[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Davidson, R. v [2016] EWCA Crim 1626 (14 September 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/1626.html Cite as: [2016] EWCA Crim 1626

[New search] [Printable RTF version] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14th September 2016

1. LADY JUSTICE SHARP: On 17th June 2016 in the Crown Court at Carlisle, at the plea and trial preparation hearing, Lewis Davidson, the offender, pleaded guilty to possessing a disguised firearm contrary to section 5(1A)(a) of the Firearms Act 1968 ("the Firearms Act"), for which he was sentenced at the same court on 15th July 2016 by the Recorder of Carlisle to 12 months' detention suspended for two years, with a requirement to complete 25 days of a rehabilitation activity.
2. The Attorney General now applies for leave to refer that sentence as unduly lenient under section 36 of the Criminal Justice Act 1988. We give leave.
3. The offender pleaded guilty at the PTPH to three other offences, for which no separate penalty was imposed at the sentencing hearing. These were theft contrary to section 1(1) of the Theft Act 1968, offering to supply a controlled drug of Class B contrary to section 4(3) of the Misuse of Drugs Act 1971, and possessing a controlled drug of Class B contrary to section 5(2) of the Misuse of Drugs Act 1971. A plea of not guilty to a further count alleging possession of an offensive weapon, a police style truncheon, was entered, but no evidence was then offered on that count on the ground that it was sufficient for the offender to be dealt with on the counts to which he had pleaded guilty.
4. The offender is now 19 years old. He was 18 at the time of these offences and when sentenced.
5. The facts fall within a relatively narrow compass. At about 7.30 pm on 17th March 2016 a Mr Shaun Boustead was inside a house on Friargate, Penrith, when he saw the offender drive along Friargate and shop his car opposite the job centre on the street. Mr Boustead had recently heard that the offender was telling others that Mr Boustead owed him money and he went outside and approached the offender. During the conversation the offender asked Mr Boustead if he wanted to buy cannabis from him. The offender gave prices for the drug as "a tenner a gram". Mr Boustead declined that offer. The offender asked Mr Boustead if he had any money with him. Mr Boustead confirmed he did and produced two £10 notes from his pocket as proof. The offender got out of his car and snatched the cash from Mr Boustead. He produced a four to five inch knife in his left hand. In the opinion of Mr Boustead, the knife was produced to prevent him from getting his money back. Mr Boustead ran away and reported the incident to the police.
6. Later that night the offender was stopped by the police on the Ullswater Road, Penrith, while driving his car. He was detained and told he was going to be searched for a knife. He said, "I haven't got a knife ... he owed me 20 quid from ages ago and wouldn't give me it. It was the only way to get it to rob it off him".
7. The offender was searched. A small amount of cannabis in a snap seal bag was found in his coat pocket. His car was also searched and two other items from it were seized. One was a disguised stun device, a taser, and another was an extendable police-style baton. Both were hidden inside the fascia in the front of the vehicle, which was very loose and easy to remove.
8. The taser device was in the void under the leather gearstick cover of the central console. It was constructed in the style of a mobile telephone and had a static picture stuck on the front of it.
9. An examination revealed that the device was a functional electronic stun device, displaying the same characteristics as a police taser. The device was operated by a slide switch on one side and a press button in the same location. When they were pressed together an arc of electrical current was seen appearing between the barbs.
10. The extendable police-style baton was found inside the heater vents on the driver's side of the dashboard.
11. No knife or charging device for the taser was recovered from a search of the offender, his car or his home.
12. The offender's car had been searched some three weeks earlier on 26th February 2016. The void under the gearstick was then found to be empty. It is clear from what the offender was subsequently to say that he had brought it into and concealed it inside his car.
13. The offender was taken into custody. He had with him three £10 notes and two £20 notes.
14. In interview he denied the allegations concerning the drugs or any knowledge of the police baton. He was not asked any questions about the taser.
15. The offender has four previous convictions: two for theft and handling stolen goods in 2013, for which he received a referral order; a further offence of theft in 2013, for which his referral order was extended; and, most relevantly for present purposes, for the offence of threatening someone with a bladed article in a public place in 2015, for which he was made the subject of a youth rehabilitation order.
16. The pre-sentence report for the sentencing hearing described the offender as being "a medium risk of serious harm to any associate who may upset or anger him". This risk was likely to be reduced if the offender engaged in work to explore his understanding of consequences and to improve his decision-making skills. The offender was assessed as being suitable for a suspended sentence with community based requirements.
17. As to what the offender was saying at that stage about the taser, the report said as follows:

