Gardener [2019] EWCA Crim 170
Summary
R v Gardener [2019] EWCA Crim 170 concerned an appeal against an extended sentence imposed for possession of an imitation firearm with intent to cause fear of violence. The Court of Appeal (Lord Justice Bean, Mr Justice Nicol and Mr Justice Popplewell) allowed the appeal in part, reducing the sentence on the ground that the starting point adopted by the judge was too close to the statutory maximum.
The applicant, Mr Gardener, pleaded guilty at Basildon Crown Court on 28 September 2017 to two counts of possessing an imitation firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968, and one count of simple possession of cannabis. On 6 December 2017 Her Honour Judge Leigh sentenced him to concurrent extended sentences of seven years and four months’ imprisonment on each firearms count, comprising a custodial term of five years and four months and an extended licence period of two years. A concurrent sentence of two weeks’ imprisonment was imposed for the cannabis offence. The applicant renewed his application for leave to appeal the firearms sentences after refusal by the single judge.
The offences arose from the breakdown of an eight-year relationship between Mr Gardener and Miss Lauren Carr, with whom he had two children. On 17 August 2017 Miss Carr left the home they shared and moved with the children to live with her mother and stepfather, Mr Clifford Connors. Over the following days Mr Gardener sent abusive and threatening text messages to Miss Carr, including remarks such as “You’re lucky I didn’t get someone to throw acid in your face” and “I’m going to fucking punch you”. He attended the address of Miss Carr’s mother and stepfather but was refused entry. In the early hours of 27 August 2017, following a night out drinking, he returned to the address and threatened to smash the windows and burn the house down while Miss Carr’s mother and stepfather were inside.
Subsequently Miss Carr received three short videos sent to her mobile phone by Mr Gardener. In the videos he could be seen inside a BMW vehicle in the company of another man, holding a shotgun with clingfilm over his hands. A pistol was also lying around in the car. He made remarks principally directed at Mr Connors, such as “I’m going to ruin your fucking life. Your fucking stepdaughter thinks she can hide but she can’t. I’ll fucking blow them away. Clifford, I’ll come and knock your fucking door off. I’ve got a semi-automatic. I swear to you I’m ready for any of you.” Miss Carr showed the videos to her parents and the police were called. Mr Gardener then sent text messages to Miss Carr asking her to retract the complaint. He was arrested on 29 August.
A pre-sentence report was obtained which assessed Mr Gardener as posing a high risk of serious harm to Miss Carr and her parents. The report noted his lack of insight into his abusive behaviour and his inability to acknowledge that his previous conduct towards Miss Carr had been harmful. The writer observed that his offending behaviour had quickly escalated in seriousness following the breakdown of the relationship, that there was a previous Domestic Violence Prevention Order in place as a result of his behaviour towards Miss Carr, and that he had a previous conviction for wounding. The report expressed concern that unless Mr Gardener could accept the breakdown of the relationship and acknowledge that he had been an abusive partner, the risk he posed to the victims was unlikely to reduce. The writer stated she was unable to determine whether the guns in the videos were real or imitation, noting that if he had access to real weapons this would significantly escalate the risk he posed.
In passing sentence Her Honour Judge Leigh referred to the background of threatening text messages sent by Mr Gardener to Miss Carr before the offences, including a threat to throw acid at her, and an incident where he drove at her in what the judge described as a clear attempt to frighten her. The judge noted that this background made it difficult to accept the mitigation advanced on his behalf concerning his remorse and that he was acting out of character. She stated that she was satisfied the criteria for an extended sentence were met given his previous convictions, the sentence available for the offence, his inability to accept his previous offending, and the risk he clearly still posed to Miss Carr.
On appeal Mr Michael Wolkind QC, who had not appeared below, advanced two grounds. First, he submitted that the judge had failed to have regard to the principle established in R v Burinskas [2014] 2 Cr App R (S) 45 and restated in R v Bourke [2017] EWCA Crim 2150 that the imposition of an extended sentence does not follow automatically from a finding of dangerousness and that it is not every case in which a defendant is found to pose a high risk of serious harm that it is necessary for the protection of the public to impose an extended sentence rather than a determinate sentence. Mr Wolkind submitted that while the judge’s sentencing remarks concluded with the words “the risk that you in my view so clearly still pose to her”, they did not go on to explain why that risk could not adequately be met by the imposition of a determinate sentence.
The court acknowledged that it was a little unfortunate that the passage from the judge’s sentencing remarks did not expressly add words along the lines that the risk was such that in the judge’s view it could not adequately be met by the imposition of a determinate sentence. However, the court considered that those missing words were clearly implicit. In light of the contents of the videos and Mr Gardener’s menacing behaviour in the days following Miss Carr’s departure from their home, the court held that the conclusion that he posed a high risk of serious harm to members of the public, whether to Miss Carr, her stepfather or anyone else, was amply justified. The contents of the pre-sentence report were very clear and the conclusion drawn as to risk by the writer was one which she was entitled to draw and which the judge was entitled to follow. The judge was entitled to form the view that a determinate sentence would be inadequate protection. The court considered that the finding of dangerousness was unimpeachable and the judge’s decision to impose an extended sentence rather than a determinate sentence was likewise unimpeachable.
