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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 21

HCA/2016/000649/XC

 

Lord Brodie

Lord Turnbull

 

OPINION OF THE COURT

delivered by LORD TURNBULL

in

APPEAL AGAINST SENTENCE

by

HENRY MORTON

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  A Ogg (sol adv);  McCusker McElroy & Gallanagh, Paisley

Respondent:  M Hughes, AD;  Crown Agent

12 April 2017

[1]        The appellant Henry Morton is 37 years old.  On 16 September 2014 he returned from holiday in Bulgaria to Glasgow Airport, where he was found to have two stun guns disguised as mobile telephones within his luggage.

[2]        On 29 June 2016, at the High Court in Edinburgh, he pled guilty to two charges under the Firearms Act 1968.  The first was a contravention of section 5(1A)(a), relating to possession of a firearm disguised as another object, namely the two stun guns, and the second was a contravention of section 1(1)(a) of the Act, possession of firearms without being the holder of a certificate.

[3]        Section 51A of the Firearms Act requires the court to impose a minimum sentence of 5 years’ imprisonment for a contravention of section 5(1A)(a) of the Act, “unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it in not doing so”.  Having heard a proof in mitigation at which the appellant, his former partner, two psychologists and a forensic firearms examiner all gave evidence, the presiding judge was not so satisfied and imposed a sentence of 5 years’ imprisonment.  He imposed a concurrent sentence of 21 months’ imprisonment on the remaining charge.

[4]        The appellant was granted leave to appeal against sentence on a ground which argued that the judge had erred in determining that there were no exceptional circumstances such as would permit him to impose a sentence of less than the minimum term.

 

The Circumstances Of The Case
[5]        The appellant had holidayed in Bulgaria on his own.  Whilst there he purchased two stun guns which were on open sale in a supermarket.  There was a picture of the stun gun on each of the boxes in which they were contained and a woman employee at the supermarket was testing them.  He knew what he was purchasing.  Each was disguised to look like a mobile telephone.

[6]        Whilst in Bulgaria the appellant posted a film on Facebook of himself holding one of the stun guns and demonstrating it operating.  He then said:  “You fuck with me you get tasered son … and that’s the truth!” 

[7]        He also posted an entry to say that he was in Bulgaria and was going to bring back stun guns into the UK and try to sell them for £300 each.  An analysis of his telephone showed that he had sent a number of messages about the stun guns, one of which said:  “Watch this I will end up in a Bulgaria jail”

[8]        Having been taken into detention at Glasgow Airport the appellant was interviewed.  In the course of that exchange he told the officers that he thought each of the two items was a genuine iPhone and said that he had not tried or inspected either of them.  After a lengthy discussion about the price and the Bulgarian exchange-rate, he appeared to agree that he had paid around £450 for the two items.  He denied knowing that the items were stun guns.

[9]        In his evidence during the proof in mitigation the appellant said that he had been drinking a lot of the time whilst on holiday as the price of alcohol was very low.  He said he was drunk when he posted the video and couldn’t remember much about it.  He give evidence that he had no intention of using the stun guns to cause harm and that he thought it would be all right to bring them back to this country because they were on open sale in Bulgaria.  He did not know what he would have done with them had he not been stopped but he did not intend to sell them on.  It was only when he saw a sign at Glasgow Airport saying that such items were illegal that he realised they could not be brought into this country.  He then became frightened and that was why he lied to the police about what he thought the items were during his interview.

 

The Appellant’s Personal Circumstances
[10]      The appellant had been in a relationship with Donna Simpson until about seven years prior to the offence.  They had four children together, now aged 16, 15, 12 and 10.  The oldest two boys attended special schools, one because of autism and the other because of learning disabilities.  The accused was actively involved in the care of his children and they stayed with him each weekend from Friday through to Sunday.

 

Intellectual Functioning
[11]      The evidence of the two psychologists established that the appellant’s overall cognitive functioning was within the extremely low range, meaning that he struggled to cope with his emotional difficulties and had a tendency to act impulsively.  The ability to evaluate and fully consider the consequences of his actions in advance had been a lifelong difficulty for him but he was unlikely to be suffering from a major mental disorder which would have impaired his decision making or his judgement.  He posed a low risk of serious harm to others.  He was able to understand the police caution. 

 

The Trial Judge’s Decision
[12]      The trial judge took account of the cases of R v Rehman and Wood [2005] EWCA Crim 2056, Evans v The Queen [2005] EWCA Crim 1811, HM Advocate v McGovern 2007 HCJAC 21, Cochrane v HM Advocate [2010] HCJAC 117 and R v Ramzan (Rouf Mohammed) [2013] 2 Cr App R (S) 33.  Applying the guidance drawn from these cases he explained that he considered all the circumstances of the case and took a holistic approach.  He stated that the feature which distinguished the appellant’s case, and in particular what distinguished it from the case of Cochrane, was the appellant’s knowledge that what he was doing was wrong.  He took the view that the appellant’s previous conviction for an air gun offence had very slight significance and gave it very little weight.  He took account of the appellant’s caring duties for his children and his good relationship with them but he considered that these features did not outweigh the other factors in considering the issue of “exceptional circumstances”. 