"Of the weapons found in the car, [the offender] states that he had discovered the Taser around a month previously; he describes the edge of the gaiter being loose, and trying to tuck it in and finding what he initially believed to be a mobile phone. He says that he considered handing it in under the police amnesty scheme, but thought that his previous conviction for possession of an offensive weapon would raise suspicions and decided against doing so. When asked why he did not dispose of the device, Mr Davidson stated that he was concerned about the consequences of someone finding it, yet, somewhat conversely, said that he did not think that having it was a particularly serious offence."

18. The facts of the various offences were opened in full to the judge at the sentencing hearing and the relevant statutory provisions, to which we shall refer shortly, were drawn to his attention. The prosecution were not in a position to identify the effect the device would have had if used on a person, but it was accepted that it was not a lethal weapon. An issue was raised between the prosecution and defence as to whether the device was charged when it was seized, but the judge declined to adjourn the hearing to obtain evidence on the point and sentenced the offender on the basis that the device was charged.
19. The offence of possessing a disguised firearm contrary to section 5(1A)(a) is caught by the minimum sentence provisions contained in section 51A of the same Act. Section 51A was inserted into the Firearms Act by section 287 of the Criminal Justice Act 2003. Section 51A provides that:

"The court shall impose an appropriate custodial term (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."

20. By virtue of section 51A(4) of the Firearms Act, the required minimum term for an offender aged 18 years of age or over is one of five years' "imprisonment" (although in the offender's case this would have been a sentence of detention in a young offender institution).
21. Although possession of a taser device itself is not caught by the minimum sentence provisions, possession of the same device in a disguised form is: see R v Brereton [2012] 2 Cr App R (S) at 69. The court in that case set out the relevant statutory provisions, including section 5(1) of the Firearms Act and section 51A(2), to which we have already referred. Irwin J, giving the judgment of the court, said this at paragraph 8:

"... as a matter of law, there is a specific offence for a weapon designed to discharge a noxious liquid, gas or 'other thing'. This weapon [a disguised taser] was designed for such a discharge, and thus possession of this weapon contravenes section 5(1)(b). However, this weapon was disguised as a mobile phone. Despite the fact it is not a firearm in the ordinary sense of firing a projectile, Parliament has provided that such a disguised weapon falls within the minimum sentence provisions".

22. During the course of the sentencing hearing the judge was concerned to discover why the offender was in possession of the device. He was initially told by defence counsel that it was in the car when the offender acquired the car. The judge made it plain, however, that he did not accept this was true and he asked defence counsel to take further instructions. The judge was subsequently told that the offender had been prevailed upon to harbour it for an associate he refused to name and he had had it for between a month and six weeks. Counsel said "he is absolutely resolute that he is not prepared to name the person involved".
23. Defence counsel identified the following matters as exceptional circumstances which he submitted would justify the court not imposing the minimum sentence: in relation to the offender - the offender's age, his immaturity, the support of his parents, and the effect that a sentence of five years' detention would have upon him; in relation to the offence - the absence of a charging device, the fact that it was not one of the obviously life-threatening devices that the Act was principally designed to remove from circulation, and the absence of evidence that the device had actually been used.
24. Defence counsel also drew the court's attention to the decision of this court in Craggs [2012] EWCA Crim 3062, in which the Court of Appeal quashed the minimum sentence imposed upon a young appellant in possession of a stun gun and substituted a sentence of ten months' detention in circumstances in which that weapon was not charged and the appellant had no charger.
25. In his sentencing remarks, the judge said he made the following findings about the device:

"... it was not a mobile phone and you knew it was not a mobile phone. They found it underneath the gaiter of the gear lever of your car. It was an electronic stun device. It was functional; the battery was low. It was a prohibited weapon.