The second ground of appeal concerned the length of the custodial term. Mr Wolkind submitted that in a case involving possession of an imitation firearm, a starting point of eight years was too close to the statutory maximum of 10 years under section 16A of the Firearms Act 1968, which applies equally whether the firearm is real or imitation. Although the weapons shown in the videos had not been recovered so that it was possible they were real firearms, the court noted that it must approach the case, as the learned judge clearly had done, on the assumption in the applicant’s favour that they were imitation firearms since that was the basis of the particulars of offence given in the indictment.
The grounds of appeal settled by trial counsel referred in particular to R v Oddy [2009] 2 Cr App R (S), where an appellant who had pleaded guilty to possession of a real firearm with intent to cause fear of violence had a sentence of seven years reduced to six years on appeal. In that case the gun had been pointed at the victim and then fired above her head, causing a bullet hole in the wall behind her, and the appellant had previous convictions for firearm offences. The point was made that if a starting point of the statutory maximum was inappropriate in the case of a real firearm fired in the presence of the victim, then the sentence for possession of an imitation firearm should adopt a considerably lower starting point. Reference was also made to Attorney General’s Reference Nos 20 and 21 of 2010 (Smith and Gethin), where a shortened shotgun was discharged through the letterbox of the front door of an occupied flat and the increased sentence imposed by the Court of Appeal on the reference was five years.
The court acknowledged that every case is different but emphasised that it must be assumed in Mr Gardener’s favour that these were imitation firearms. Another point in mitigation, although only a relatively minor one, was that the threats were not made face to face. The court stated that it had no sympathy with the applicant whose behaviour towards Miss Carr and her family had been shocking and terrifying. Nevertheless, the court considered that the starting point of eight years was somewhat too high having regard to the factors to which it had referred. The court considered that the correct starting point would have been seven years. Applying the one-third discount which the judge had given for the prompt plea of guilty, the custodial term was reduced to 56 months, plus the licence period of two years, making 80 months in all.
In short, the Court of Appeal quashed the concurrent extended sentences imposed by the judge on the firearms charges and substituted concurrent extended sentences of 80 months, comprising a custodial term of 56 months and an extended licence period of two years, allowing the appeal to that extent.
The applicant, Mr Gardener, pleaded guilty at Basildon Crown Court on 28 September 2017 to two counts of possessing an imitation firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968, and one count of simple possession of cannabis. On 6 December 2017 Her Honour Judge Leigh sentenced him to concurrent extended sentences of seven years and four months’ imprisonment on each firearms count, comprising a custodial term of five years and four months and an extended licence period of two years. A concurrent sentence of two weeks’ imprisonment was imposed for the cannabis offence. The applicant renewed his application for leave to appeal the firearms sentences after refusal by the single judge.
The offences arose from the breakdown of an eight-year relationship between Mr Gardener and Miss Lauren Carr, with whom he had two children. On 17 August 2017 Miss Carr left the home they shared and moved with the children to live with her mother and stepfather, Mr Clifford Connors. Over the following days Mr Gardener sent abusive and threatening text messages to Miss Carr, including remarks such as “You’re lucky I didn’t get someone to throw acid in your face” and “I’m going to fucking punch you”. He attended the address of Miss Carr’s mother and stepfather but was refused entry. In the early hours of 27 August 2017, following a night out drinking, he returned to the address and threatened to smash the windows and burn the house down while Miss Carr’s mother and stepfather were inside.
Subsequently Miss Carr received three short videos sent to her mobile phone by Mr Gardener. In the videos he could be seen inside a BMW vehicle in the company of another man, holding a shotgun with clingfilm over his hands. A pistol was also lying around in the car. He made remarks principally directed at Mr Connors, such as “I’m going to ruin your fucking life. Your fucking stepdaughter thinks she can hide but she can’t. I’ll fucking blow them away. Clifford, I’ll come and knock your fucking door off. I’ve got a semi-automatic. I swear to you I’m ready for any of you.” Miss Carr showed the videos to her parents and the police were called. Mr Gardener then sent text messages to Miss Carr asking her to retract the complaint. He was arrested on 29 August.
A pre-sentence report was obtained which assessed Mr Gardener as posing a high risk of serious harm to Miss Carr and her parents. The report noted his lack of insight into his abusive behaviour and his inability to acknowledge that his previous conduct towards Miss Carr had been harmful. The writer observed that his offending behaviour had quickly escalated in seriousness following the breakdown of the relationship, that there was a previous Domestic Violence Prevention Order in place as a result of his behaviour towards Miss Carr, and that he had a previous conviction for wounding. The report expressed concern that unless Mr Gardener could accept the breakdown of the relationship and acknowledge that he had been an abusive partner, the risk he posed to the victims was unlikely to reduce. The writer stated she was unable to determine whether the guns in the videos were real or imitation, noting that if he had access to real weapons this would significantly escalate the risk he posed.
