No: 201702367 A1 
Neutral Citation Number: [2018] EWCA Crim 1068
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 3 May 2018
B e f o r e:

LORD JUSTICE FLAUX 

MR JUSTICE JEREMY BAKER 

THE RECORDER OF CARDIFF
(HER HONOUR JUDGE REES) 

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R E G I N A 
v 
KIERAN CALLAGHAN
 
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Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street  London EC4A 2DY, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
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MR FADI DAOUD (a solicitor advocate) appeared on behalf of the Applicant

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J U D G M E N T
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1.	MR JUSTICE JEREMY BAKER:  On 27th April 2017 Kieran Callaghan, who is 22 years of age, having pleaded guilty on an earlier occasion, was sentenced at Harrow Crown Court to two‑and‑a‑half years' imprisonment in respect of an offence of being concerned in supplying a controlled drug of Class A, cocaine, to another and five years' imprisonment in relation to an offence of possession of a disguised firearm, contrary to section 5(1A)(a) of the Firearms Act 1968.  The two periods were ordered to run concurrently with each other, making a total of five years' imprisonment.
2.	Kieran Callaghan applies for an extension of time – approximately 383 days ‑ in which to renew his application for permission to appeal against sentence following refusal by the single judge.
3.	On 7th October 2016 police officers attended the applicant's home address in order to execute a search warrant.  During the course of this search, they found three large wraps with cocaine residue inside together with a viable taser device (disguised as an Iphone) in his bedside drawers.  He was arrested and taken to the police station.  
4.	In subsequent police interviews, the applicant admitted selling cocaine.  However, he stated that he had a cocaine habit and that his sales were limited to his friends in order to finance his own usage.  
5.	In relation to the disguised taser, the applicant stated that he had purchased this approximately four months previously, when he was approached by a number of males outside a bookmakers and they sold it to him for £40.  He stated that he had purchased it because of a previous incident when he was sprayed in the face with pepper by someone from whom he had been purchasing cocaine on tick.  The applicant stated that he was fearful that he might be attacked in his own home by those who supplied drugs to him and he needed the taser in order to defend himself.
6.	At the time of having committed these offences, the applicant was 20 years of age and had no previous convictions.
7.	The applicant had submitted a written basis of plea in the following terms: 
"1.  I rely on my interview account and the phone download analysed by the Crown.  I was not selling Class A drugs for profit but was instead supplying to friends and acquaintances in order to fund my own drug addiction as is demonstrated by the messages on my phone.  
2.  I was not aware that the taser was a prohibited weapon."
8.	The basis of plea was not accepted by the Crown and a Newton hearing was conducted by the sentencing judge, during which the applicant gave evidence.  In the course of his evidence the applicant stated that, as a result of his involvement with purchasing cocaine, he had got himself into debt to the tune of around £800 or £900 and had been unable to pay it.  As a result, he had received death threats.  It was in these circumstances that he had decided to purchase the disguised taser.  He admitted that he had tested it on one occasion on himself and that it worked.  He was proposing to use it to frighten those who had threatened him if the need arose in order to defend himself in his own home.  He admitted that he had the disguised taser for his own protection in relation to his drug activities but had had no idea that it was a weapon.
9.	In the course of his sentencing remarks the judge, when dealing with the drugs offence, stated: 
"I will accept that there was a significant degree of supplying to fund your own use, but it does not end there, as the statement of the police officer Mr Jones at page 18 shows.  Overall, I take the view that the drugs offending falls into Category 3, street dealing, but very much at the lower end, where the starting point would be in the order of three‑and‑a‑half years' imprisonment."
10.	 
11.	In relation to prohibited weapon, the judge went on to state:
"The disguised taser is more serious.  This is a weapon where I am required to pass a prescribed minimum custodial sentence of five years' imprisonment, unless I find exceptional circumstances for not doing so.  By reference to your interview and what I have heard from you today, this was a weapon that you knew to be disguised and offensive and designed, specifically, for causing harm or incapacity.  Bought by you, I am entitled to infer, for use in connection with your illicit drug activity.  It was bought in circumstances from unknown males, or maybe one who was known, outside a bookmaker.  You knew what it was.  You knew what it was for and you were prepared to use it, I find, although I accept there is no evidence of it being used.  In those circumstances, it is inconceivable, in my view, that you did not know that it was prohibited.  
