Neutral Citation Number: [2008] EWCA Crim 1530
Case No. 2008/02363/A1

IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Monday  23  June  2008

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)

MRS  JUSTICE  DOBBS

and

MR  JUSTICE  UNDERHILL
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ATTORNEY GENERAL'S REFERENCE Nos. 23 of 2008

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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BRUCE  ANTHONY  LEE

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Miss Z Johnson appeared on behalf of the Attorney General

Mr M Goldwater appeared on behalf of the Offender
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J U D G M E N T

THE LORD CHIEF JUSTICE:
1.  On 8 April 2008, in the Crown Court at Manchester, before the Recorder of Manchester (His Honour Judge Gilbart QC), at a plea and case management hearing, the offender, Bruce Lee, pleaded guilty to possession of a prohibited weapon contrary to section 5(1)(aba) of the Firearms Act 1968 (count 1) and possession of a firearm with intent to endanger life contrary to section 16 of the Firearms Act 1968 (count 2).  On the same day he was sentenced to five years' imprisonment on each count, to be served concurrently, and he was recommended for deportation.  
 
2.  The Attorney General applies under section 36 of the Criminal Justice Act 1988 for leave to refer that sentence to this court for the view on the ground that it was unduly lenient.  We grant leave.   
Background 
3.  The facts of this case are unusual.  On 22 December 2007, Police Constable Dunnington, a police officer on patrol in Longsight, Manchester, approached a VW Golf motor car which was being loaded with items from a nearby house.  He noticed the smell of cannabis coming from the car.  The offender, who was on a bicycle, approached the car and PC Dunnington asked him to stop.  The offender did not stop but rode off on the bicycle.  PC Dunnington gave chase on foot.  The offender dismounted and ran into a housing estate.  The police officer followed.  As PC Dunnington rounded a corner in pursuit, the offender fired a single shot from a revolver towards him at a distance of ten to fifteen metres.  It did not hit him.  The offender managed to run away from PC Dunnington but was eventually found by other officers in the housing estate.  He ran off again, throwing his revolver over his shoulder and discarding the bullet‑proof vest that he was wearing.  He was arrested without resistance.
 
4.  Subsequent examination of the path and position of the bullet established that the gun did not appear to have been fired directly at PC Dunnington.  
 
5.  In interview the offender said that he had found the loaded revolver by chance in a bag in a bush the previous evening.  He took it intending to sell it to pay for his return flight home to the United States, but also considered using it to commit armed robbery.  He had only intended to frighten PC Dunnington.  He had come to the United Kingdom to attend his cousin's funeral, his cousin having been shot dead by a rival gang, and he was wearing the bullet‑proof vest for his own protection.  
 
6.  The offender, who is aged 22 and a United States citizen, had no previous convictions in the United Kingdom or the United States.  The judge found that he was not a dangerous offender for the purposes of section 225 of the Criminal Justice Act 2003.  

7.  Following the prosecution opening setting out the facts that we have recited, submissions in mitigation were made to the judge.  The mitigating factors urged were that the offender had pleaded guilty at the first opportunity on the basis that he did not intend to kill or injure anyone and had aimed wide.  He accepted that firing the gun in a public place created a risk of injury to others.  He had no previous convictions and had led a sober and industrious life in America before becoming connected with gang culture in Manchester as a result of attending the funeral of his cousin.  His remarks in interview about using the gun to commit robbery displayed his naivety and he would not, in fact, ever have so used it.  
 
8.  In sentencing, the Recorder said that he bore in mind the guideline case of R v Avis [1998] 1 Cr App R 420.  He did not think that this was a case which required an indeterminate sentence as he had found the offender's intention had been to threaten rather than to use the gun.  He had to treat the matter very seriously and did so by imposing concurrent terms of five years' imprisonment following the guilty plea.  That was on the basis that, without the guilty plea, the second count would have merited a sentence of seven and a half years' imprisonment.  He also held that the criteria for an order for deportation was met in this case.  
 
