Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 11

HCA/2016/000596/XC

 

Lady Clark of Calton

Lord Turnbull

 

 

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in

APPEAL AGAINST SENTENCE

by

NIALL BRIAN DINSMORE

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  M Mackenzie;  George More & Co LLP

Respondent:  M Hughes, AD;  Crown Agent

24 February 2017

Summary

[1]        The appellant (born October 1988) pled guilty on indictment in the High Court of Justiciary at Glasgow, of a number of offences including a charge of firearms disguised as other objects, namely five stun guns disguised as torches contrary to the Firearms Act 1968 (the 1968 Act), section 5(1A)(a).  Said offence is subject to the sentence provisions set out in section 51A of the 1968 Act which provides that the court is required to impose

“...an appropriate custodial sentence ... for a term of at least the required minimum term ... 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.” (Section 51A(2)). 

 

The required minimum term is defined in section 51A(5)(b) as 5 years in a case of an offender who was aged 21 or over when he committed the offence. 

[2]        The main issue in the appeal is whether the sentencing judge erred in holding that there were no “exceptional circumstances” which in terms of the statutory provisions would justify the court in not imposing a sentence of at least the minimum term of 5 years in respect of charge 2.  Counsel for the appellant submitted that the judge had erred and that the sentence in respect of charge 2 was excessive.  The sentences in respect of charges 4 and 5 were not challenged.

 

The Offences and Sentences
[3]        The appellant was indicted on six charges and at a Preliminary Hearing on 28 September 2016 pled guilty to the undernoted charges as amended:

“(002) on 31 August 2015 at Edinburgh International Airport, Edinburgh, you NIALL BRIAN DINSMORE did have in your possession, without the authority of the Secretary of State or the Scottish Ministers, firearms which were disguised as other objects, namely five stun guns disguised as torches:  CONTRARY to the Firearms Act 1968, Section 5(1A)(a) as amended;

 

(004) on 31 August 2015 at Edinburgh international Airport, Edinburgh, you NIALL BRIAN DINSMORE did have in your possession firearms, namely stun-guns, to which section 1 of the aftermentioned Act applies without holding a firearms certificate in force at the time:  CONTRARY to Section 1(1)(a) of the Firearms Act 1968;

 

(005) on 31 August 2015 at Edinburgh international Airport, Edinburgh, you NIALL BRIAN DINSMORE did without reasonable excuse or lawful authority, have with you offensive weapons, namely five truncheons:  CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 47(1) as amended;”

 

[4]        At an adjourned diet on 25 October 2016, the solicitor advocate explained that he did not seek to lead the appellant in a proof in mitigation but made submissions that there were exceptional circumstances which would justify the court in not imposing a term of imprisonment of at least 5 years.  The sentencing judge was not so persuaded.  He sentenced the appellant to 5 years imprisonment on charge 2, 18 months imprisonment in respect of charge 4 (discounted from 2 years) and 6 months imprisonment in respect of charge 5 (discounted from 8 months).  He ordered that the sentences run concurrently from the date of sentence.

 

The Agreed Narrative of Facts
[5]        The sentencing judge set out in detail in his report the relevant parts of the agreed narrative which we summarise.  The appellant and his girlfriend arrived by plane at Edinburgh International Airport where they were stopped by a Border Force officer.  In response to questions the appellant accepted that he had a taser and baton.  Before the baggage from the plane was searched, he admitted to having five tasers and five batons.  The appellant, when interviewed under caution, admitted buying five stun‑guns and five extendable batons at a supermarket in Bulgaria when he was holiday with his girlfriend.  He stated that he thought the stun‑guns may be classed as dangerous but later said that he did not think they were dangerous.  He thought he would get a “slap on the wrist” if caught with them.  He accepted he might be doing wrong by importing the weapons but did not appreciate how serious an offence he was committing.  He said he bought the items as gifts as they were unusual.  He did not know what effect a stun‑gun might have but thought it might give a shock and maybe knock a person to the floor.  He had tried one of the stun‑guns in the shop and saw that it sparked and crackled.  He stated that he did not know if the items could be purchased in the United Kingdom.  He was aware that he had to flick the batons to make them extend.  He thought the batons could maybe be purchased in a fishing tackle or hunting shop.  He cooperated by identifying the suitcases and the guns and batons purchased by him.  He attributed his conduct to stupidity.  He was arrested and charged.

[6]        There was a detailed report of the firearms examination which described the devices and concluded that

“The devices were all in good external condition and in working order, with an audible and visible display of sparks occurring between the electrodes and the torch illuminating when activated.”

 

[7]        The five truncheons or batons were described in the report as of

“...black steel construction and measured 200mm (8 inches).  They have a telescopic function which when utilised and fully extended measures 500mm (20 inches).  The truncheons are gravity operated and to extend it the user would simply use a flicking motion with their hand.  To close it the user would hit it vertically onto a stone floor or concrete.”

 

[8]        The appellant did not hold a firearms certificate in terms of the 1968 Act.

 

Submissions to the Sentencing Judge
[9]        The report by the sentencing judge narrated the submissions which were made to justify a finding of exceptional circumstances.  In summary the submission was to this effect:

“The appellant had fully cooperated with the police and pled guilty.  He had the stun‑guns in his possession for only a short time.  He did not understand that the items were firearms.  They were non-lethal.  There was a lack of criminal intent vis-à-vis their use.  His personal circumstances were in his favour.  While he had previous convictions they were all for road traffic offences.  He was of good character, in employment with a good work history.  He had recently discovered he was the father of a child and was attempting to establish a relationship with her. ...He had been assessed as suitable for an alternative to custody.”

 

[10]      The sentencing judge also had regard to the report of the Parole Board for Northern Ireland and he concluded from references submitted that the appellant was well regarded in the community and by friends, family and his employer. 

