Hussain [2019] EWCA Crim 362

Mohammed Shahel Hussain [2019] EWCA Crim 362 was an appeal by the Court of Appeal (Criminal Division) comprising Flaux LJ, Sweeney J and Soole J in which the appellant, having been sentenced to a total of six years and two months’ detention in a young offender institution, succeeded in part. Leave to appeal was granted upon reference by the single judge.

The appellant had pleaded guilty to a series of offences committed in October and November 2017 when he was eighteen years old. On 17 October 2017 he had driven a Vauxhall Vectra whilst disqualified and uninsured, then with his passenger filled canisters with fuel worth £113 at a petrol station and made off without payment. He was arrested, charged and released on bail. On 16 November 2017 he was seen driving a stolen Audi A5 at 80 mph on the M62. When police pursued him he accelerated to over 110 mph, weaving between lanes, before performing a U-turn and driving the wrong way down the motorway and forcing lorries to take evasive action. He was arrested, charged with dangerous driving, driving whilst disqualified and driving uninsured, and again released on bail. On 18 November 2017 he drove a Vauxhall Vectra along roads with a 30 mph limit at speeds of up to 68 mph, overtaking on the wrong side of the carriageway, undertaking slow-moving vehicles, driving through four red lights, mounting the pavement, weaving in and out of traffic, forcing a cyclist to move, and driving the wrong way down the motorway for a second time. The pursuit lasted approximately six minutes before he abandoned the Vectra and hid in a nearby bush. A stun gun disguised as a mobile phone, later confirmed to be an electronic stun device and a disguised firearm within section 5(1A)(a) of the Firearms Act 1968, was recovered from under the driver’s seat. The appellant told police that the taser belonged to his passenger, who had shown it to him a few days earlier. The device had been disabled by an investigating officer before examination and could not be test-fired; there was no evidence of voltage capacity or actual use.

The appellant pleaded guilty to the first two groups of offences at an early stage. He pleaded not guilty to the firearms offence but on 9 July 2018, the day of trial, entered a guilty plea on a basis of plea that was not challenged by the Crown. That basis stated that he had seen the stun gun in the passenger’s possession before the incident and thought it a novelty or joke item; that he did not know it was a taser; that during the pursuit the passenger said he had a taser on him and did not want to be caught with it; that his main reason for driving away was to escape police because he was driving whilst disqualified and uninsured and had used drugs; that he was never in physical possession of the stun gun and did not see it on 18 November; that he accepted coming into joint possession only at the point when his passenger told him about the taser during the pursuit; and that he did not place the stun gun under the driver’s seat. The Crown did not seek a Newton hearing.

The judge sentenced the appellant, applying the basis of plea, to five years’ detention for the firearms offence, the statutory minimum under section 5(1A)(a) unless exceptional circumstances justified a lesser term. For the dangerous driving on 18 November he received twelve months’ detention concurrent; for driving whilst disqualified on that date, two months concurrent. For the dangerous driving on 16 November he received twelve months’ detention consecutive, with two months concurrent for driving whilst disqualified. For the theft on 17 October he received two months consecutive, with two months concurrent for driving whilst disqualified and no separate penalty for driving without insurance. The total was six years and two months’ detention, with a total driving disqualification of seven years and one month and an order for an extended driving test.

Before the judge, the appellant’s counsel submitted that exceptional circumstances existed by reason of the type of weapon (a stun gun, not a lethal firearm), the fact that it did not belong to the appellant and he was never in physical possession of it, that his legal possession was of a technical nature because the item was in his car, that the possession was of short duration, that he had no intention to possess or use it in the future, and that he had no convictions for weapons or violence. Reliance was placed on R v McMahon [2018] EWCA Crim 1296 and R v Rehman [2005] EWCA Crim 2056, the latter establishing that circumstances are exceptional where the minimum sentence would result in an arbitrary and disproportionate sentence. Counsel also relied on reports by a chartered forensic psychologist, which diagnosed a learning disability with an IQ below 70, a report from an intermediary, and a pre-sentence report referring to emotional, behavioural and social difficulties and vulnerability to negative peer pressure. The appellant had previous convictions including two for dangerous driving (for which he had received a detention and training order), two for driving whilst disqualified, and two for making off without payment and theft by shoplifting.

The judge took express account of McMahon, Rehman and R v Avis [1998] 2 Cr App R(S) 178, which identifies four questions usually appropriate in firearms sentencing: what sort of weapon is involved; what use has been made of it; with what intention did the defendant possess or use the weapon; and what is the defendant’s record, particularly in relation to firearms offences or violence. The judge concluded that there were no exceptional circumstances. He reasoned that the appellant was well aware of the stun gun being in the vehicle; that he took concerted and extremely dangerous action to avoid detection and recovery of the weapon; that he was on bail at the time for two earlier sets of offences; that he knew he was committing at least the offence of driving whilst disqualified; and that it was in those circumstances that he was in possession of the firearm. The judge accepted the appellant had difficulties in his life but stated that these had been previously indicated to the court and that it would be wrong for him to behave with impunity and rely again on those features to establish exceptional circumstances. The previous convictions aggravated the offending because they showed a willingness to avoid apprehension and behaviour causing significant risk of harm, particularly the previous convictions for dangerous driving.