In passing sentence Her Honour Judge Leigh referred to the background of threatening text messages sent by Mr Gardener to Miss Carr before the offences, including a threat to throw acid at her, and an incident where he drove at her in what the judge described as a clear attempt to frighten her. The judge noted that this background made it difficult to accept the mitigation advanced on his behalf concerning his remorse and that he was acting out of character. She stated that she was satisfied the criteria for an extended sentence were met given his previous convictions, the sentence available for the offence, his inability to accept his previous offending, and the risk he clearly still posed to Miss Carr.
On appeal Mr Michael Wolkind QC, who had not appeared below, advanced two grounds. First, he submitted that the judge had failed to have regard to the principle established in R v Burinskas [2014] 2 Cr App R (S) 45 and restated in R v Bourke [2017] EWCA Crim 2150 that the imposition of an extended sentence does not follow automatically from a finding of dangerousness and that it is not every case in which a defendant is found to pose a high risk of serious harm that it is necessary for the protection of the public to impose an extended sentence rather than a determinate sentence. Mr Wolkind submitted that while the judge’s sentencing remarks concluded with the words “the risk that you in my view so clearly still pose to her”, they did not go on to explain why that risk could not adequately be met by the imposition of a determinate sentence.
The court acknowledged that it was a little unfortunate that the passage from the judge’s sentencing remarks did not expressly add words along the lines that the risk was such that in the judge’s view it could not adequately be met by the imposition of a determinate sentence. However, the court considered that those missing words were clearly implicit. In light of the contents of the videos and Mr Gardener’s menacing behaviour in the days following Miss Carr’s departure from their home, the court held that the conclusion that he posed a high risk of serious harm to members of the public, whether to Miss Carr, her stepfather or anyone else, was amply justified. The contents of the pre-sentence report were very clear and the conclusion drawn as to risk by the writer was one which she was entitled to draw and which the judge was entitled to follow. The judge was entitled to form the view that a determinate sentence would be inadequate protection. The court considered that the finding of dangerousness was unimpeachable and the judge’s decision to impose an extended sentence rather than a determinate sentence was likewise unimpeachable.
The second ground of appeal concerned the length of the custodial term. Mr Wolkind submitted that in a case involving possession of an imitation firearm, a starting point of eight years was too close to the statutory maximum of 10 years under section 16A of the Firearms Act 1968, which applies equally whether the firearm is real or imitation. Although the weapons shown in the videos had not been recovered so that it was possible they were real firearms, the court noted that it must approach the case, as the learned judge clearly had done, on the assumption in the applicant’s favour that they were imitation firearms since that was the basis of the particulars of offence given in the indictment.
The grounds of appeal settled by trial counsel referred in particular to R v Oddy [2009] 2 Cr App R (S), where an appellant who had pleaded guilty to possession of a real firearm with intent to cause fear of violence had a sentence of seven years reduced to six years on appeal. In that case the gun had been pointed at the victim and then fired above her head, causing a bullet hole in the wall behind her, and the appellant had previous convictions for firearm offences. The point was made that if a starting point of the statutory maximum was inappropriate in the case of a real firearm fired in the presence of the victim, then the sentence for possession of an imitation firearm should adopt a considerably lower starting point. Reference was also made to Attorney General’s Reference Nos 20 and 21 of 2010 (Smith and Gethin), where a shortened shotgun was discharged through the letterbox of the front door of an occupied flat and the increased sentence imposed by the Court of Appeal on the reference was five years.
The court acknowledged that every case is different but emphasised that it must be assumed in Mr Gardener’s favour that these were imitation firearms. Another point in mitigation, although only a relatively minor one, was that the threats were not made face to face. The court stated that it had no sympathy with the applicant whose behaviour towards Miss Carr and her family had been shocking and terrifying. Nevertheless, the court considered that the starting point of eight years was somewhat too high having regard to the factors to which it had referred. The court considered that the correct starting point would have been seven years. Applying the one-third discount which the judge had given for the prompt plea of guilty, the custodial term was reduced to 56 months, plus the licence period of two years, making 80 months in all.
In short, the Court of Appeal quashed the concurrent extended sentences imposed by the judge on the firearms charges and substituted concurrent extended sentences of 80 months, comprising a custodial term of 56 months and an extended licence period of two years, allowing the appeal to that extent.
The appellant was sentenced to an extended sentence of 7 years and four months comprising a custodial term of five years and four months and an extended licence period of two years. He pleaded guilty to possession of an imitation firearm with intent to cause fear of violence. After his partner had left him he sent threatening messages and videos of him holding a shotgun.
The defence submitted, on appeal, that the probation officer and judge, in assessing dangerousness failed to remember that the imposition of an extended sentence does not follow automatically from a finding of dangerousness.
Held: it was unfortunate that the judge’s sentencing remarks, ending with the words “the risk that you in my view so clearly still pose to her”, did not go on to add something along the lines of “the risk is such that in my view it cannot adequately be met by the imposition of a determinate sentence.” The missing words were clearly implicit, and the judge was entitled to form the view that a determinate sentence would be inadequate protection. The starting point was, however, too high and the custodial term was reduced to 56 months.