Peter Bexley [2019] EWCA Crim 1018

In R v Peter Bexley [2019] EWCA Crim 1018 the Court of Appeal dismissed an appeal against a sentence of two years’ imprisonment for a firearms offence, notwithstanding the sentencing judge’s failure to state expressly that credit had been given for a guilty plea.

On 1 May 2018 in the Crown Court at Canterbury Mr Bexley, then aged 28, pleaded guilty to possessing a prohibited firearm contrary to section 5(1)(aba) of the Firearms Act 1968, possessing ammunition without a firearms certificate contrary to section 1(1)(b) of the 1968 Act, and failing to surrender to bail. On 19 November 2018 he was sentenced to two years’ imprisonment on the first count, with concurrent sentences of 12 months for the ammunition offence and 14 days for the Bail Act offence. The possession of a prohibited firearm attracted a minimum term of five years’ imprisonment under the 1968 Act unless the court found exceptional circumstances relating to the offence or offender which justified a lower term.

On the morning of 24 March 2018 Mr Bexley walked into Dover police station and told staff he wished to hand in a firearm. He explained he had been assaulted and that the gun had been held to his head. He produced a silver barrelled 9 millimetre Makarov pistol from inside his jacket, behaving calmly and complying with instructions to put it down and step away. When the Firearms Unit attended he provided his name and address and handed over a bag containing three rounds of ammunition. He was found to be wearing a gun holster which he said he had previously used to carry a BB gun, and he had three Polaroid photographs of the pistol, one showing him holding it. He told police in interview that he had been at a friend’s house in London on 20 March when the friend produced the firearm from under a mattress. Mr Bexley wrestled it from him and removed the magazine. The friend’s mother told him to dispose of it. He took the gun home and refused to return it because he feared it might be used in gang violence. By 22 March he had travelled to Dover to seek advice from his parents. They initially kept the firearm, but the friend demanded its return. Mr Bexley returned to London with it before deciding to go back to Dover and hand it in. Forensic examination showed the firing pin had been removed, rendering the gun inoperable, though it could have been reactivated by a suitably skilled person with additional components. There was no evidence Mr Bexley had ever used it.

At his first appearance on 24 April 2018 Mr Bexley was not arraigned because the prosecution required a firearms expert’s report, but an indication was given that a guilty plea would follow if the weapon’s prohibited status was confirmed. The judge noted a background of mental health issues and advised the defence to obtain medical evidence if they intended to argue that exceptional circumstances justified a lower sentence. At the next hearing Mr Bexley pleaded guilty on a written basis of plea which stated he attended the police station intending to hand in the firearm and ammunition, that he had come into possession of them four days earlier by taking them from a friend, and that his mental health problems were relevant to the delay in handing them in and to his erratic behaviour during those four days. The judge accepted that Mr Bexley had hesitated to go to the police immediately because he and his family had been subjected to threats and intimidation by the owner of the firearm. Mr Bexley failed to attend court on 28 July 2018 and a warrant was issued. He was arrested on 12 September and remanded in custody, spending 62 days on remand. On 16 October 2018, while on remand, he received six months’ imprisonment in the magistrates’ court for three offences of possessing an offensive weapon in public, two iron bars and a knife, committed on 27 August 2018 while unlawfully at large.

The judge had the benefit of a defence skeleton argument which relied on the Avis guidelines and submitted there were exceptional circumstances relating to both offence and offender. Counsel pointed to the fact that Mr Bexley had voluntarily gone to the police to hand over the firearm to prevent its use in crime and that forensic evidence showed the firing pin was missing and supported his account that he had never used it. As to personal mitigation, counsel relied on the absence of previous firearms convictions and Mr Bexley’s mental health difficulties. He had suffered a serious brain injury in a roller skating accident in 2010 which caused damage to his left temple lobe and resulted in enduring personality change marked by impulsivity, thoughtless actions, severe anxiety, fears of rejection and paranoid thoughts. According to a psychiatric report it also left him with a low threshold for manifesting short-lived psychotic symptoms following drug abuse. The psychiatrist did not recommend any mental health disposal and explained his reasoning in his report.

