Neutral Citation Number: [2010] EWCA Crim 3052
Case No. 2010/05339/A6
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Thursday 9 December 2010

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  GRIFFITH  WILLIAMS

and

MRS  JUSTICE  SHARP  DBE
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ATTORNEY GENERAL'S REFERENCE No. 63 of 2010
UNDER  SECTION  36  OF
THE  CRIMINAL  JUSTICE  ACT  1988
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R E G I N A

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ZEKEL  WATSON
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Miss S Whitehouse appeared on behalf of the Attorney General
Mr S Redmond appeared on behalf of the Offender
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J U D G M E N T

THE LORD CHIEF JUSTICE:

1.  This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which he considers to be unduly lenient.  We grant leave.

2.  The offender is Zekel Watson.  He is 22 years of age.  He has no convictions since the age of 13 (which we treat as irrelevant for present purposes).  On 3 December 2009, in the Crown Court at Birmingham, before His Honour Judge Creed, he pleaded guilty to possessing a prohibited firearm.  He was jointly charged with two co-defendants.  We say nothing about the allegations against them.  They are facing trial on a number of different matters.

3.  The offender was charged on an indictment containing two counts.  The first, to which he pleaded guilty, charged possessing a prohibited firearm.  The second, of which he was subsequently acquitted by a jury, charged possessing a firearm with intent to cause fear of violence.
  
4.  In summary, on 8 September 2009 the police stopped a car being driven by the offender.  The two co-defendants were passengers in the car.  In the boot of the car, tucked away, the police found a sawn-off shotgun which was loaded with a 12 bore cartridge.  The boot also contained, among other things, a knife, a pair of rubber gloves and a further live shotgun cartridge.  

5.  Taking it in more detail, the three co-defendants met up in Perry Bar, a suburb of Birmingham.  The offender and one of the other two arrived at the meeting point first in a black BMW Mini, which the offender was driving.  The third defendant arrived in his own car.  He left his car and joined the offender and the co-defendant in the black BMW car.  The trial proceeded on the basis that the Crown alleged that one of the co-defendants was seen to put something into the boot of the offender's car before he joined the other two inside it.  The Crown's case was that it was the sawn-off shotgun with which we are concerned that was put into the boot.  That evidence was challenged at the trial.  The offender gave evidence that he had received the gun two days earlier.  Following the jury's verdict, it was decided that he should be sentenced on the basis of his own account of these matters.  We must underline that, even if that was so, we are far from certain that this reduced his culpability.  

6.  The three co-defendants set off on a journey from Perry Bar towards Hertfordshire.  After they had driven for almost two hours, the police stopped the car.  They found the shotgun wrapped in plastic bags hidden in the spare wheel compartment in the boot.  It was a shortened, single-barrelled shotgun.  Its serial number had been erased.  The offender's fingerprint was on the outside of one of the plastic bags.  Police also found a satellite navigation system in the car with a destination post code apparently entered into it.  The post code was very close to the place where the offenders had been stopped.  A piece of paper containing a name, address, telephone number and the same post code was found on one of the co-defendants.  It is plain that the offenders were delivering a lethal, loaded weapon to somebody.

7.  When he was interviewed the offender said that the BMW he had been driving was his mother's car.  It was driven by her and sometimes his younger sister was a passenger.  He had arranged to meet up with the co-defendants that day.  During the drive he had noticed the satellite navigation system.  He had not inserted the destination post code into it.  He had started to follow the directions, but had not asked the other two why they should be driving in that direction or as to the place they intended to go.  He denied knowing that there was a firearm in the boot of the car.

8.  The co-defendants similarly said that they had no knowledge of the firearm, or the destination, or the purpose of the drive.  On one view, nobody in the car knew anything about the gun.

9.  At his trial the offender gave evidence.  He said that two days before the car was stopped he had been approached by an associate.  He knew him by the street name "Inferno", but his first name was Leon.  He had asked the offender to keep a gun for him.  Although he had wanted to refuse, Leon was very persistent.  This was the first mention of Leon that the offender had made.  No further information was given.  We understand that the information has not been sufficient for the police to be able to investigate further.  

10.  The judge considered a pre-sentence report.  The offender is a bright young man.  He lives with his mother and younger sister.  He is studying at a university, where he had completed the first year of a degree course.  According to the author of the pre-sentence repot, on his release from his anticipated sentence the offender's intention was to return to university.

11.  The judge decided that there were exceptional circumstances which justified him in imposing a lower sentence than the prescribed sentence for this offence.  In due course he sentenced the offender to a total of three and a half years' imprisonment.  In reaching his conclusion that that was appropriate, he took account of his view that the offender had been unwilling to take possession of the weapon, that he had given a full explanation of how this had all come about, and had identified the person who had given the weapon to him.  The judge took account of the fact that the weapon was in the family car which, in the context of cases like this, he held was an exceptional circumstance.

12.  We find nothing exceptional about the offender's apparent unwillingness to possess the gun.  The judge was entitled to make the finding of unwillingness, but it is often the case that young men and women of apparently good character are persuaded, cajoled, encouraged and sometimes pressurised into carrying, or holding, or looking after these lethal weapons.  They are chosen for that purpose because it is unlikely that the police will have any interest in them, and so those who own the weapons can keep them safe and secure.  The offender knew what he was doing.  We find nothing in his evidence to suggest that he was under duress.  Nor do we find anything in the evidence to suggest that he provided information on the kind of scale which would have enabled the police to hunt down and identify the men who had provided the weapon.  We are also deeply concerned that the fact that the car in which the gun was found was used by the offender's mother and sister was treated as a mitigating factor.  On one view it is an aggravating feature, if for no other reason than it might have implicated his mother and sister.

13.  The aggravating features of this case need no recitation.  The offender was convicted of possession of a loaded, sawn-off shotgun which was on its way to be delivered to someone.  The fact that that individual may not for present purposes be identified does not diminish the seriousness of the fact that the gun was to be handed over in a condition where it was capable of being used immediately and certainly capable of being used in the course of gun crime.  

14.  This offence cried out for the imposition of at least the minimum prescribed statutory sentence.  We do not think that the offender could have had any complaint if the sentence had been longer than it was.  We have reflected on the situation as it stands before us now, having been before the Crown Court and having been dealt with as it was.  We shall quash the sentence imposed by the judge and substitute for it a sentence of five years' imprisonment.

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