McMahon [2018] EWCA Crim 1296
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R v Richard Anthony McMahon [2018] EWCA Crim 1296 was an appeal to the Court of Appeal, Criminal Division (Sir Brian Leveson, President of the Queen’s Bench Division, Mr Justice Jay and Mrs Justice McGowan DBE), which allowed the appeal and reduced a five-year sentence for possessing a disguised firearm to thirty months’ imprisonment.
The appellant had pleaded guilty to two counts. On count two, possessing a disguised firearm contrary to section 5(1A)(a) of the Firearms Act 1968, Mr Recorder Anthony Clover sitting at Kingston Crown Court sentenced him on 24 November 2017 to five years’ imprisonment. On count three, possession of cannabis contrary to section 5(1) of the Misuse of Drugs Act 1971, a concurrent sentence of three months’ imprisonment was imposed. Various destruction and forfeiture orders were also made.
On 16 November 2016 police searched the appellant’s bedroom in connection with other matters and found a stun gun disguised as a torch in the top drawer of a cupboard. The device looked like a torch save for a pointed electrode at the front powered by an internal battery. When tested it was in working order and electrical pulses were observed as blue sparks between the electrodes. The torch and laser functions were both operational. It was marketed as a non-lethal self-defence item designed to be discharged when held next to someone, functioning as a short-ranging incapacitating weapon. There was no evidence the weapon had ever been used and it was not capable of achieving a lethal outcome. Police also found two cannabis growing plants and 243 grams of harvested herbal cannabis in a small room and tent containing a light. The appellant admitted growing cannabis which he smoked due to anxiety and depression, with no intention of supplying it to anyone else. His plea to simple possession was accepted.
The appellant’s basis of plea, which the Crown accepted, was that the stun gun had been given to him as a present by his friend Marcus, who had been on holiday in Turkey and had since died. The appellant kept the item for sentimental reasons and also in case he should need a torch. He had never used the stun gun feature and did not know it was illegal to possess such an item. Although the prosecution commented on the plausibility of certain aspects, they accepted the basis and there was no Newton hearing.
The appellant was born on 1 April 1985 and had seven previous court appearances for seventeen offences between 2001 and 2009. The only matter of very marginal relevance was a 2003 conviction for possession of an offensive weapon in a public place, which was not a firearm. The pre-sentence report assessed him as a low risk of reoffending and of serious harm. He had complied with all bail conditions and demonstrated willingness to engage fully. The report proposed a suspended sentence of eighteen months suspended for two years should a custodial sentence be avoided. The appellant also relied on character evidence before the Recorder.
In his sentencing remarks the Recorder listed the exceptional circumstances advanced on behalf of the appellant, including his stated absence of belief that possession was unlawful. However, the Recorder concluded it was very difficult to believe the appellant was unaware that it was illegal to possess the item, observing he was a man with considerable experience of life. The court was satisfied there were no exceptional circumstances and that it would not be unjust to pass the minimum sentence.
The grounds of appeal, developed orally by Mr Robinson, were that the Recorder should have found exceptional circumstances in line with the approach in R v Rehman [2006] 1 Cr App R(S) 77. That guidance establishes that circumstances are to be regarded as exceptional where the minimum sentence would result in an arbitrary and disproportionate sentence, that a holistic rather than piecemeal approach was required, and that the deterrent purpose of the provision has no effect in relation to a person who was not aware he was committing an offence. Six matters were said to constitute exceptional circumstances: the appellant had not bought the item himself but was given it by someone else; albeit a firearm, the stun gun was a non-lethal weapon at the lower end of the scale of illegal firearms; the appellant had never used the stun gun feature; he had no intention of ever using it; he retained it for sentimental reasons; and he did not know it was illegal to possess it. Mr Robinson further submitted that the Recorder should not have rejected the basis of plea without a Newton hearing.
The court considered there was merit in these grounds. Save for observing that it was very difficult to believe the appellant was unaware that possessing the weapon was unlawful, the Recorder gave no other reasons for rejecting the appellant’s case. Although the appellant’s apparent ignorance may not have been particularly plausible, it was the basis of his plea and it was unfair to reject it without giving him the chance of a Newton hearing. The Recorder therefore erred in principle. It followed that the court could approach the sentencing exercise afresh, taking into account the exceptional circumstances advanced.
The court considered this was a somewhat unusual case meriting close examination. The considerations advanced on behalf of the appellant should be considered cumulatively against the policy backdrop of a provision requiring the imposition of a minimum sentence for deterrent reasons unless exceptional circumstances were made out. Taking all the circumstances into account on that cumulative basis and following Rehman, the court concluded that exceptional circumstances were made out. Particular regard was had to the characteristics of the weapon, its non-lethal features, the manner of the appellant’s acquisition of it and his ignorance of the inherent illegality of bare possession. The Recorder therefore erred and imposed a disproportionate sentence which was manifestly excessive.
In deciding the appropriate substitute sentence, the court took into account the appellant’s mitigation. However, the seriousness of the offence and the important element of deterrence which continued to underpin the Parliamentary purpose drove the court to conclude that the appellant should receive a custodial sentence which could not be suspended. The appeal was allowed to the extent that the sentence of five years’ imprisonment on count two was quashed and a sentence of thirty months’ imprisonment substituted. In short, exceptional circumstances within the meaning of Rehman were established by the cumulative effect of the circumstances, warranting a reduction from the statutory minimum but not the avoidance of immediate custody.