APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Carloway	[2008]HCJAC 41 Appeal No: XC37/08     OPINION OF THE COURT   delivered by LORD CARLOWAY   in the   NOTE OF APPEAL AGAINST SENTENCE   by   ROBERT LOWE Appellant   against   HER MAJESTY'S ADVOCATE Respondent   ­­­­­­­­­­­­­­­­­________________ ­­­­­­­­­­­­­­­­­

 

 

Act : Jackson QC; McClure Collins

Alt : K Stewart, AD; Crown Agent

 

10 July 2008

 

Section 51A of the Firearms Act 1968 (c 27) provides that, where a person over the age of 21 is convicted of an offence under section 5(1)(aba), the court shall impose a sentence of at least five years imprisonment unless "the court is of the opinion that there are exceptional circumstances relating to the offence which justify its not doing so". Section 5(1)(aba) prohibits the possession of certain firearms, including pistols.

On 9 October 2007 the appellant pled guilty, under the procedure for accelerated pleas provided by section 76 of the Criminal Procedure (Scotland) Act 1995 (c 46), to a contravention of section 5(1)(aba) in respect of a pistol found by the police locked in a safe in his house on 30 November 2006. At that time, the appellant had been a hospital in-patient following a feud with his cousin Nathaniel Lowe, who lived across the road. It was his cousin who had provided the information about the appellant having the gun, which he had handed to the appellant at some indeterminate time.

The pistol was a Derringer type double barrelled gun, which had been converted from a replica by having its blocked barrels replaced. The replacement barrels were 6.8 cm long. The gun was capable of firing .22 calibre bullets. A proof in mitigation was held because of conflicts in information about: (i) the circumstances in which the gun had come into the possession of the appellant; (ii) the appellant's belief about the nature of the gun; and (iii) the permanency of the gun's location in the safe. Having heard the testimony of the police, the appellant and his cousin, the sentencing judge determined that he was not prepared to accept the appellant as entirely credible and reliable. In his Report, he explains that this was partly because of his demeanour in the witness box, partly because of his lack of candour and partly because of conflicts in his testimony when compared with agreed fact. The effect of the sentencing judge's assessment of the appellant was that there was no satisfactory or acceptable explanation for the appellant's possession of the gun.

In maintaining that there were exceptional circumstances in terms of the legislation, the appellant pointed to a number of different factors:

1. The source of the gun was the appellant's cousin; the very person who had reported its existence to the police. However, although the appellant's counsel submitted that the appellant was keeping the gun safe for his cousin, the sentencing judge was not prepared to accept that as fact. The judge did accept that the gun had come from the cousin but not when or why that had occurred;

2. The size of the gun. It was described as tiny and, it was submitted, the type of gun that might be carried by a woman in her handbag. At the same time, it was submitted that it looked like a starting pistol. It is not the Court's understanding that a Derringer is similar to a starting pistol. It is also not the Court's understanding that a Derringer is a weapon of choice of a particular gender. Rather it is well known to be a lethal weapon, whose dimensions are created not for their aesthetic merit but for ease of concealment;

3. The appellant's belief that the gun was a starting pistol. However, the sentencing judge did not accept this;

4. The absence of evidence that the appellant had been involved in the conversion of the pistol from its replica state;

5. The absence of ammunition being found and the lack of any evidence that the gun had ever been fired;

6. The secure location of the gun. The safe had been set in a concrete floor under an internal flight of stairs. It was concealed by an overlay of carpet and a dummy lid. Thus, the prospect of the casual housebreaker coming across the safe, and being able to remove the gun from it, was remote. This is perhaps a double edged sword. If the appellant had thought that the gun was a starting pistol, there would be less reason for him to keep it in such a secure location;

7. The absence of the appellant having any significant criminal record. There is some merit in this in so far as it discloses that the appellant is not a habitual criminal. However, the appellant's record is not insignificant. He has a conviction for dishonesty (reset) in 1992. He has a conviction for violence (assault to injury) in 1996. He has a conviction for carrying an offensive weapon in 2001. All three offences attracted significant monetary penalties;

8. The appellant's early plea; and

9. The appellant's stable family life and business history. He is a forty three year old man, living in family with his wife, mother and middle son (aged 24) in Strathaven. He is self-employed in the motor trade. References were provided from other members of that trade confirming his sound business reputation.

It was submitted that the sentencing judge had regarded the appellant's demeanour, when giving evidence, as an aggravating factor. That does not seem to be correct. The sentencing judge was influenced by the appellant's demeanour in deciding to reject certain aspects of the appellant's testimony, but he did not go so far as to suggest that the manner of his giving evidence was itself a factor to be taken into account when determining whether exceptional circumstances existed. It was also submitted that the sentencing judge had erred in placing weight upon the appellant's possession of the gun in the context of an ongoing feud. The suggestion was that it was illegitimate to consider that the gun might have been used to settle the feud. However, the sentencing judge went no further than to note that context as fact. It was not irrelevant that the possessor of a lethal weapon was engaged in a violent feud with his cousin and neighbour.

There was no dispute that the principles to be applied in determining whether exceptional circumstances exist are those set out by Lord Nimmo Smith, distilling the essence of several English cases and delivering the Opinion of the Court, in HM Advocate v McGovern 2007 JC 145. He said (para 11):

"In enacting sec 51A of the Firearms Act, Parliament intended, that, for the protection of the public against the dangers arising from the unlawful possession of firearms, considerations of retribution and deterrence should be given greater emphasis, and the personal circumstances of the offender less emphasis, than would normally be the case in sentencing. While there may be cases in which exceptional circumstances are found to exist, the emphasis is on the word 'exceptional', and such cases will be rare. In deciding whether or not exceptional circumstances exist, it is necessary to consider as a whole all relevant circumstances relating both to the offence and to the offender. Some circumstances may amount to aggravation and some to mitigation, and some may be relatively neutral, which is why it is to the circumstances as a whole that regard must be had".

 

The sentencing judge concluded that exceptional circumstances did not exist in the present case. He was entirely justified in doing so. As the Advocate Depute submitted, although many of the factors relied on are mitigatory in nature, none of them, taken individually or collectively, describe an exceptional situation which would justify a departure from the policy of Parliament. Indeed, it is likely to be difficult for such a situation to be made out where the sentencing judge is not given an account of the relevant circumstances, which he is prepared to accept as full and accurate. Here, the appellant kept a pistol in his home and was unable to explain why he had done so to the satisfaction of the court. This is the type of case where Parliament would expect its minimum sentence to be applied because of its deterrent value. That is what the sentencing judge did. Had there been any factors suggesting that the gun was to be used for a specific nefarious purpose, then, no doubt, the Crown would not have accepted a plea to simple possession and the appellant would have faced a higher penalty.

Having regard to the clear policy behind the minimum sentence in discouraging the possession of any form of firearm of the type described here, it cannot be said that the judge erred in dismissing the circumstances put forth as unexceptional. The appeal is refused.