On appeal, Mr Michael Knowles submitted that the judge gave insufficient weight to the matters raised in support of exceptional circumstances and failed to take account of, or give sufficient weight to, the type of weapon, the limited nature of possession, the lack of intention to possess or use in the future, and the absence of convictions for violence.

The Court of Appeal held that the judge would have been assisted if counsel for the prosecution and defence had referred him to other decisions concerning exceptional circumstances in disguised stun gun cases, in particular R v Withers [2015] EWCA Crim 132, R v Rogers [2016] EWCA Crim 801 and R v Paterson (8 November 2017, CA Ref 2017/01783/A1). In Withers, a stun gun disguised as a mobile phone found in the appellant’s flat, which she had accepted for protection from intruders, had not been used and the minimum term was quashed and replaced with two years’ imprisonment. In Rogers, the stun gun had been in the appellant’s possession for only five days, was not used save to demonstrate on himself what it did, and had been bought as a novelty; a sentence of two and a half years was substituted for the minimum term. The court emphasised that the decision in any case is fact specific and reiterated the Rehman test of an arbitrary and disproportionate sentence.

The court held that in the present case, on the terms of the unchallenged basis of plea, those undisputed facts provided support for counsel’s submissions that exceptional circumstances existed. In giving his reasons, the judge had not truly dealt with those submissions. If he had done so, he should have reached a conclusion in favour of the appellant. Applying the four Avis questions, the weapon did not shoot bullets; no use had been made of it; there was no intention on the part of the appellant to possess or use it in the future; and there were no previous convictions for firearms offences or violence. The court emphasised that this was a conclusion very much on the facts of the particular case and the terms of the unchallenged basis of plea. The court reiterated the guidance in R v Boyle [2018] EWCA Crim 2035 that once a judge concludes that exceptional circumstances exist, sentence is at large and credit for guilty plea can be afforded in the usual way.

The court determined that the appropriate sentence before credit for the guilty plea was three years’ detention, with a credit of ten per cent for the plea on the day of trial, producing a sentence of thirty-two months’ detention for the firearms offence. All other sentences were fully merited, not least against the background of the appellant’s repeated and very dangerous driving, and should not be disturbed. This produced a total sentence of thirty-two, plus twelve, plus two months, equalling forty-six months’ detention, which properly took account of totality.

Following a reference by the Registrar, the appellant also submitted that the disqualification from driving, the order for an extended test and the committal for sentence were each unlawful. The court agreed. The judge’s disqualification order had not identified the offences to which the four-year disqualification applied, nor had it properly distinguished between the extension period under section 35A of the Road Traffic Offenders Act 1988 (which relates only to motoring offences for which custody and disqualification are imposed) and any further uplift under section 35B (which relates to other offences carrying custody but not disqualification): see R v Needham [2016] EWCA Crim 455. The court quashed the existing disqualification order and imposed a total of four years’ concurrent discretionary disqualification for each dangerous driving offence (the mandatory minimum on this occasion being two years because of two previous disqualifications of at least fifty-six days within the preceding three years). The court imposed a section 35A extension period of twelve months (one-half of the two consecutive twelve-month sentences for dangerous driving) and a section 35B uplift of eleven months (one-half of the remaining custodial term of twenty-two months), producing a total disqualification period of five years and eleven months. As to the extended driving test, this could not be ordered because such an order was already in force from February 2017 pursuant to section 36(7) of the 1988 Act; the further order was therefore quashed.

The final matter concerned the committal for sentence by the magistrates’ court. The offences of theft, driving whilst disqualified and using a vehicle without insurance were summary-only matters committed pursuant to section 6 of the Powers of Criminal Courts (Sentencing) Act 2000, but that section applies only where the defendant has already been committed for sentence under one of the principal provisions of the 2000 Act. No such committal had occurred; the other matters had been sent for trial under section 51 of the Crime and Disorder Act 1998. The committal for sentence was therefore defective. Following the approach in R v James [2017] EWCA Crim 1367, the court reconstituted itself as a Divisional Court of the Queen’s Bench Division, granted permission to apply for judicial review, dispensed with all further procedural requirements, quashed the sentences imposed for the summary offences, and Flaux LJ, reconstituted as a District Judge (Magistrates’ Court) under section 66 of the Courts Act 2003, re-sentenced in the same terms as the Crown Court judge.

In short, the appeal was allowed; the minimum term for the firearms offence was reduced to thirty-two months on the basis of exceptional circumstances, reducing the total sentence to forty-six months’ detention; the disqualification period was corrected to five years and eleven months with the unlawful extended driving test order quashed; and the defective committal for sentence for the summary offences was corrected by reconstitution and re-sentencing.

Rogers; Tapecrown; Beaman [2016] EWCA Crim 801, [2016] 2 Cr App R (S) 36
McMahon [2018] EWCA Crim 1296
Rehman & Anor [2005] EWCA Crim 2056, [2006] 1 Cr App R (S) 77
Avis & Others [1998] 2 Cr App R (S) 178, [1998] 1 Cr App R 420
Withers [2015] EWCA Crim 132
Boyle [2018] EWCA Crim 2035
Needham and Others [2016] EWCA Crim 455; (2016) 2 Cr. App R. (S) 26; [2016] 1 WLR 4449
James [2017] EWCA Crim 1367