There is no evidence, however, that it was lethal. You did not have the charger for it. You had never used it."

He went on to say this:

"I am invited by the Court of Appeal after the authorities of R v Ramsen [sic] and R v Craggs to take a holistic approach, to look at things in the round and make sure I do not pass a sentence that is arbitrary or disproportionate.

I have already referred to various features about the weapon, for example not being lethal. I will not repeat those again. But there are also other matters which I have to bear in mind, quite apart from those in R v Avis, and those relate to your personal mitigation.

You were 18 and you [are] 18 now. You are not of good character, in fact at the time of this offence there was a week to run on the youth rehabilitation order. But on the other side of that you had completed all the conditions of that youth rehabilitation order satisfactorily as far as the pre-sentence report is concerned. In fact that pre-sentence says about you that you qualify for a suspended sentence in their view.

What causes me the greatest difficulty in this case are the moving letters of reference that have been placed before me on your behalf. I am not talking about the letters from Mr Hughes and Mr Clark, who talk about you in work context but, nevertheless, say positive things about you and have shown that they are prepared to support you; I am talking about the letters from Mr Miller, your grandfather. That is a very sad state of affairs and more particularly to two people who are not your biological parents but, nevertheless, have stood up to support you, have sat in court with you today. They obviously feel there is something about you that is worth supporting. They are your adoptive parents Janice and Dennis Davidson. What they say about you in your letter (sic) is moving, it is compelling, it is cogent and it is persuasive.

There is some good in you, young man.

Should I send you to prison for five years or should I give you another chance? That is really what I am being asked to today and I am going to give you another chance, but I will tell you it is a chance you are going to take because I am not going to give you another one.

These two people supported you. It is time to give them something back. They have invested an incredible amount of time in emotional and love for you. Do you not think it is time to give something back to them? I would like to hear an answer to that question.

THE DEFENDANT: Yeah.

THE RECORDER: I think so. Going out at night with cannabis, offering to supply cannabis, with a youth rehabilitation on your head and having that weapon in your car, a weapon that could have caused serious injury in the wrong hands had that person asked for it back.

It may be that other courts will query my decision, but it is a decision that I am afraid that having looked at the case from all sides I consider to be right. Merciful perhaps, lenient some may say, but not unduly so."

Discussion

26. The issue in this case is a simple one to articulate: was the judge justified in finding there were exceptional circumstances, either in relation to the offence or the offender, which meant he was not obliged to impose the minimum term of five years' custody for this offence? Putting it another way, is this court justified in interfering with the sentence imposed because the court below was clearly wrong in identifying exceptional circumstances when they did not exist?
27. In R v Rogers and others [2016] EWCA Crim 801, decided after sentence was imposed in this case, the Lord Chief Justice, giving the judgment of the court, said at paragraph 121 that:

"When a defendant wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his advocate. The prosecution should then state whether they are agreed or not. If they are not agreed, then the defendant can then decide whether to seek a hearing, with the consequence that if he is disbelieved he will lose some of the credit to which he would otherwise be entitled. If the circumstances are agreed by the prosecution, but the judge does not approve that agreement, then the defendant must decide whether he wants a hearing ... The hurdle for the defendant, in establishing exceptional circumstances, remains a high one."

