Nancarrow [2019] EWCA Crim 470; [2019] 2 Cr.App.R.(S.) 4

The appellant pleaded guilty to possessing prohibited firearms (4 canisters of CS gas), disguised firearms (5 stun guns disguised as mobile phones), a disguised firearm (electrified knuckle duster) and extreme pornography. He received a total 5 years’ imprisonment.

The main ground of appeal was that the judge should have found exceptional circumstances to justify not imposing the statutory minimum term for the disguised firearm offences.

The appellant had lived at a house with his partner and then as a lodger when the relationship ended, he left the house in May 2015 but left most of his belongings. A month later the police attended as a result of an incident, not involving the appellant, and found the items above. A text message sent by him was found which read “havu stil got my stun guns that you took or hav u sold them cos I need them back”.

Guilty pleas were entered at PTPH on a basis that was not accepted by the Crown. This was that the appellant had ordered the stun guns and cannisters from China in two consecutive orders, the second order being placed because he thought the first wasn’t going to arrive. Apart from unpacking them and checking they wereoperational he said they had been kept in packaging in a metal case without the adapters to charge them. They were bought as he said he was moving to an area of high crime and he felt unsafe.

At a Newton hearing his evidence was rejected as to the circumstances in the written basis, due to matters undermining his evidence. In particular there were two separate purchases of a number of stun guns, if they were for self-defence it did not make sense to keep them uncharged in the garage, the text sent indicated he had provided them to another to use, sell or at least allow to be taken, and the fact they were retained when he moved from the area he said was unsafe. A report from a psychiatrist said he suffered from PTSD, depressive disorder, harmful use of alcohol and agoraphobia.

The sentencing judge treated this finding as conclusive against exceptional circumstances, although the psychiatric report was accepted that alone could not amount to exceptional circumstances. The sentence for possession of extreme pornography would usually be consecutive but was ordered to run concurrently as a matter of totality.

Held: the rejection of the basis of plea as being determinative against there being exceptional circumstances was erroneous. The questions in Avis ought to have been considered and he was mistaken in thinking the report should be ignored as a holistic approach was required. An approach on the basis of Avis, however, still left nothing that could point to exceptional circumstances. The appeal was dismissed.