In his sentencing remarks the judge identified mitigating features but balanced them against what he described as concerning aspects. He noted that the appellant had refused to engage constructively with treatment and said concerns remained about his future behaviour. Although Mr Bexley had handed in the weapon only four days after obtaining it, he had not disclosed the identity of the person from whom he had taken it. The judge said any involvement with potentially deadly firearms and those who carry them demanded censure. He referred to concerns regarding the appellant’s conduct and decision making, his past impulsive offending, and most pertinently the fact that while unlawfully at large during the proceedings he was arrested for possessing offensive weapons in a public place. The judge also referred to public concern about the prevalence of firearms. He described the case as presenting a very difficult dilemma given the psychiatrist’s conclusion that no treatment was available to address Mr Bexley’s complex issues. While his behaviour might stem at least in part from his brain injury, there remained a very real risk he would continue to pose a significant risk of further offending, particularly if he continued to abuse drugs. The judge found exceptional circumstances and imposed a sentence of two years’ imprisonment, well below the statutory minimum of five years.

The difficulty on appeal was that the judge had made no express reference in his sentencing remarks to giving credit for the guilty plea. He stated at one point that he took account of the plea of guilty and its basis in reaching the conclusion that there were exceptional circumstances, but in context that appeared to refer to the specific factual basis rather than to credit for the plea itself. Miss Bright, appearing for Mr Bexley on appeal, submitted that from the point of view of public confidence it was extremely important that when sentencing a defendant who had pleaded guilty a judge should state in open court that credit was being given and how much. Only then could the defendant be confident the judge had calculated the sentence correctly and have the proper information to consider whether there were arguable grounds of appeal. The single judge observed that the issue for the Court of Appeal was whether the sentence imposed was too long, bearing in mind that the plea had been entered at the earliest opportunity and would lead to full credit of one third of the sentence that would have been passed after trial.

The Court of Appeal held that in order to reach a sentence of two years’ imprisonment the judge must have had in mind, though he did not articulate it, a notional sentence after trial of three years. The alternative was that he intended a notional sentence of two years with a further reduction for the guilty plea which he mistakenly overlooked, but looking at the way the judge expressed himself and particularly his specific reference to the plea of guilty earlier in his remarks, it was difficult to conclude that was what he intended. The court agreed with the judge that notwithstanding the very short period Mr Bexley was in possession of the firearm an immediate custodial sentence was necessary, and Miss Bright did not contend otherwise. The question was whether the length of sentence was manifestly excessive. The court agreed with the single judge that the judge was unquestionably right to depart from the minimum sentence on the basis of plea accepted, but as to the length imposed the starting point must be that Parliament intended a minimum of five years to be served for possession of such items, even for a short time and even by defendants of previous good character, save in exceptional circumstances. This was intended as a matter of policy to deter people from possessing such items. Even though the gun was temporarily disarmed by removal of the firing pin it was a potentially lethal weapon. Even in cases of short-term possession of a disguised firearm such as a Taser masquerading as a mobile phone, sentences of three years after trial and two years after full credit for an early plea had been endorsed in cases such as R v Rodgers (Georgina) [2016] EWCA Crim 801, R v Paterson (Todd David) [2017] EWCA Crim 1950 and R v Hussain [2018] EWCA Crim 2662, and such items were not lethal weapons. Bearing in mind the public policy underlying the minimum sentence, a reduction from five years to three before full credit for the guilty plea, to take account of all the extenuating features which led to the finding of exceptional circumstances, could not conceivably be regarded as producing a manifestly excessive sentence.

The court endorsed Miss Bright’s submissions that it was important for public confidence that sentencing judges should spell out the credit given for a guilty plea, but in the particular circumstances of the case it was satisfied the overall sentence was not manifestly excessive. In short, despite the judge’s failure to state expressly that he had given credit for the guilty plea, the Court of Appeal concluded that the two-year sentence must have reflected a notional three-year term after trial and could not be described as manifestly excessive given the seriousness of possessing a lethal firearm even for a short time.

Rogers; Tapecrown; Beaman [2016] EWCA Crim 801, [2016] 2 Cr App R (S) 36
Paterson [2017] EWCA Crim 1950
Evans [2018] EWCA Crim 2662