Claire Hazel Francis [2019] EWCA Crim 1201
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Regina v Claire Hazel Francis [2019] EWCA Crim 1201 concerned an appeal against a sentence of five years’ imprisonment imposed by the Crown Court at Manchester Minshull Street for possession of a prohibited firearm, namely a sawn-off double-barrelled shotgun, following conviction after trial on 6 November 2018.
Mrs Francis was convicted of possessing a prohibited firearm and was sentenced on 4 December 2018 to the statutory minimum term of five years’ imprisonment under section 51A of the Firearms Act 1968. The weapon was forfeited and the surcharge order applied. She appealed on the ground that the judge should have found exceptional circumstances justifying a sentence below the statutory minimum.
The facts were that on 6 February 2017 officers from Greater Manchester Police searched a storage facility in the Whitfield area of Manchester and recovered a sawn-off double-barrelled shotgun. Analysis of the gun produced a mixed DNA profile from the fore-end grip from which the appellant’s DNA was extracted, though she was not then known to the police. She was subsequently arrested on an unrelated matter, a sample was taken, and that linked her to the weapon. The appellant attended voluntarily for interview on 22 August 2017. She provided a prepared statement denying possession but admitting that she may have touched the gun when rummaging through a bag left at her home by a man named Rico. After further legal advice she answered questions, stating that Rico was an associate of her partner, Mr Ahmad, and had come to her home unannounced approximately two years earlier. After Rico left she discovered he had left a bag under the stairs. When she put her hand in the bag she touched the gun, though did not see it in full. She telephoned Rico and he returned to collect the bag later that morning. She said she never saw him again. Subsequent analysis of her phone revealed deleted messages from two separate numbers each signed off in the name Rico.
At trial the appellant changed her account, saying she had telephoned Mr Ahmad rather than Rico on discovering the bag and only became suspicious when Rico returned to collect it. She said Rico had threatened to blow her head off when he realised she had looked inside. She further asserted that she had not realised the bag contained a firearm until arrested, and had lied to police because she feared that introducing Mr Ahmad’s name might cause her solicitor, who had previously represented him, to cease acting for her. The jury plainly rejected this account.
The judge took note of the appellant’s age of thirty-four, that she was the mother of an eight-year-old son, had worked hard all her life and was essentially of good character. Having heard the trial, the judge passed sentence on the basis that the bag was left at her property by someone named Rico, that she realised what was in the bag when she touched the firearm, that she telephoned Rico and demanded that he collect it, which he did shortly after, that Rico had originally gone to her property uninvited, and that she did not have any ulterior motive in relation to the weapon and was not connected to any serious crime. However, she knew what it was and the gravamen of the offence was that the firearm had been allowed back into circulation. The judge sentenced on the basis that, albeit for a limited time, the appellant was knowingly in possession of a sawn-off shotgun which she allowed back into circulation.
The judge properly reviewed the questions posed in R v Avis. As to the type of weapon, it was a nasty weapon: a sawn-off shotgun. As to what use had been made of it, the judge declined to speculate but commented that it had been found along with other firearms during inquiries relating to serious crime. As to the appellant’s intention when she possessed it, she had wanted to get rid of it but implicitly it was then going back into circulation. As to her record, she was a woman of good character. The judge considered a number of cases including R v Rehman and Wood [2005] EWCA Crim 2056 to distil the principles applicable when considering exceptional circumstances. He was mindful of not undermining the intention of Parliament by finding such circumstances too easily. The dangers of gun crime were well known and the purpose of the minimum sentence was to deter people from committing such offences, particularly those with personal mitigation and vulnerabilities who might be used by others. The judge accepted that he had to approach the question holistically. Whatever sentence was passed, he doubted the appellant would appear before the court again. Given the basis on which he passed sentence, he did not find exceptional circumstances notwithstanding the appellant’s good character, mental health difficulties and the devastating impact that a lengthy custodial sentence would have on her and her young son. The judge properly directed himself to R v Petherick [2012] EWCA Crim 2214, which offered guidance where family rights were engaged. Not without considerable hesitation the judge imposed the mandatory minimum sentence of five years’ imprisonment.
The pre-sentence report assessed the appellant as low risk of re-offending. It described how she suffered from depression and anxiety and expressed concerns about an increased risk of self-harm in custody. An addendum report proposed a community-based sentence if the court found exceptional circumstances and assessed her as suitable for a rehabilitation activity requirement.
The essence of the appeal was that the judge was wrong not to find exceptional circumstances. The court acknowledged that the dangers of firearms being available to criminals were all too obvious and that criminals, being aware of the penalties, sought to use others to hold or transport weapons in order to reduce their own exposure. That those people placed those they used in a very difficult situation was by no means exceptional. Parliament had chosen to mandate a minimum sentence in the absence of special circumstances and a key element of that was the deterrent effect on those who may be induced by one means or other to play a role, whether harbouring or transporting a weapon. It was not the proper function of the sentencing court or the Court of Appeal to strain to find exceptional circumstances which were not in fact uncommon.
The Court of Appeal had regard to R v Rehman and other cases but emphasised that each case would turn on its own facts. It had regard to the basis of sentence carefully set out by the judge, who had the advantage of presiding over the trial, and saw no reason to depart from it. However, on that basis the appellant was caught up unwillingly in a very difficult situation. The court agreed with Ms Hargreaves’ submissions that this was not a case where the gun was left by a person that she had chosen to associate with or bring into her life. The connection was more tenuous. The appellant’s partner worked as a personal trainer and Rico was one of his clients. She did not volunteer to harbour an object; rather, she found that it had been left at her home without her knowledge. Once the nature of the item became clear, the appellant, in panic, immediately demanded its removal, which occurred, and thus she was in knowing possession for a brief period. On the other hand, the weapon itself was one that had no legitimate purpose and upon the jury’s verdict the appellant could only have believed that she was returning it into the possession of a person for criminal purposes.
There was cogent, but not in itself exceptional, personal mitigation, most particularly as to her mental health and that she was the mother of a son then aged nine who in her absence was being cared for by his father. In addition, the appellant had suffered from depression predating the offence and, as the pre-sentence report set out, had gone through a number of traumatic events. Insofar as there was delay in bringing the matter to a conclusion, the appellant could not pray that in aid in the light of the necessary work to reveal the deleted messages on her phone and her decision to contest the case.
The court recognised that this was, as the judge had found, a difficult case. It concluded that the circumstances were such that the judge should have found there to be exceptional circumstances. That said, this remained a serious offence, one in which an immediate sentence of imprisonment was necessary and where the appellant could claim no credit for plea having contested the matter throughout. The court allowed the appeal to the extent that it found exceptional circumstances. It quashed the sentence of five years and imposed in its place a sentence of three years’ imprisonment. In short, exceptional circumstances were found based on the combination of the appellant’s unwilling and brief involvement, the tenuous connection to the person who left the weapon, and her personal mitigation, justifying a reduction from the five-year minimum term to three years’ imprisonment.