Firearms offender fails in appeal against ‘arbitrary and disproportionate’ five-year minimum sentence

The Appeal Court of the High Court of Justiciary upheld the decision of the sheriff after rejecting the appellant’s claim that there were “exceptional circumstances” to justify a departure from the imposition of the statutory minimum sentence.

Minimum sentence

Lady Paton and Lord Turnbull heard that the appellant Allan Turnbull, 30, appeared at a trial diet at Dundee Sheriff Court in May 2017, when he tendered a plea of guilty to charge 4 on the indictment, namely, being in possession of a stun gun disguised as a torch, contrary to section 51A of the Firearms Act 1968, which requires the court to impose a minimum sentence of five years’ imprisonment “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”.

A plea of guilty to charge 5 on the indictment, which concerned the production of three cannabis plants, had been tendered and accepted at a first diet.

The sheriff’s report to the appeal court stated that the stun gun, which was recovered by police from a rucksack in the accused’s bedroom in his mother’s house, was purchased online around two years earlier by the accused for about £12.

It had been bought partly out of curiosity and on receipt the accused tested it on himself, giving himself an electric shock, following which he put in the rucksack where it remained until being seized by the police.

The sheriff was also told that the accused’s mother had long-term health problems and relied on him for assistance.

‘Arbitrary and disproportionate’

It was submitted that the circumstances of the accused’s possession of a stun gun were not eloquent of the presentation of danger to the public, there being no suggestion that the appellant intended to make any use of the item in the context of other criminal activity.

The sheriff was therefore asked to conclude that the imposition of the statutory minimum sentence would be “arbitrary and disproportionate”.

However, having also considered the terms of the Criminal Justice Social Work Report, the accused’s limited record of previous convictions with no analogous offences, the low to medium risk of re-offending, and his personal circumstances, the sheriff concluded that the case did not fall outside the norm and that exceptional circumstances justifying departure from the minimum sentence were not made out.

He accordingly imposed a sentence of five years’ imprisonment on charge 4 and a concurrent sentence of five months’ imprisonment on charge 5.

But the appellant was granted leave to appeal on a ground which argued that the sheriff erred in concluding that exceptional circumstances were not present such as would permit him to depart from the minimum sentence.

On behalf of the appellant, Simon Gilbride emphasised that there was “no suggestion” that the item had ever been used by the appellant, or taken by him into a public place.

He submitted that in the absence of any aggravating features of this sort it could be seen that the policy and intention of parliament, to protect the public by requiring a minimum sentence of imprisonment, was “not engaged”.

It would therefore be “arbitrary and disproportionate” to impose a sentence of the length selected by the sheriff.

No exceptional circumstances

Refusing the appeal, the judges considered that the submissions made on the appellant’s behalf “failed to give adequate weight to the restricted circumstances in which a sentencer would be entitled to depart from parliament’s declared intention”.

Delivering the opinion of the court, Lord Turnbull said: “The absence of aggravations would not constitute exceptionality. It is not the presence of mitigating circumstances which matters, but the presence of mitigating circumstances such as can permit the sentencer to conclude that there are exceptional circumstances relating to the offence or the offender.

“In the present case the appellant was found to be in possession of a disguised stun gun which was charged and was operational. Contrary to the submission presented on his behalf, it had been used, albeit on himself. He was therefore well aware of its function and effect.”

The appellant had also told the author of the social work report that he had moved house on a number of occasions throughout the time that the stun gun had been in his rucksack, which appeared to indicate that the item had been in a public place on a number of occasions, meaning there was a risk of the stun gun falling into the hands of another.

Lord Turnbull added: “In our opinion, the circumstances of the present case were serious and fell within the type of offending behaviour which parliament intended to prevent. It does not seem to us that the case falls outside the range of cases which parliament can be taken to have had in mind as the norm, and we do not agree that the imposition of the statutory minimum sentence can be said to be arbitrary and disproportionate in the appellant’s case.

“We are satisfied that the sheriff was correct to conclude that nothing which was placed before him took the appellant’s case into the exceptional category which would entitle him to impose a sentence of less than five years’ imprisonment. The appeal is therefore refused.”