Firearms Offences: An overview of the new sentencing guidelines.
There are new sentencing guidelines for firearms offences, which apply to all defendants sentenced from 1st January 2021 onwards, irrespective of the date of the offence. In essence, they effectively collate and distil the leading authorities on sentencing for these offences. As such, it is anticipated that pre-guidelines cases may still be of assistance in the practical application of the new guidelines.
One key development for these guidelines is that, for the first time in any Sentencing Council Guidelines, the disparity in outcomes as between white and non-white defendants is specifically highlighted and Courts must consider this during the sentencing exercise, with the aim of eliminating such disparities.
Categories of Offence
The guidelines cover eight categories of offence from the Firearms Act 1968:
- Possession, purchase, or acquisition of a prohibited weapon or ammunition (Sections 5(1) and 5(1A));
- Possession, purchase, or acquisition of a firearm/ammunition/shotgun without a certificate (Sections 1(1) and 2(1);
- Possession of a firearm or ammunition by a prohibited person (Sections 21(4) and 21(5);
- Carrying a firearm in a public place (Section 19);
- Possession of a firearm with intent to endanger life (Section 16);
- Possession of a firearm or imitation firearm with intent to cause fear of violence (Section 16A);
- Use of a firearm to resist arrest/possession of a firearm or imitation firearm while committing a Schedule 1 offence/carrying a firearm or imitation firearm with criminal intent (Sections 17(1), 17(2) and 18);
- Manufacture/see or transfer/possess for sale or transfer/purchase or acquire for sale or transfer prohibited weapon or ammunition (Section 5(2A).
The framework for each offence in the guidelines follows a similar seven stage structure. They follow a similar pattern to other guidelines.
- Culpability – Type of Weapon
i. Determine the type of weapon,
ii. Presence of Ammunition,
- Culpability – Other Factors
i. Use for criminal purpose,
ii. Whether it was loaded,
iii. Whether there was an intention to use.
N.B. Where there are different culpability levels as between these two culpability factors, the court must “balance these characteristics to reach fair assessment of the offender’s culpability".
- Harm - Usual three categories. Relevant factors include: Harm, injury, distress, risk of the above
Starting Point and Category Range
- Consider racial disparity
- Identify correct box on the table (harm/culpability)
Aggravating Factors e.g.:
- Modified to increase dangerousness
- Multiple weapons
- Abuse of position as registered firearms dealer
- Under the influence of drugs/alcohol
Mitigating Factors e.g.:
- Lack of knowledge/suspicion in strict liability offences
- Lack of knowledge that firearm/ammunition is prohibited
- Firearm incomplete or incapable of being discharged
- Held on behalf of another through coercion, exploitation or intimidation
- Voluntary surrender of firearm
STEP 3: Minimum Term and Exceptional Circumstances
Consider whether a minimum sentence applies and whether or not there are exceptional circumstances related to the offence or the offender which justify departing from the minimum. The minimum sentence applies irrespective of plea in cases where there are no exceptional circumstances. The position is different for youths as we will see.
STEP 4: Prosecution Assistance
Consider any facts which indicate a reduction for assistance to the prosecution
STEP 5: Reduction for Guilty Plea
N.B. Not reducing below any applicable minimum sentence in the absence of exceptional circumstances
STEP 6: Totality Principle
STEP 7: Ancillary Orders
Where the minimum term provisions under section 311 and Schedule 20 of the Sentencing Code apply,
a court must impose a sentence of at least 5 years, irrespective of plea unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so
- Minimum terms apply when sentencing an offence under the following sections of Firearms Act 1968: 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af), (c) or section 5(1A)(a) committed on or after 22 January 2004
- N.B. the minimum term provisions do not apply to offences charged as conspiracies
- It applies only if the defendant was aged 18 or over at the time of the commission of the offence
- Where the minimum term applies, it must be stated expressly in open court
Sentencing Offenders Aged Under 18 at the Date of the Offence
- Where the offender is aged 16 or 17 when the offence was committed, the minimum term is three years’ custody.
- Where the offender is under 16 when the offence was committed, the minimum term does not apply.
Sentencing Offenders Aged Under 18 at the Date of Conviction
The court should determine the sentence in accordance with the Sentencing Children and Young People guideline, particularly paragraphs 6.42- 6.49 on custodial sentences.
Previous leading case in this area was R v Rehman 1 Cr App R (s) 77 where the Lord Chief Justice provided guidance as to what might amount to exceptional circumstances and guidance as to the CA’s approach on an appeal from an adverse finding. That guidance is now repeated in the guidelines.
In considering whether there are exceptional circumstances that would justify not imposing the statutory minimum sentence, the court must have regard to:
- The particular circumstances of the offence; and
- The particular circumstances of the offender
either of which may give rise to exceptional circumstances.