[13]      In conclusion, the sentencing judge took the view that the appellant’s personal circumstances did not permit him to depart from the minimum term set down by Parliament.  In relation to the circumstances of the offence, he observed that the appellant was planning to bring the guns into the United Kingdom with the intention of trying to sell them for £300 each.  When stopped at Glasgow Airport he falsely claimed that the telephones were genuine and that he had not tried them out.  The judge concluded that the appellant was well aware that what he was doing was wrong.  Again there was no exceptionality demonstrated such as would permit him to depart from the minimum term.

 

Submissions For The Appellant
[14]      In presenting her submissions on behalf of the appellant Ms Ogg relied on the cases which had been before the sentencing judge and the further cases  of Attorney General’s Reference (No 82 of 2012) [2013] 2 Cr App R (S)  64, R v Stoker [2014] 1 Cr App R (S) 47, R v Zhekov [2014] 1 Cr App R (S) 69, R v Sayer [2014] EWCA Crim 2197, R v Withers [2015] 1 Cr App R (S) 64, R v Peng Zhao [2016] EWCA Crim 1210 and Dinsmore v HM Advocate [2017] HCJAC 11, all of which were offered as examples of different situations in which exceptional circumstances had, or had not, been found to be present.

[15]      Ms Ogg also referred to the case of R v Avis & Ors [1998] 2 Cr App R (S) 178 which she submitted was helpful.  That case set out what had come to be referred to as the four Avis questions in subsequent English decisions concerning firearms.  The questions were:

1.         What sort of weapon was involved?

2.         What use had been made of the firearm?

3.         With what intention (if any) did the defendant possess or use the firearm?

4.         What was the defendant’s record?

[16]      It was submitted that the answers to these four questions would be important in the assessment of sentencing in any firearms case and that they could also assist in determining whether exceptionality was present in any given case.  By way of example, the answer to the first Avis question in the present case would be that the appellant was in possession of non-lethal weapons which could not discharge projectiles.  The answer to the third question was that he had no intention to do anything with the items.  These answers had a material bearing on the question of whether or not the circumstances of the offence disclosed the sort of exceptionality which would permit a sentencing judge to depart from the minimum term.

[17]      Ms Ogg also submitted that following the case of R v Rehman and Wood a number of subsequent English cases had recognised that a deterrent sentence would have no effect upon an offender who did not realise that he was doing anything wrong.  So if an individual appellant was unaware that possession of such items was illegal then the imposition of the minimum term might result in an arbitrary and disproportionate sentence.  To put the matter another way, an offender who did not know that possession of such items was unlawful might be able to demonstrate that the relevant exceptionality was present in his personal circumstances.

[18]      It was submitted that the trial judge had made a number of errors in the application of the guidance to be drawn from the case law and in the weight which he had attached to aspects of the appellant’s circumstances.  He had not addressed the Avis questions.  He wrongly considered it to be irrelevant that the weapons in question did not fire bullets, he gave insufficient weight to the appellant’s low risk assessment, he gave insufficient weight to the appellant’s personal circumstances, in particular the content of the psychological reports, he gave insufficient weight to the fact that he provided care to his children with special needs and he was wrong to have placed any weight at all on the facts of the appellant’s previous conviction for an offence involving an air gun.  Ms Ogg submitted that if the judge had properly adopted a holistic approach, as approved of in Rehman, then he would have appreciated that the relevant exceptional circumstances were present in the appellant’s case.

[19]      In addressing what the appellant has said in the proof in mitigation, Ms Ogg submitted that the judge had believed his evidence that he did not know it was illegal to possess stun guns in the United Kingdom.  In the alternative, she submitted that the judge had approached the assessment of this evidence incorrectly. 

 

