Man who broke into Army property fails to establish exceptional circumstances in firearms offence but has overall sentence length reduced

Sean Barclay appealed to the Appeal Court of the High Court of Justiciary on the grounds that the headline sentence for his theft charge was excessive, that the trial judge erred in deciding that there were no exceptional circumstances that would permit him to depart from minimum sentencing provisions in relation to the statutory offence, and that the cumulative effect of both sentences resulted in an overall excessive sentence. The appellant had previously pled guilty to both charges.

The appeal was heard by Lord Brodie and Lord Turnbull.

‘Cadet training at the building’

The court heard that the appellant had attended the building that was broken into for cadet training when he was 13 or 14 years old and been in the Territorial Army for nearly a year when aged 16-17, and was taught gun handling as part of his training. He was able to gain access to the building by breaking a back door window and forcing the doors open before stealing five drill purpose rifles used to practice weapons handling, along with ammunition, bags, and money. These, aside from the money, were concealed in a wooded area and later discovered.

It was submitted that the sentence relating to this charge was excessive in light of the appellant’s previous record of offending, which was lengthy but mostly made up of non-analogous offences. The appellant was a drug addict and planned to sell on the stolen items, thus making this theft part of a broader pattern relating to that.

Relating to the second charge, the rifles were modified from SA80 assault rifles to prevent them from firing bulleted cartridges. However, certain parts of the rifles, including the bolt carriers and receivers, were components that could be used in an original SA80 rifle.

As such, the appellant was also charged under section 5(1)(a) of the Firearms Act 1968 with possession of relevant component parts in relation to a prohibited weapon, in case an automatic weapon.

The charge under the Firearms Act had a minimum sentencing requirement of 5 years’ imprisonment for offenders aged 21 or over unless there were exceptional circumstances that justified not doing so. In his original trial, reliance was placed on the fact that because the drill purpose rifles were not capable of firing live rounds in their current state and the parts relating to the offence would need to be removed to be of any value.

Furthermore, the appellant described the rifles as “training props” to the police at interview, not appreciating that they would be regarded as firearms. It was argued on appeal that this constituted exceptional circumstances that would merit departing from the minimum sentencing requirements. The fact that the rifles were incapable of firing live ammunition and that this was known to the appellant failed to be described as a single striking feature that could be exceptional by the sentencing judge when he was balancing the aggravating and mitigating circumstances in the case.

It was also submitted that the minimum sentencing provision of the Firearms Act had a deterrent purpose that would have no effect if the offender did not know that what they possessed could be counted as a firearm, which the appellant did not, thus making the imposition of the minimum sentence arbitrary.

Finally, it was submitted that both charges could be seen to be part of the same course of conduct rather than distinct offences, so it was submitted that a lesser overall sentence would have been appropriate as per the totality principle.

‘Well planned’

Delivering the opinion of the court, Lord Turnbull said, in respect of the first ground of appeal, that the theft “was plainly a serious one of its type. [The appellant] broke into secure premises utilising the knowledge which he had obtained from his previous cadet and Territorial Army experience. The circumstances lead to the inference that he did so in the knowledge that he would be able to access drill purpose rifles which would have the appearance of genuine assault rifles and which he would then be able to sell.”

There was a clear market for the imitation guns in the criminal fraternity, and the crime “was well planned and considerable efforts were gone to in the aftermath to conceal the stolen items.” Thus, the sentence imposed for the first charge was not viewed to be excessive individually.

In relation to the second appeal ground, it was accepted that the fact that the dummy rifles were not truly firearms was technically correct. However, the opinion went on to say that “Parliament has determined that the definition of firearm as used in the Firearms Act means a number of different things. One of these is a relevant component part in relation to a prohibited weapon.”

It was also said that the appellant’s previous training and statement that he did not recognise the dummy rifles are firearms “sits uneasily alongside the fact that he broke into military premises and stole modified automatic assault rifles with the intention of selling them onto others.” Any lack of appreciation on the appellant’s part for the nature of the weapons was “very far indeed from the sort of lack of knowledge which would defeat the effect of a deterrent sentence.”

In relation to the third appeal ground, the Court was “satisfied that there is some force in the submissions which were presented in support of this ground of appeal and we shall give effect to it.” Accordingly, the headline sentence was quashed and replaced with a sentence of 32 months imprisonment, restricted by a quarter to 24 months. This was to run consecutively with the 5 year sentence imposed in respect of the Firearms Act charge.