This is a very sad case indeed.  You are of good character.  You have a supportive family.  You have pleaded guilty at what I will accept is the earliest opportunity.  I accept your remorse and I have read some very impressive references that have been provided.  But, in accordance with the law, I find that there are no exceptional circumstances here for not imposing the minimum sentence."
12.	In the original grounds of appeal which were considered by the single judge it was argued by counsel who had acted for him at the plea and sentencing hearings that the judge had been wrong to conclude that there were no exceptional circumstances and that the judge did not appear to have considered whether there were exceptional circumstances arising from the applicant's personal circumstances.  It was submitted that, as a result, the imposition of the minimum term was both arbitrary and disproportionate, and therefore manifestly excessive.
13.	However, since then, the applicant has instructed new lawyers; and Mr Daoud, who appears before us this morning, has drafted a written note of appeal in which it is submitted that the principal basis of the application is based upon fresh evidence provided by a consultant clinical psychologist, Dr Marriott, in a report dated 23rd October 2017.  Dr Marriott states that the applicant's cognitive abilities fell between the extremely low to low/average abilities and that as a result: 
"His cognitive abilities are significantly impaired and it is possible that he did not understand that the taser that he had bought was dangerous and classed as a firearm."
14.	It is now sought to be argued on the applicant's behalf that, had the judge been aware of this matter, he would have found that exceptional circumstances existed.  It is also sought to be argued that, having failed to appreciate that the applicant suffered from cognitive difficulties, the conduct of a Newton hearing was unfair, and in any event the judge's findings as to the nature and extent of the drug supplied was not supported by the evidence.
15.	The type of situation in which new grounds are sought to be relied upon following the single judge's refusal of the original grounds has been the subject of guidance by the Vice President in James & Others [2018] EWCA Crim 285, namely that an application to vary the grounds is required and that the determination of that application will include consideration of both the merits of those grounds and the explanation for any delay.  Moreover, in the present case, as fresh evidence is sought to be relied upon, section 23 of the Criminal Appeal Act 1968 will also be required to be considered, which will in itself require consideration as to whether there is a reasonable explanation for the failure to adduce the evidence in the original proceedings and whether it appears to the court that the evidence may afford any ground for allowing the appeal.
16.	Although it is submitted by Mr Daoud that he does not seek to criticise the applicant's previous legal team for not having provided the sentencing court with a report from the clinical psychologist, in truth there is no other explanation provided by him; and we note that, bearing in mind the requirements in McCook, there has been no waiver of privilege nor any steps taken to seek an explanation for this omission from the lawyers originally instructed on behalf of the applicant.  Moreover, despite the report being drafted on 23rd October 2017, it was not provided to this court until 23rd February of this year, and Mr Daoud's note on appeal was not provided until yesterday.  However, despite the unexplained delays in the case, we will consider whether there is any merit in the grounds of appeal as a whole, including those contained in the recent note on appeal.
17.	In so far as the judge's determination as to the nature and extent of the applicant's drug supplying is concerned, this was not only based upon what was found at the applicant's home but in particular upon the evidence of Police Sergeant Jones who analysed the applicant's mobile phone.  His evidence was to the effect: 
"It is apparent that the user PAG/1 is involved in the supply of cocaine.  He agrees to supply several individuals here, or chases money he is owed by individuals he has supplied.  In one message he boasts of being a cocaine supplier, and in others he refers to making himself available to meet drug buyers any time day or night.  When amounts are discussed, they are lower amounts of a single gram or less.  When monies are mentioned, they are lower amounts ‑ and even when the user references all the monies he is owed, the total is fairly low at £700.  It is apparent that this person is also using the drugs, and is likely funding their own habit through the enterprise.  The user certainly seems desperate for money judging by the amount of effort he puts into collecting monies owed to him."