Discussion
[20]      It is correct to observe that in decisions involving sentencing in relation to possession of stun guns disguised as other objects a number of English courts, either at first instance or at appellate level, have sought to take account of the four Avis questions.  Others have not however - see for example the decision of the court given by Lord Justice Treacy in Attorney General’s Reference (No 82 of 2012).  We note that the case of Avis was decided, and the questions formulated, prior to the introduction of the minimum sentence requirement for an offence involving a firearm disguised as another object.  It does not appear to us that the questions were designed to identify the presence of exceptionality for the purposes of that subsequent statutory provision.  We also note that in the case of R v Jordan, Alleyne and Redfern [2004] EWCA Crim 3291, at paragraph 30, the court explained that once a judge had properly identified exceptional circumstances the sentence was at large.  In that context it was observed that he would take into account the guideline case of Avis. The court also pointed out that cases in which real exceptional circumstances were present would be rare. That respectfully appears to us to be a proper approach. In Avis six otherwise unrelated appeals had been brought together in order for the Court of Appeal to review the appropriate level of sentence in respect of various offences under the Firearms Act. The review was prompted by three considerations: (1) there had been a number of recent cases where the Appeal Court had criticised sentences as inadequately reflecting the gravity of the offence; (2) Parliament had recently increased the maximum terms of imprisonment which might be imposed and (3) there was reason to believe that there had been an increase in such offences. While statutory maxima were in place the offences under consideration were offences where sentencers had discretion as to what sentence to impose. The purpose of the judgment in Avis was to provide guidance as to how that discretion should be exercised over a range of offences of varying severity. The Avis questions have to be seen in that context. They provide an analytical structure for sentencers when exercising a discretion which is unrestricted other than by the statutory maximum. This is not the situation faced by the sentencer who has to consider the application of section 51A of the 1968 Act. Parliament has intervened to limit his discretion unless there are exceptional circumstances. The Avis questions have no very obvious role in determining whether there are exceptional circumstances. However where there are exceptional circumstances and the level of appropriate sentence comes to be at large they may come to be of assistance.

[21]      We consider that the sentencing judge in the present case was correct to say that it was irrelevant for the purpose of considering exceptionality that the stun guns could not discharge bullets.  They are not designed to do so, yet still fall within the minimum sentencing provision. 

[22]      Nor can we accept Ms Ogg’s submission that the judge believed the appellant’s evidence that he did not know it was illegal to possess the stun guns in the United Kingdom.  It was obvious from the content of the messages which the appellant sent that he thought he might get into trouble with the stun guns in Bulgaria.  If he meant to convey that he thought possession was illegal there it seems he was wrong.  His messages included comments about what he might do with the items though, and, had he done so, that might well have had the effect which he predicted.  The judge considered this evidence, and the evidence about the other messages sent by the appellant, alongside the evidence of the appellant himself and the evidence given by the two psychologists.

[23]      The judge plainly disbelieved the appellant’s evidence.  Had he believed him he would have said so.  When the judge said in his report that the appellant knew what he was doing was wrong he quoted the passage from Evans v The Queen, which Lord Nimmo Smith had quoted in delivering the opinion of the court in HMA v McGovern:

“In our judgement, the appellant’s psychological condition does not constitute exceptional circumstances within the meaning of [section 51A].  The appellant knew what he was doing and knew what he was doing was wrong.  He retained the prohibited weapon with that knowledge.”

 

[24]      Ms Ogg sought to persuade us that, in some fashion, the judge had misunderstood what the court in Evans was meaning and had as a result gone wrong in his own assessment.  We can detect no error in the judge’s approach.  He held that the appellant knew that it was wrong to bring the stun guns into the United Kingdom.  The only question he was considering at that point was whether the appellant knew that it was illegal to introduce them.  The judge’s conclusion was easily available to him on the evidence of what the appellant had done and said whilst in Bulgaria.  He also had to take account of the evidence as to the appellant’s intellectual functioning and psychological makeup, and determine whether that had any impact on his level of understanding, such as might leave room for exceptional circumstances.  He pointed out that the appellant’s comments about what might happen to him in Bulgaria demonstrated awareness and that by referring to the items as “Tasers” he understood that they were serious weapons.  As it happens, the report from Dr Laithwaite, one of the psychologists led on the appellant’s behalf, also recorded that the appellant was in the habit of travelling alone, usually to an all-inclusive holiday.  He was able to make arrangements to travel to a foreign country and to find his way about once there.  He was able to manage money whilst on holiday and the differences in currency.  As in Evans, there was evidence about the appellant’s psychological makeup.  In the present case it included evidence of a tendency to act impulsively and of low intellect.  As in Evans, the judge held that these features did not prevent appellant from knowing that what he was doing was illegal.

[25]      In enacting section 51A of the Firearms Act, and in classifying disguised stun guns as firearms, Parliament intended to protect the public against the obvious dangers arising from unlawful possession of such items.  Parliament did this by providing a mandatory sentencing regime which 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 it is important 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.  If in any 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. 

[26]      In our opinion, the circumstances of the offence in the present case are serious and plainly fell within the type of offending behaviour which Parliament intended to prevent.  The appellant brought into an airport in Scotland two separate disguised stun guns which he had deliberately purchased with a view to importing them by plane into Scotland.  The weapons were to the knowledge of the appellant in working order and had with them the means of causing harm.  His intention was to sell the weapons on and thus to put them out of his own control.  In our opinion this was the deliberate type of offending with the potential to cause serious public harm which Parliament intended to prevent by the sentencing regime selected.

[27]      The sentencing judge did not error in his approach to the issues for his consideration and we consider that he was correct in his conclusions and his reasoning.  The appeal must therefore be refused.