28. The particular benefit of this approach in a case where the minimum term provisions are engaged is that it prevents "fudge": it concentrates the mind of all in court before the sentence is determined on the matters that are said to be exceptional and whether they surmount the exceptionality threshold, whether on their own or looked at collectively.
29. In R v Rehman [2005] EWCA Crim 2056, Lord Woolf CJ, giving the judgment of the court, emphasised that a "holistic" approach was required when deciding whether exceptional circumstances exist, and he went on to say at paragraph 11:

"There will be cases where there is one single striking feature, which relates either to the offence or the offender, which causes that case to fall within the requirement of exceptional circumstances. There can be other cases where no single factor by itself will amount to exceptional circumstances, but the collective impact of all the relevant circumstances truly makes the case exceptional."

30. We have been referred, in addition to Rehman, in the written submissions provided by the parties to a large number of authorities on the issue of exceptional circumstances, some of which concern disguised firearms and some of which do not. These include Craggs (supra); R v AC [2012] EWCA Crim 3062; R v Ramzan [2013] 2 Cr App R (S) 33; R v Graham Stocker [2014] 1 Cr App R (S) 47; Attorney General's Reference No 51 of 2013 [2014] 1 Cr App R (S) 83; and R v Withers [2015] 1 Cr App R (S) 64.
31. In Withers, Globe J, giving the judgment of the court, provided an analysis of the facts of some of these cases.
32. We have also been referred to the well-known passage in R v Avis [1998] 1 Cr App R 420 at 424, where Lord Bingham CJ, giving the judgment of the court, gave guidance in a pre-minimum term case on the series of questions it was appropriate for the court to ask when considering the appropriate level of sentence in any firearms case.
33. It is trite, however, that whether there are exceptional circumstances is a fact-sensitive question. It is also the case that there is no checklist of matters which determine on which side of the line a case falls. In Rehman, at 414, Lord Woolf CJ emphasised the importance of not dividing circumstances into those that were capable of being exceptional and those that were not.
34. On the facts of this case we consider the judge was wrong to find there were exceptional circumstances. The offender had the disguised taser in a public place and he had earlier concealed it in his car, and in circumstances where it was charged and readily available for use. He also had with him concealed and available for use a police-style baton. He had earlier that evening used a four to five inch knife to intimidate someone from whom he had snatched some money in an incident which he was fortunate did not result in a robbery charge. He had a relevant previous conviction for threatening someone with a bladed article. There was, therefore, cogent evidence that the offender was someone who was prepared to arm himself with a weapon and use it in a public place to threaten others. The background to this conduct was the offender's possession of cannabis, his offer to supply that particular drug and the theft, for which offences he was sentenced on the same occasion. At the time of the instant offending he was in breach of a youth rehabilitation order imposed for the bladed article offence. Albeit he was not asked about the taser in interview, he was not frank about the circumstances in which it was in his possession, either to the author of the pre-sentence report or initially to the court.
35. Mr Weekes, for the Attorney, submits that the mere fact that a defendant is 18 years old and that the weapon possessed is a disguised taser, rather than a disguised conventional firearm for example, are not factors which, on their own, can constitute exceptional circumstances given the clear terms of the statutory provisions to which we have referred. We agree.
36. It is true that there was no evidence of actual use, but the offence itself is one of possession and the taser was in a public place and plainly available for use.
37. The absence of the charger was not a particularly compelling feature, in our judgment, in circumstances where the device itself was charged and concealed but available in the circumstances we have described.
38. We would add that it seems tolerably plain from what the judge said that he did not in fact regard these features as particularly compelling and that he was swayed by sympathy for the offender's family: the moving letters of reference from the appellant's grandfather, the obvious decency of the offender's adoptive parents and the loving support which they had given him and would continue to give him. It is that particular feature and the interaction which took place between the offender and the judge upon which Mr Walker, who did not appear below but appears before us today, has placed emphasis in the course of what, if we may say so, are very helpful and well-argued submissions.
39. It is clear, however, that the cases where exceptional circumstances will be found are rare. See, for example, what is said in Attorney General's Reference No 51 of 2015, where the relevant principles are encapsulated. See further Attorney General's Reference No 115 of 2015 (Greenfield), where the Vice President of the Court of Appeal Criminal Division, Hallett LJ, giving the judgment of the court, said at paragraph 31 as follows:

"There has been a clear steer from this court in recent years that the word 'exceptional' is not to be diluted; sympathy for an offender is not enough to prevent a judge from doing their statutory duty."

