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

R v Nancarrow [2019] EWCA Crim 470 concerned an appeal against sentence by the Court of Appeal, which dismissed the appeal and upheld a five-year minimum term for possession of disguised firearms.

Mr Nancarrow pleaded guilty to possessing four CS gas canisters contrary to section 5(1)(b) of the Firearms Act 1968, possessing five stun guns disguised as mobile phones contrary to section 5(1A)(a), possessing an electrified knuckle-duster contrary to section 5(1A)(a), and possessing extreme pornographic images. The Recorder at Reading Crown Court sentenced him to two years’ imprisonment on count 1, five years on counts 2 and 3 (concurrent), and fifteen months on count 4 (concurrent), making a total of five years. The appellant was aged 51 and had no relevant previous convictions.

The firearms were found by police in June 2015 during searches of a house in Bracknell where the appellant had been living with Miss Kalsi, first as her partner and then as a lodger, until May 2015 when he moved out following a domestic violence incident. The stun guns and CS canisters were discovered in a silver briefcase and a gun cabinet in the garage. All but one of the stun guns were in working order, but only one was charged. A text message sent by the appellant shortly before he moved out asked another man whether he still had his stun guns or had sold them, because he needed them back.

The appellant was arrested in September 2015 and answered no comment in interviews conducted then and in March 2017. He initially pleaded not guilty when jointly charged with Miss Kalsi, but later pleaded guilty on a written basis of plea which was rejected by the Crown. At a Newton hearing in December 2017, the appellant gave evidence that he had ordered the items over the internet from China between 2009 and 2010 because he thought he was living in a high crime area and felt unsafe. He claimed there were two orders because he thought the first would not arrive. He said the items had been kept in their packaging without adapters needed to charge them. The Recorder rejected this account, being satisfied the appellant had not told the truth about how he acquired and kept the weapons, though he could not be sure why they had been bought or kept for so long.

The Recorder was referred to a psychiatric report from Dr Lally which detailed the appellant’s history of mental illness and alcoholism dating from 2006 when he became carer for his brother, who hanged himself in 2008. Dr Lally diagnosed recurrent depressive disorder of moderate severity, harmful use of alcohol, post-traumatic stress disorder and agoraphobia. He expressed doubts about the appellant’s ability to cope in custody and assessed him as a high risk of self-harm and suicide, though he did not recommend a mental health disposal. A pre-sentence report suggested the appellant could be managed in the community with treatment and rehabilitation requirements.

The sole ground of appeal was that the Recorder ought to have found exceptional circumstances justifying departure from the five-year minimum term prescribed by section 51A(2) of the Firearms Act 1968 for offences under section 5(1A)(a). When granting leave to appeal, the Full Court ordered a further psychiatric report. Dr Reid’s report of November 2018 confirmed Dr Lally’s diagnosis and detailed physical health issues including sleep apnoea, visual impairment, dysplasia and poor dentition which had led to a life-threatening infection requiring intensive care treatment. Dr Reid concluded that the appellant’s mental state was being satisfactorily managed in prison with appropriate medication and that the stress of imprisonment was counterbalanced by restricted access to alcohol, such that his condition was not worsening though unlikely to improve. The fears about his ability to cope in prison had not been validated.

The Court of Appeal set out the applicable principles derived from earlier authorities. Section 51A(2) requires imposition of a minimum five-year term unless there are exceptional circumstances relating to the offence or offender which justify not doing so. The statutory purpose is deterrence. Circumstances are exceptional if a five-year term would be arbitrary and disproportionate, but courts must not undermine Parliament’s intention by accepting too readily that circumstances are exceptional; they must be truly exceptional. A holistic approach is required, considering all circumstances together rather than separately. The court should have regard to the questions in R v Avis [1998] 2 Cr App R (S) 178 concerning the type of weapon, its use, the defendant’s intention in possessing it, and his record. Circumstances relating to the offender are important; unfitness to serve five years or significantly adverse health effects are relevant. Each case is fact-specific and the court will not readily interfere unless the judge was clearly wrong.

The Court of Appeal held that the Recorder had erred in treating his rejection of the basis of plea as determinative against exceptional circumstances and in thinking Dr Lally’s report should be ignored because insufficient on its own. The Recorder should have considered all matters together in a holistic approach, including the Avis questions, the appellant’s mental and physical health and all other circumstances. The court therefore considered afresh whether exceptional circumstances existed.

The court answered the Avis questions as follows. The weapons were not lethal but disguised stun guns can inflict serious injury and the policy of strict liability with deterrent minimum sentences reflects the dangers they pose. The text message was of considerable significance, revealing the appellant had put stun guns into circulation for use by another or for sale, or at least allowed that to occur, and wanted them back in 2015, presumably for his own use. Putting disguised firearms into circulation was the very mischief at which the mandatory sentence was aimed. Whilst it was impossible to say why the weapons were acquired or kept, the number of them, the manner of storage and the text belied any purely defensive motive and suggested subsequent dealing. This was not a case where items were acquired and left untouched and unthought about. The appellant’s record answered the fourth Avis question in his favour.

The court held that the Recorder, having properly rejected the appellant’s account, was left with no other explanation before him. This left the appellant unable to point to anything in the acquisition or possession of the weapons that could amount to exceptional circumstances. Only two matters potentially amounted to exceptional circumstances: the prosecution delay and his physical and mental health. The medical evidence indicated his health was being well managed in prison and it was not possible to say a five-year sentence was unduly onerous because of his health. The delay was unfortunate but those two circumstances, individually or together, could not properly be described as truly exceptional.

In short, the appeal was dismissed because the text message evidence of putting stun guns into circulation, taken with all the other circumstances holistically, meant that despite the appellant’s health problems and the prosecution delay, the circumstances were not truly exceptional so as to make the five-year minimum term arbitrary or disproportionate.

Dawson [2017] EWCA Crim 2244
Avis & Others [1998] 2 Cr App R (S) 178, [1998] 1 Cr App R 420
McCleary [2014] EWCA Crim 302
Shaw [2011] EWCA Crim 167
Stoker [2013] EWCA Crim 1431
Zakir, Rehman and Wood [2005] EWCA Crim 2056; [2006] 1 Cr App R 77

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