[11]      The sentencing judge considered relevant Scottish authorities namely HMA v McGovern 2007 JC 145, Lowe v HMA 2008 SCCR 760 and Cochrane v HMA 2011 SCL 176.  He had regard also to a number of cases from the English jurisdiction namely:  R v Zakir Rehman and Gary Wood [2006] 1 Cr App R (S) 77;  R v Graham Stoker [2014] 1 Cr App R(S) 47;  R v Yordan Zhekov [2013] 1 Cr App R(S) 69;  R v Booker [2015] 2 Cr App R(S) 51;  R v Jake Simon Mccleary [2014] EWCA Crim 302;  R v Peng Zhao [2016] EWCA Crim 1210 and R v Cipro [2016] EWCA Crim 23.

[12]      In his report, the sentencing judge gave careful and detailed consideration to the question of sentence.  He decided to treat the appellant as a first offender.  He noted his expression of shame and remorse.  He took account of all the circumstances including the favourable circumstances of the appellant, the early plea of guilty and the low risk of reoffending.  The sentencing judge explained in his report that:

“In determining that the circumstances of this offence were not exceptional I had regard to the number of stun guns, the fact that there were also five batons, that he acknowledged that he knew it was wrong to bring them into the country and that they were dangerous.  He also intended to give four of them to others along with a baton and therefore out of his control.

 

The appellant’s purchase was not confined to a single stun gun as a souvenir for himself.  In ordinary use a stun may be classed as non-lethal.  However these weapons are of considerable potency especially when combined with a baton.  I accepted that his own intentions as regards their use may have been benign.  So far as the gifts are concerned he may have believed that his intended recipients would not have used them for criminal activities.  However he intended to put them beyond his control and he could not have known whether they may have ended up in the hands of persons who may have put them to a more sinister use.  I note in passing that had any of the intended recipients accepted the gift they would themselves have been committing a serious offence.  While the appellant may not have appreciated how serious the offences were he knew that it was wrong to bring them into the country.  He also acknowledged that they were dangerous, although he later qualified that statement.  However these facts distinguished this case from many of the other examples which Mr Souter cited to the court where often the offender did not know he was committing an offence.”

 

Submission on Behalf of the Appellant
[13]      We have narrated in some detail the submissions made to the sentencing judge as counsel in written and oral submissions relied in substance on the same facts and circumstances and sought to draw support from the same cases.  Counsel did not submit that the sentencing judge had failed to take into account some important fact or had failed to properly apply some legal principle.  The submission made to this court was to the effect that when all the circumstances relative to the offence or the offender are taken into account, the judge erred in concluding that there were no exceptional circumstances. 

 

Decision and Reasons

[14]      In relying on the favourable mitigating circumstances, counsel seemed to suggest at one part of the oral submission that it would be difficult to find a better example of exceptional circumstances.  We do not accept that.  This case plainly does not have the features identified in paragraph 15 of Zakir Rehman which, in our opinion, give good examples such as an offender who is unfit to serve a five years sentence or an offender who is of very advanced years.  Another good example is the psychological condition of the accused in Booker who suffered from various disorders, including autistic spectrum difficulties, for which he was in receipt of medication and his immaturity which would cause him to find a prison environment particularly difficult.  The court is not limited of course to such examples and we accept that the court should have regard to all the circumstances both relating to the offence and to the circumstances of the offender.  Other cases are of limited assistance as each case is very fact dependent.

[15]      In enacting section 51A of the Firearms Act and in classifying disguised stun‑guns as firearms, Parliament plainly intended to protect the public against the obvious dangers arising from unlawful possession of disguised stun‑guns.  Parliament did this by providing a mandatory sentencing regime which (in the absence of exceptional circumstances) gives greater emphasis to considerations of retribution and deterrence (both general and individual) than the personal circumstances of the individual offender.  In order to identify exceptional circumstances for the purposes of the legislation, we consider it is important both to have regard to the policy and intention of Parliament and the need to avoid a sentence which is arbitrary and disproportionate in respect of a particular individual.  We consider that if in a particular case, taking account of all the relevant circumstances, it appears that the case falls outside the range of cases which Parliament can be taken to have had in mind as the norm, an imposition of the statutory minimum may be said to be arbitrary and disproportionate.  In such a case the court may have little difficulty in concluding that the exceptional circumstances provision applies. 

[16]      In our opinion, the circumstances of the offence in this case are very serious and plainly fell within the type of offending behaviour which Parliament intended to prevent.  The appellant brought into an airport in Scotland multiple disguised stun‑guns along with multiple batons which were obviously offensive weapons.  He deliberately purchased these weapons with a view to importing them by plane into Scotland.  All the weapons were to the knowledge of the appellant in working order and had with them the means of causing harm.  We accept that the appellant may not have realised that the stun‑guns were categorised as firearms and that there was potentially a minimum sentence of 5 years imprisonment for possession, but we consider that he knew that they were illegal and dangerous.  He took no steps to check their status.  His intentions were to give most of the stun‑guns away to others and put them out of his control. 

[16]      We consider that the type of offending to which the appellant pled guilty was deliberate offending with the potential to cause serious public harm of the type which Parliament intended to prevent by this sentencing regime.  Had the appellant not prayed in aid substantial mitigating features, a sentence in excess of the minimum sentence might well have been justified in all the circumstances of this case.

[17]      We consider that the sentencing judge gave very careful consideration to the question whether there were exceptional circumstances in the context of the statutory provisions of the 1968 Act.  We are not persuaded that he was clearly wrong and indeed we consider that he was correct in his conclusion and his reasoning.  We consider that he gave weight to the mitigating features by imposing a minimum sentence and by making the sentences imposed for other serious offences concurrent. 

[18]      For these reasons the appeal is refused.