Sean Anthony Edwards & Others [2019] EWCA Crim 926
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In Sean Anthony Edwards & Ors [2019] EWCA Crim 926 the Court of Appeal dismissed appeals against sentence save for the substitution of lawful concurrent terms for an offence attracting a statutory maximum below the sentence originally imposed.
Mr Edwards was sentenced to fourteen years and three months’ imprisonment concurrent on both counts. Mr Frith received nineteen years’ imprisonment. Mr Cullen received twenty-one years and eight months’ imprisonment. Mr McCarthy received twenty years’ imprisonment. Edwards, Frith and Cullen had pleaded guilty to conspiracy to supply prohibited firearms and conspiracy to sell ammunition without being registered under the Firearms Act 1968 on the eleventh or twelfth day of trial on 29 June 2018 before His Honour Judge Henderson at Birmingham Crown Court. McCarthy was convicted by the jury some days later on 23 March 2018.
On 12 March 2017 McCarthy ordered eight blank firing pistols from a supplier in Calais. The pistols were delivered to his home address in Birmingham in two batches on 16 March and 24 April 2017, for which he signed. Between delivery and 23 June 2017 the guns were modified from blank firing pistols into lethal weapons, though who carried out the modification remained unclear. On 23 June 2017 police stopped a vehicle driven by Frith with Cullen and Edwards as passengers. McCarthy was in a separate vehicle nearby. In the boot of Frith’s vehicle police found two guns from the second batch and twenty-five bullets in a bag bearing Frith’s fingerprints. A receipt for the guns, partly in French and partly in English, was later found in Frith’s caravan. The receipt made no mention of ammunition, so the ammunition must have been sourced elsewhere. Serial numbers ground out of the guns were recovered forensically and matched numbers on the Frith receipt. A police expert successfully test-fired the recovered guns. Mobile phone evidence established links among the appellants. All denied the offences in interview.
The Crown’s case was that Cullen organised the sale of the two guns with McCarthy, who had purchased them from France. Frith assisted in transportation and had been a former custodian, given that firearms and paperwork were found at his premises. Edwards was a middleman closer to the purchasers, acting on instructions or advice. At sentence, Edwards was aged thirty-six with sixteen convictions for forty offences spanning February 1999 to August 2012. Frith was aged forty-four with thirteen convictions for twenty-three offences, including four firearm, shotgun or offensive weapon offences, spanning January 1991 to October 2013. Cullen was aged forty-six with three convictions for eighteen offences from October 2013 to August 2017. McCarthy was aged forty-four with three convictions for four offences, including one firearm or offensive weapon conviction, from December 1990 to November 1996.
The judge observed that the gravity of gun crime could not be exaggerated and that the three core participants were closely connected over a substantial period of more than three months. He accepted that some contact would have been legitimate business contact but was sure that Cullen was the leader directing others, with McCarthy and Frith acting as lieutenants and Edwards a vital link man with customers. The judge was satisfied that Edwards was involved only in relation to the two guns seized, but that the others were engaged in a conspiracy involving all eight adapted firearms including the two seized guns and the six from the earlier batch. The judge noted the twenty-five year starting point in R v Stephenson [2016] EWCA Crim 54 and afforded five per cent credit to Cullen, Frith and Edwards for their belated guilty pleas.
Before the single judge all the appellants except Edwards contended that the judge ought not to have sentenced on the basis that they had been concerned in the supply of eight rather than two adapted firearms, arguing that there was insufficient evidence to justify passing sentence on that basis. Frith renewed his application for leave on that ground, though counsel explained he was not in a position to advance submissions because he had been unable to take instructions before the hearing. The Court of Appeal rejected the ground, agreeing with the single judge that the sentencing judge was entitled to sentence on the basis that both consignments were part of the conspiracy. The fact that the judge had directed the jury in McCarthy’s case that there was no evidence as to what happened to the other guns was nothing to the point. There was no direct evidence, but the issue was whether the sentencing judge could properly draw the inference that he did. It was not necessary for the jury to make a finding about the six guns when determining guilt or innocence, but it was necessary to do so on sentence. By the time Edwards, Frith and Cullen changed their pleas the judge had heard prosecution evidence, Cullen had given evidence denying the offences, Frith gave evidence at a Newton hearing, and McCarthy had given evidence in the days leading up to his conviction. The judge was therefore in a good position to form his own view. The Court refused Frith’s renewed application on that ground.
Turning to the single ground on which the single judge had given leave, namely whether the sentencing levels were somewhat too high, the Court was unpersuaded that the judge had adopted too high a starting point in the cases of Cullen, Frith or McCarthy by reference to Stephenson. The Court acknowledged that Stephenson involved an automatic sub-machine pistol, a longer duration of conspiracy of ten months as opposed to three months, a somewhat more substantial amount of ammunition of four hundred and ninety-two rounds as opposed to twenty-five, and may also have involved a more sophisticated operation. However, the Court considered that the judge implicitly recognised these differences by taking lower starting points or sentences prior to credit for guilty plea, namely twenty-three years for Cullen and twenty years for Frith and McCarthy. The sentences were severe and may have been at the top of the range, but they were not excessive still less manifestly excessive.
As for Edwards, whose sentence reflected his lesser involvement, the Court saw no basis for the submission that his sentence was too long. Nor could it agree with the submission that he should have received ten per cent credit rather than the five per cent credit given by the judge for his guilty plea entered on the eleventh day of trial. The single judge had rightly noted that the level of credit was within the range available to the judge.
The Court rejected a suggestion, not pursued orally, that the judge failed to take into account matters of mitigation in relation to McCarthy, namely that he had worked since a young age and provided financially for his family. No reference was made to these matters by the judge in his sentencing remarks, but the Court was clear that the sentence was not excessive as a result. The mitigation advanced did not represent substantial mitigation in context. The Court observed that the judge understandably chose to sentence without pre-sentence reports since substantial terms of imprisonment were inevitable in such a case.
The Registrar had pointed out that the maximum sentence for selling ammunition without being registered under the 1968 Act is five years’ imprisonment. The concurrent sentences passed in respect of count two could not stand. The Court substituted for those sentences terms of three years’ imprisonment in the case of each of the appellants. This had no effect on the overall sentence in each case since the sentences in respect of count two remained concurrent.
In short, the appeals were allowed only to the extent of substituting lawful concurrent sentences on count two for the unlawful concurrent sentences originally imposed, with no effect on the overall terms of imprisonment.