Matthew Harwozinski [2019] EWCA Crim 1195

R v Matthew Lee Harwozinski [2019] EWCA Crim 1195 concerned an appeal by a man who pleaded guilty to conspiracy to possess firearms with intent to enable others to endanger life and related offences and was sentenced to life imprisonment with a minimum term of 11 years and 8 months, concurrent to determinate terms totalling 21 years’ imprisonment. The Court of Appeal granted leave and allowed the appeal in part.

Mr Harwozinski pleaded guilty on 6 July 2018 at Luton Crown Court to evasion of the prohibition on the importation of firearms and ammunition contrary to section 170(1)(a)(iii) of the Customs and Excise Management Act 1979, conspiracy to convert weapons contrary to section 1(1) of the Criminal Law Act 1977, conspiracy to manufacture ammunition specified in section 5(1) of the Firearms Act 1968, and conspiracy to possess firearms with intent to enable others to endanger life. On 24 August 2018 His Honour Judge Bright QC sentenced him to life imprisonment with a minimum term of 11 years and 8 months less 209 days on remand on count four, with concurrent determinate terms of 21 years on counts one and three and five years on count two. His co-accused, Ricky Garner, who acted as armourer by remodelling blank firing weapons and manufacturing live ammunition, received a determinate term of 20 years and 3 months.

Between May 2017 and January 2018 Mr Harwozinski purchased over 80 blank firing handguns, at least 19 of which were fully automatic, and over 1,800 rounds of blank firing ammunition from the Czech Republic. He opened an email account for the purpose on 28 April 2017. A computer at Mr Garner’s address showed searches for Zokari handguns. A lathe was acquired for Mr Garner in June 2017, and in August research was conducted into ammunition conversion. The applicant paid an arms supplier in the Czech Republic on several occasions. Identifiable importations comprised 19 fully automatic and 48 semi-automatic pistols at a cost exceeding £4,750. Analysis indicated that at least a further 13 pistols and 250 rounds of ammunition were likely purchased in May and June. These weapons, with suitable ammunition, were supplied to the criminal underworld. Seven modified handguns with ammunition had been recovered, leading to charges against a number of suspects, and a separate seizure led to a further suspect being charged.

The modified weapons were discharged in public on numerous occasions, endangering life. On one occasion their use caused injury in circumstances amounting to attempted murder. Many of the weapons were recovered from premises or from individuals possessing substantial quantities of class A drugs. The weapons travelled far beyond Bedfordshire and Ilford, where Mr Garner established his workshop. Seizures continued after Mr Harwozinski’s arrest on 25 June 2018. On 8 September 2017 a converted Zokari 906 semi-automatic pistol was recovered with drugs and cash in Bedford. On 3 October 2017 shots were fired from a scooter in Luton; an unspent round matched those produced by Mr Garner. On 21 October 2017 two men with gang links were fired upon in Romford, one being struck in the leg. Shots were fired at separate locations in Luton on 19 December 2017. On 8 January 2018 a converted Zokari 914 fully automatic pistol and two rounds were recovered on arrest; DNA linked the weapon to Mr Harwozinski. A search of his address revealed two converted semi-automatic weapons, twelve rounds of modified ammunition and one spent round. Further seizures in January linked the operation to class A drugs. On 27 January 2018 a man with gang connections was shot in the leg in Wood Green; in his car was a round converted by the defendants with crack cocaine and heroin. On 27 March 2018 officers in Birmingham recovered two bullets, one modified by the defendants, with over £2,000 in cash. On 8 June 2018 a search in Nottingham revealed a converted Zokari 906 semi-automatic pistol, four rounds of blank firing ammunition fitted with improvised projectiles, over four kilograms of cannabis and six grammes of crack cocaine. On 18 June 2018 a carrier bag containing a converted Bruni pistol and six rounds was found hidden in undergrowth in Luton.

At the plea and trial preparation hearing on 7 March 2018 the case did not proceed because the prosecution was not ready. The adjourned hearing on 3 May saw Mr Harwozinski enter not guilty pleas whilst Mr Garner admitted guilt. Following discussions Mr Harwozinski entered guilty pleas and tendered a basis of plea on 7 July 2018 which amounted principally to mitigation but asserted he worked under instruction from another. The judge observed that the Crown did not agree but did not precipitate a Newton hearing. The judge allowed a discount for plea of 22.5 per cent because the initial indication at the plea and trial preparation hearing was not guilty, although counsel had soon clarified there would not be a trial.

