending and observed that the applicant was concerned at the impact of custody on his wife.
14. There were medical reports before the court. There was a letter from the Chaucer Hospital indicating that an MRI scan showed that there were mild age related changes to the applicant's brain consistent with and indicative of his being in the early stages of dementia. There was also a letter provided to the court by Dr Allen who is a nephew of the applicant and not his general practitioner, but whose evidence was accepted as genuine and reliable by the sentencing judge which summarised the applicant's medical history. It shows that he suffers from ischaemic heart disease, prostate trouble and hypertension. Likewise there was a medical summary of the applicant's wife's medical condition, showing that she suffers from heart disease, diabetes and chronic renal impairment among other ailments.
15. The sentencing judge had before her some nine character references in impressive terms speaking of charitable work which this applicant had performed and testifying to his good character generally. Today we have received further materials: a letter from the applicant's daughter, Laura Allen, describing the effect of the applicant's imprisonment, particularly upon her mother and a report from the probation service at HMP Wayland commenting on the applicant's response to incarceration.
16. The grounds of appeal submit that in the light of the variety and abundance of mitigating circumstances in the case, this was a case where the normal need for deterrence which is reflected in an immediate custodial term did not apply. We will say more about those submissions later.
17. In passing sentence the judge was properly referred to the guideline case of R v Rehman [2006] 1 Cr App R(S) 77 and also the recent cases of R v Shaw [2011] EWCA Crim 167 and R v Danks [2011] EWCA Crim 72, which are recent illustrations of the application of the principle in Rehman.
18. In passing sentence the judge observed that possession of a firearm was serious and all the more so if there was more than one. The danger was greater if there was ammunition. The judge spoke of rightly growing public concern about the increasing circulation and the use of illegal firearms and pointed out that in this case there were no security measures in place and thus that there was a real danger of the weapon and ammunition falling into the wrong hands. The judge raised the question of why the applicant had had ammunition if all he intended to do was to display the firearm or use it to frighten intruders.
19. However, the court took the view that there were exceptional circumstances which enabled the court to depart from the 5-year minimum term. Those circumstances identified by the judge were the applicant's age, his guilty plea, the fact that the revolver could not be used in its present condition, the fact that the stungun could not be used in its present condition and the applicant's poor health. Those were identified as being features of particular significance. Accordingly, the judge was prepared to find exceptional circumstances but felt unable to conclude that a custodial sentence was not appropriate, having regard in particular to the fact that the applicant had ammunition for the revolver and that he had a significant previous conviction for firearms offences albeit that that was in 1969.
20. Mr Pownall has been critical of the sentencing judge, submitting that the items identified by the judge as reasons why a custodial sentence was appropriate were simply insufficient. It is right to observe that those were matters which the judge said that she was having regard to "particularly" and therefore they cannot have been an exhaustive list of the considerations upon her mind. In any event, this court is free to analyse the circumstances and consider the matter more widely if it is appropriate to do so.
21. The legislation which prescribes a minimum term unless there are exceptional circumstances, is intended to be Draconian in implementation and deterrent if effect because of public concern over rising gun crime and the danger posed by the possession of firearms. The guidance given in Rehman demonstrates that a holistic approach must be taken as to the question of whether exceptional circumstances exist. The mitigation of the minimum term by virtue of the provision for exceptional circumstances is designed to cater for cases where otherwise the punishment would be disproportionate and arbitrary. In this case the judge was persuaded that there were exceptional circumstances. They enabled her to go below the minimum term and impose a sentence of 2 years only. The case was presented before her at some length and with extreme care. No stone was left unturned by Mr Pownall representing the applicant. The judge's ruling is analytical and careful. She considered all the facts in detail. She was appraised of the relevant law and plainly did not misapprehend it. She considered examples of recent practice in Shaw and Danks; each case of course is fact specific but in Shaw's case, the applicant was 76 years age and in poor health.
22. The contention today is that she did not go far enough in acting upon the finding of exceptional circumstances. The judge should, it is submitted, have imposed a non-custodial sentence or at least one which did not involve immediate imprisonment. It seems to us that of relevance to be set alongside considerations of the applicant's age and health, the health of his wife and the whole of his personal circumstances and other factors favourable to him, such as his guilty plea, his many positive character references and his clean record for nearly 30 years are certain matters relating to the offending. These include (i) that the applicant was aware of the prohibition on the possession of firearms (ii) he was unlawfully in possession of more than one firearm or weapon. (iii) all three firearms or weapons were usable or capable of being made usable without great effort (iv) there was substantial live ammunition available for the single shot revolver. (v) the firearms had been held for some considerable time at the premises and (vi) the firearms were not kept in a secure place such as a safe and the premises were not alarmed. (vii) the applicant's own case was that the premises were at real risk from criminal intruders.
23. We have no doubt at all that, had this appellant been a younger man without the matters personal to him, there would have been no question of this case falling within the exceptional circumstances category. The essential question for us is whether we consider that the judge fell into error in failing to weigh all the factors in this case even more favourably to the appellant. We are conscious that we should only interfere with the conclusion of the court below if it was clearly wrong (see paragraph 14 of Rehman). It does not seem to us that the judge's conclusion in relation to immediate custody can be so characterised. In our judgment, the offence related factors we have identified above, even when looked at as part of the whole picture are significant and aggravating and outweigh the favourable personal matters by some margin. However, we have gone onto consider the additional information which has been placed before us today. We have been impressed by the letter from Laura Allen which reminds us and informs us of the circumstances in which this applicant's aged wife is left. She is left at home in London, in the family home; she has since the imprisonment of the appellant been receiving treatment for depression. She is not eating or sleeping well. There are very serious difficulties in the way of her travelling a considerable distance to the prison where this appellant is housed. We have seen evidence which we accept of an incident which took place on 12th April 2011 which suggests that the applicant's wife's distress is such that she took an overdose of tablets. All of those matters we accept as genuine. They seems to us to be relevant considerations to be borne in mind. They are not matters which were available to the sentencing judge.
24. Moreover, we have considered further the evidence which relates to the applicant's mental condition and the onset of dementia and the impact that that will have on him in serving a custodial sentence.
25. In our judgment whilst a sentence of custody was appropriate in this case and in this respect the sentencing judge did not fall into error, we think that a reassessment of the factors which were before the judge, taken together with the additional information provided with us today is such that a sentence of 2 years was manifestly excessive. We consider that a just result in the particular circumstances of this case which are exceptional, is one which reduces the sentence imposed from a term of 2 years' imprisonment to a term of 12 months. To that extent this application is successful.
26. We will now grant leave and having granted leave, we will allow the appeal by the reduction of the custodial term to one of 12 months.