Nor, we would add, for the offender's family, as appears to have happened here.

40. We have carefully read the documents that were supplied by the offender's family to the judge. With respect to him, we do not consider the matters which they refer to, or those referred to by him in his sentencing remarks, were capable, without more, of making this case exceptional for the purposes of sentence.
41. There is no doubt that statutory provisions requiring the imposition of minimum terms pose a particular challenge for sentencing judges. Unless, however, there are facts which are capable of establishing exceptional circumstances, where the imposition of a five year minimum term would result in an "arbitrary and disproportionate sentence", then the minimum term laid down by Parliament must be imposed.
42. The alternative submission made by Mr Weekes on behalf of the Attorney is that, on analysis, the sentence of 18 months, as it must have been before discount for plea, was unduly lenient in any event, and on the facts a sentence of the order of three and a half years to four years before discount for plea should have been imposed. He further says that on the facts this was not a case, not least because of the length of sentence that should have been imposed on this alternative scenario, where it was appropriate to suspend the sentence.
43. We have read the pre-appeal report for the purposes of this hearing, from which it is clear that the appellant has demonstrated a very poor compliance with the suspended sentence order that was imposed. In the event, however, it is unnecessary for us to address this aspect of the matter before us, save to say that our strong preliminary view is that the Attorney's submissions in relation to length are well founded.
44. It follows from that we have said that we consider that the sentence that was imposed for the firearms offence was unduly lenient. We quash that sentence, that is of 12 months' detention suspended for two years, and substitute for it a sentence of five years' detention in a young offenders' institution. That will run from the date of the original sentence.
45. The offender must now surrender to custody and we will hear submissions on that matter.
46. MR WALKER: My Lady, the officer in the case I think had nominated Carlisle, but I had, at 5 o'clock this morning, communication that it might be Penrith. I wonder whether I could check my phone to see whether I have been told which is which. The alternative is my Lady nominate Carlisle within 24 hours rather than Penrith by 4 o'clock today.
47. LADY JUSTICE SHARP: We will rise for a moment so you can check what the position is.
(The Bench retired for a short time) - - - - -
48. MR WEEKES: Mr Walker is still taking instructions, my Lady. The thought that occurs to me, having taken instructions on the point -- and I am conscious Mr Walker is not here -- but if your Ladyship was to order 24 hours hence ...
49. LADY JUSTICE SHARP: We will rise again.
(The Bench retired for a short time) - - - - -
50. MR WALKER: I think I missed the court, I am sorry.
51. LADY JUSTICE SHARP: No, we came in without being told that you were here, so not your fault at all.
52. MR WALKER: I have sent an e-mail and I have not had a response to those instructing me, and I have also tried to phone those instructing me today. I have spoken to my learned friend. Penrith and Carlisle are the two towns that we are concerned with. I think the officer in the case thought it was Carlisle. Looking at the offender's address, it is Penrith, and so I had made a suggestion that it might be Penrith. I wonder whether, subject to the court's satisfaction, we could say that on the basis that I will communicate it with those instructing me, Mr Davidson knows what is going on today and has been in touch, as has his family, and whether we can nominate that either by noon tomorrow he surrenders himself at Carlisle, or whether it is 4.30 at Penrith, which is the alternative.
53. LADY JUSTICE SHARP: Do you know whether the opening hours of Penrith station?
54. MR WALKER: That is why I said 4.30, assuming that Penrith would be open on a week day at 4.30. The answer is "no".