Mr Harwozinski was 29 at sentence. He had findings of guilt dating from 2005 when aged 16, with regular appearances in the magistrates’ court until 2010. On 28 June 2010 he was sentenced at Luton Crown Court to 30 months’ imprisonment for an offence under section 18 of the Offences against the Person Act 1861. This was an offence contained within Schedule 15B to the Criminal Justice Act 2003, as amended by Schedule 18 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The judge quoted verbatim from the judgment of the Lord Chief Justice in R v Wilkinson [2009] EWCA Crim 1952 and referred to sections 224A and 225 of the Criminal Justice Act 2003. He stated that section 224A was relevant because the applicant had committed a second listed offence, making him liable to life imprisonment irrespective of any issues of dangerousness, but that he wished to focus on dangerousness as essential to the case. The judge posed the question whether Mr Harwozinski met the criteria in section 225 and answered in the affirmative. The Court of Appeal agreed with that assessment, and counsel for the applicant did not seriously challenge it. Having reached this conclusion Judge Bright formulated the minimum term by determining that the proper determinate sentence after trial would have been one of 30 years’ imprisonment. He applied the 22.5 per cent discount, producing a nominal determinate sentence of 23 years and 4 months, which was then halved to produce the minimum term on count four.

On behalf of Mr Harwozinski Mr Kirk argued that the provisional sentence before reduction for guilty plea of 30 years selected by the sentencing judge was demonstrably too high. He supplied a digest of cases and drew the Court’s attention particularly to paragraph 7(i) of the judgment of the Lord Chief Justice in R v Stephenson [2016] 2 Cr App R (S) 12 (Attorney-General’s References Nos 128 to 141 of 2015 and 8 to 10 of 2016). That paragraph stated that for the leader of an enterprise in the business of supplying guns and lethal ammunition a very long determinate sentence was required. It appeared to have been assumed that the maximum determinate sentence was 22 years for a large scale enterprise engaged in the supply of guns because the minimum term imposed on the head of the enterprise in Wilkinson was 11 years, but no such maximum was indicated in that case. In Stephenson the Court considered that the appropriate sentence for the leader was 25 years prior to discount for plea but made clear that courts should not take this as a maximum. A materially greater sentence would be appropriate if there was any previous conviction for offences involving guns. It could make no difference that the criminal enterprise was engaged in converting or acquiring guns rather than importing them; the same level of sentence was appropriate as the essence of the criminality was the organisation of a criminal enterprise to supply guns and lethal ammunition to customers, irrespective of the source of the guns and ammunition.

The Court reminded itself that a sentence must be manifestly excessive or wrong in principle before the Court of Appeal would interfere. Any enterprise in which firearms were made available to criminals to inflict fear, maim or kill would always be treated as being of the utmost seriousness. This applicant placed potentially 80 weapons and ample ammunition in the hands of dangerous people who were very likely to, and indeed did, use them. Nevertheless, the Court was persuaded by Mr Kirk’s submissions that this was not a case where a provisional sentence before deduction for guilty plea of 30 years was appropriate. The appropriate starting point would have been one of 25 years and the judge erred to this extent, despite his careful analysis of the facts and authorities. That needed to be reduced by the 22.5 per cent referred to by the sentencing judge to represent credit for the applicant’s guilty plea and then halved to reflect the fact that this was the minimum term as part of a life sentence. That yielded a minimum term of nine years and 8 months before release could be considered.

That determination in relation to count four had a knock-on effect on counts one and three because the decision that there should be determinate concurrent sentences of 21 years’ imprisonment would mean that the time served for those determinate sentences would be longer than the minimum term. Accordingly the Court reduced those sentences to 18 years’ imprisonment on count one, left count two at five years, and reduced count three to 18 years’ imprisonment. On count four the sentence remained life imprisonment but the Court substituted a minimum term of nine years and 8 months, less 209 days spent on remand, before the applicant could be considered for parole. In accordance with this decision the Court granted the extension of time of four days and granted leave to appeal.

In short, the Court reduced the minimum term from 11 years and 8 months to nine years and 8 months, holding that the appropriate provisional determinate sentence was 25 years rather than 30 years, and adjusted the concurrent determinate sentences downward to 18 years on counts one and three to avoid their exceeding the minimum term under the life sentence.

Philip Edward N [2009] EWCA Crim 1952
Stephenson and Others [2016] EWCA Crim 54; [2016] 2 Cr. App. R. (S) 12