We have written a few times about the sentence received by Sergeant Nightingale, both setting out the facts, and commenting on the potential question marks over the finding of exceptional circumstances. Nobody seriously thought that it would lead to a relaxation in the Court of Appeal on sentencing for firearms and a recent case confirms that.
On 24th January, the Court of Appeal was considering an Attorney-General’s Reference in the case of Robert Downes. During a raid on his house last August, police found six stun guns that were disguised as mobile phones. He was sentenced to 12 months imprisonment, that was suspended, in November. Consequently, he walked free from Court then.
The case was a ‘mandatory minimum’ one and the Court of Appeal imposed the minimum, so, as a result of the Court of Appeal allowing the Reference, Mr Downes now will have to go to prison for the next 2½ years.
Comment – We don’t have the transcript, so we may (depending on what is said) re-visit this when that is released.
I have said before that I am opposed to mandatory minimum sentencing. The lack of flexibility is wrong and the test of ‘exceptional circumstances’ too vague. We don’t know in this case what the Judge in the Crown Court that sentenced Mr Downes thought the exceptional circumstances were, but it is worth considering what cannot be considered to be exceptional. From the news reports it seems that Mr Downes had mental health issues and did not know that they were illegal. There does not appear to have been any suggestion that any of them had been used by him.
When an Attorney-General’s Reference is allowed, the Court will make a discount to the sentence that they impose because of the principle of ‘double jeopardy’. This recognises that criminal proceedings are stressful and that once someone is sentenced, they are entitled to conclude that that is the end of the matter. To therefore turn around a few months later and re-sentence the person is a further disruption in their life, and the sentence will be discounted to reflect that. This is all the more so (and the discount greater) where it involves taking someone who has received a non-custodial sentence and send them to prison.
In this case, presumably because there is the mandatory minimum, it seems that no discount was given to him.
As stated above, in the absence of the full transcript it is difficult to be too critical. It’s not just a case of a person with one taser, it’s serious – a man with six of them who was looking to sell them. On the other hand, these weren’t lethal firearms and there is nothing to suggest that they were ever used.
In those circumstances, can the Crown Court Judge have got it so wrong in determining the correct sentence? Is it right that no discount should have been made (if that is the case) from the five year sentence.