9.  On behalf of the Attorney General Miss Johnson submits that this sentence was unduly lenient because the elements of count 2 were not properly recognised.  The facts of that count were that a weapon had been fired in the direction of a police officer and this called for a deterrent sentence.  Possession of a firearm simpliciter carries a minimum sentence of five years.  This firearm was fully loaded and was used in a public place.  Miss Johnson submitted that the starting point in this case should have been in double figures.  

10.  In Avis this court gave guidance as to the questions that the sentencing court should ask itself in case such as this:  

	(1)  What sort of weapon was involved?  Genuine firearms are more dangerous then imitation firearms, and loaded firearms are more dangerous than unloaded.  

Here the firearm was loaded and indeed used.  
 
	(2)  What use had been made of the firearm?  The court had to have regard to all the circumstances surrounding any use made of it; the more prolonged and premeditated and violent the use, the more serious the offence.
 
	(3)  With what intention did the defendant possess or use the firearm?  Generally speaking, the most serious offences under the Act require proof of a specific criminal intent to endanger life, to cause fear of violence, to resist arrest or to commit an indictable offence.  The more serious the act intended, the more serious the offence.  
 
	(4)  What is the defendant's record?  The seriousness of any firearm offence is inevitably increased if the offender has an established record of committing firearms offences or crimes of violence.  
 
Only the fourth question, submitted Miss Johnson, was one whose answer weighed in favour of a lenient sentence on the facts of this case.
 
11.  Mr Goldwater for the offender accepted that the appropriate starting point for possession of a firearm with intent "without aggravating features" was seven to eight years.  Such a starting point appears from a number of decisions of this court.  They are summarised in R v Coudjoe and Others [2003] EWCA Crim 636, where Kennedy LJ, having reviewed the authorities, stated at paragraph 48 that they demonstrated that in a contested case simple possession of a firearm together with ammunition with intent to endanger life merited a sentence of between seven and eight years.  Mr Goldwater accepted that the fact that the firearm had been discharged in this case was an aggravating factor which could properly have raised the starting point for the sentence to one of ten years.  However, he emphasised the fact that the discharge had been, as the Recorder accepted, simply to frighten and with no intent to injure.  The plea to possessing a firearm with intent to endanger life was not made on the basis that the offender wished to use the firearm for that purpose, but that he accepted that the purpose for which he had on the spur of the moment used it had involved risk to life and therefore it was appropriate that he should plead guilty to possessing the firearm with that intent.  

12.  By way of mitigation, Mr Goldwater emphasised the offender's good character; the fact that he pleaded guilty at the first opportunity; the lack of any intent to kill or injure; the fact that, although the firearm was fully loaded, the offender did not fire a second shot but when approached by the police officers he discarded the firearm and was arrested without resistance; and the fact that he then gave a very full and frank account of his behaviour in interview rather than hiding behind "no comment" replies.  Mr Goldwater also urged personal mitigation, in particular the fact that the offender had not merely no criminal record, but a good record.  He lived in New York, he worked for his living and fortuitously he was sucked into the gang culture as a result of coming to this country for a funeral and missing his flight home.  In short, this offence was wholly out of character.

13.  Mr Goldwater's submission is that the starting point of ten years would have been reduced simply by the plea of guilty to six and two-thirds years, but that the personal mitigation would have resulted in a further reduction to a sentence in the region of six years, and that it could not be said that a sentence of five years rather than six was unduly lenient.

14.  We have not found this an easy case.  On the face of it, the basis of the plea of guilty by a man with a loaded firearm, wearing a bullet-proof vest, is a somewhat surprising scenario.  However, it was accepted by the prosecution and by the Recorder and we must proceed on that basis.

15.  On that basis it seems to us that the most significant feature is that this is not a case of an offender possessing a firearm with the intention of using it to shoot at other people.  That is the usual intent which is involved in this offence (albeit that the intent is often said to be merely to do so by way of self-defence).  Here the intent to which the offender pleaded was but a momentary use of the firearm with an intent to frighten.  The other aspects of mitigation are validly advanced, but are less significant.

16.  In all these circumstances we think that Mr Goldwater's appraisal of the position is an accurate one.  This was undoubtedly a lenient sentence, but it does not reach the state of leniency that amounts to an unduly lenient sentence calling for the intervention of this court.

17.  For these reasons we shall not disturb the sentence imposed.

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