Father-of-four loses appeal against five-year sentence for firearms offences

The Criminal Appeal Court ruled that Henry Morton failed to show “exceptional circumstances” that would justify departing from the statutory minimum five-year prison sentence for the firearms offences.

Lord Brodie and Lord Turnbull heard that Morton, 37, had returned from holiday in Bulgaria to Glasgow Airport in September 2014 when he was found to have two stun guns disguised as mobile telephones within his luggage.

The court was told that the guns had been on open sale in a supermarket in Bulgaria and the appellant had known what he was purchasing.

He posted a film on Facebook of himself holding one of the stun guns and demonstrating it operating, saying: “You f*ck with me you get tasered son … and that’s the truth!”

He also posted a message to say that he was in Bulgaria and was going to bring back stun guns into the UK and try to sell them for £300 each.

When detained at Glasgow Airport he denied knowing that the items were stun guns, claiming to officers that he thought they were genuine iPhones.

But he pled guilty at the High Court in Edinburgh in June 2016 to two charges under the Firearms Act 1968.

The first was a contravention of section 5(1A)(a), relating to possession of a firearm disguised as another object, and the second was a contravention of section 1(1)(a) of the Act, possession of firearms without being the holder of a certificate.

Section 51A of the 1968 Act requires the court to impose a minimum sentence of five years’ imprisonment for a contravention of section 5(1A)(a) “unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it in not doing so”.

In his evidence during the proof in mitigation the appellant said that he had been drinking a lot of the time while on holiday, that he was drunk when he posted the Facebook video and “couldn’t remember” much about it.

He gave evidence that he had “no intention” of using the stun guns to cause harm and that he thought it would be all right to bring them back to this country because they were on open sale in Bulgaria.

He claimed did not intend to sell them on and that it was only when he saw a sign at Glasgow Airport saying that such items were illegal that he realised they could not be brought into this country, which was why he lied to the police about what he thought the items were during his interview.

The court was also told that he was a separated father-of-four who was actively involved in the care of his children, aged 16, 15, 12 and 10, who stayed with him each weekend, and that two of them attended special schools.

Having heard a proof in mitigation at which the appellant, his former partner, two psychologists and a forensic firearms examiner all gave evidence, the presiding judge was not satisfied that there were exceptional circumstances and imposed the minimum sentence of five years’ imprisonment, with a concurrent sentence of 21 months’ imprisonment on the remaining charge.

The appellant was granted leave to appeal against sentence on the ground that the judge had erred in determining that there were no exceptional circumstances such as would permit him to impose a sentence of less than the minimum term.

It was submitted that the trial judge had made “a number of errors” in the application of the guidance to be drawn from the case law and in the weight which he had attached to aspects of the appellant’s circumstances.

He gave “insufficient weight” to the appellant’s low risk assessment, to his personal circumstances, in particular the content of the psychological reports, and to the fact that he provided care to his children with special needs, it was argued.

However, the appeal judges ruled that the sentencing judge did not err in his approach to the issues, and that he was “correct in his conclusions and reasoning”.

Delivering the opinion of the court, Lord Turnbull said: “In enacting section 51A of the Firearms Act, and in classifying disguised stun guns as firearms, Parliament intended to protect the public against the obvious dangers arising from unlawful possession of such items. Parliament did this by providing a mandatory sentencing regime which gives greater emphasis to considerations of retribution and deterrence (both general and individual) than the personal circumstances of the individual offender.

“In our opinion, the circumstances of the offence in the present case are serious and plainly fell within the type of offending behaviour which Parliament intended to prevent. The appellant brought into an airport in Scotland two separate disguised stun guns which he had deliberately purchased with a view to importing them by plane into Scotland.

“The weapons were to the knowledge of the appellant in working order and had with them the means of causing harm. His intention was to sell the weapons on and thus to put them out of his own control. In our opinion this was the deliberate type of offending with the potential to cause serious public harm which Parliament intended to prevent by the sentencing regime selected.”