55. LADY JUSTICE SHARP: We have one other matter to deal with, which I think is a non-counsel. My preference would be for this matter to be resolved so the offender knows exactly what he has to do and when.
56. MR WALKER: If I can then be excused and try and make sure we have a city and a time.
57. LADY JUSTICE SHARP: Perhaps you might also find -- I am afraid I do not know how far Penrith is from Carlisle.
58. MR WALKER: Yes, I will. It is one of those places where it may not be very far on a map, but the roads up there are something else. I will make those enquiries.
59. MRS JUSTICE ELISABETH LAING: I think you can go up the M6.
60. MR WALKER: You would, yes.
61. LADY JUSTICE SHARP: If you and Mr Weekes could agree the way forward once you have made those enquiries, then we can take it from there.
62. MR WEEKES: The only difficulty, my Lady, is this. I only have an e-mail address for the officer in the case and he has himself nominated Carlisle.
63. LADY JUSTICE SHARP: He has nominated?
64. MR WEEKES: He nominated Carlisle, and so what I do not know -- I am afraid it may not be easy to discover this -- is the ability of Penrith police station to handle this matter if the offender presents himself there, but I will do my best.
65. LADY JUSTICE SHARP: Could you make enquiries and we will obviously have to do the best we can with the information we have after we dealt with this other matter.
66. MR WALKER: The information I have from those instructing me, if it helps, because this is somebody who understands the area more than I do, is that at 5.46 this morning "I will arrange for him to be at Penrith Police Station, Hunter Lane, Penrith for 4.30 pm", and there is another matter referred to. That is what those instructing me believe. I do not know whether, on the basis of that --
67. LADY JUSTICE SHARP: Presumably they are local solicitors.
68. MR WALKER: They are, yes.
69. LADY JUSTICE SHARP: So they would, one would hope, know what the position is.
70. MR WALKER: They did not send a note to me saying "Silly counsel, the police station is shut on Wednesday afternoons" or something, so ...
71. MR WEEKES: I will do what I can make contact with the officer to ascertain whether that is a course --
72. LADY JUSTICE SHARP: For the future, perhaps this message could go to the Attorney's office, in cases of this nature where there is a possibility, depending on the outcome, that an offender may have to surrender to custody, there should be communication in advance of the hearing as to what that place should be and when, so that the court is not dependent upon enquiries made on the hoof.
73. MR WEEKES: My Lady, yes.
74. LADY JUSTICE SHARP: Thank you very much.
(The case was adjourned for a short time) - - - - -
75. MR WEEKES: My Lady, Mr Walker is taking further instructions as to the possibility of his lay client surrendering.
76. LADY JUSTICE SHARP: All right. We will rise and the usher will let us know when he is back. We hope it should be before 1 o'clock.
(The case was adjourned for a short time) - - - - -
77. MR WEEKES: My Lady, I have been able to speak to the custody sergeant at Carlisle police station, who tells me that there is no custody facility at Penrith, so I think the position would be if he surrendered to Penrith he would simply be told to go to Carlisle, and in the circumstances I do not think I can make any undertaking that the police would be prepared to transport him from Penrith to Carlisle.
78. LADY JUSTICE SHARP: It will have to be Carlisle. Presumably Carlisle is open all hours?
79. MR WEEKES: It is a custody facility, my Lady, so it would have to be.
80. LADY JUSTICE SHARP: Yes.
81. MR WALKER: My Lady, it clearly makes absolute sense to go to a police station that can receive him. I have tried to get through to those instructing me, who told me yesterday that she was going to be in court in Carlisle. She will be in contact with Mr Davidson today. The only issue is what time this court places upon his attendance at Carlisle.
82. LADY JUSTICE SHARP: It must be at some point today, it cannot be overnight.
83. MR WALKER: That could not be clearer, today.
84. LADY JUSTICE SHARP: The offender must surrender to custody by 5.30 pm at the Carlisle police station.
85. MR WALKER: Thank you.
86. LADY JUSTICE SHARP: Thank you very much, both of you, for your assistance.