18.	 
19.	In our judgment that evidence taken together with what was found at the applicant's home amply justified the judge's determination under the guidelines that the applicant played a significant role in Category 3 street dealing of Class A drugs, albeit at the lower end of the category range of between three‑and‑a‑half and seven years' custody; and that, whilst the applicant may have sought to provide funds to feed his own drug habit from the profits he made by his drug supplying, this was not the type of joint purchase or sharing of minimal quantities which would have supported a finding that he played only a lesser role under the guidelines.  
20.	Furthermore, having read the transcript of the Newton hearing, it is apparent that the applicant was enabled to give such evidence as he chose to provide to the court, both on the subject of the nature and extent of his drug dealing and in relation to his possession of the disguised taser, such that no arguable unfairness arose from the judge not being in possession of the report of the clinical psychologist.
21.	In relation to the issue of whether 'exceptional circumstances' exist for the purposes of section 51A(2) of the Firearms Act 1968, this court has issued guidance in Rehman & Wood [2005] EWCA Crim 2056, which has been considered and followed in more recent cases, including, most recently, Tuka [2017] EWCA Crim 2210.  
22.	It is clear that, when considering whether exceptional circumstances arise from the circumstances of such an offence, it is first of all necessary for the court to consider the four firearms related questions which are set out in Avis [1998] 1 Cr App R (S) 420: firstly, what sort of weapon is involved; secondly, what use has been made of it; thirdly, with what intention was the applicant in possession of the weapon; and fourthly, what is the applicant's criminal record.
23.	In the present case, despite the fact that three of the answers to the Avis questions are favourable towards the applicant's position ‑ namely, the type of weapon involved, the use that the applicant had made of the weapon to date and his lack of criminal antecedents ‑ nevertheless the judge went on to find that the applicant had the weapon in his possession with the express intention of using it in the course of his illegal drug trade in the event that those supplying him with Class A drugs sought to extract retribution from him for failing to pay his drug‑related debts.  In our judgment this was a particularly significant finding ‑ indeed one that was admitted by the applicant ‑ and was one which, in our view, entitled the judge to find that there were no exceptional circumstances arising from the circumstances of the offence.
24.	Furthermore, although it is possible that the judge's determination that the applicant knew that the taser was a prohibited weapon may have been affected by the opinions expressed by Dr Marriott's report, this was but one factor, and there is nothing in her report which would have affected the judge's far more significant finding that the applicant had the taser in his possession with the express intention of using it in the course of his illegal drug trade.
25.	Undoubtedly the court is enjoined to take a holistic view as to the existence of otherwise exceptional circumstances and to take into account the accused's personal circumstances.  However, in the present case, not only do we consider that none of his personal circumstances which were considered by the judge (including his lack of previous convictions, the existence of a more positive side to the applicant's character as disclosed in various character references and his post‑offending engagement with a drugs awareness agency) are sufficiently exceptional to justify the non-imposition of the minimum sentence in this case. Moreover, there is nothing in the more recent report from Dr Marriott to persuade us that exceptional circumstances exist in this case.  
26.	In any event, we are satisfied that this conclusion does not result in the imposition of a sentence that is either arbitrary or disproportionate, in that, even if we had been minded to consider that exceptional circumstances existed in this case, the sentence in relation to the disguised firearm would have still been in the region of two‑and‑a‑half to three years, which would have been ordered to run consecutively to the sentence of two‑and‑a‑half years' imprisonment in relation to the applicant's drugs supply.  In these circumstances the resulting sentence which would have been imposed upon the applicant would still have been in the region of five years' imprisonment.
27.	In the circumstances, as there is no merit either in the grounds originally considered by the single judge nor those in the note on appeal, not only do we refuse the application for an extension of time for which there is no satisfactory explanation, but we also refuse the application to amend the grounds of appeal and the application to rely upon fresh evidence. 
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