When are circumstances ‘exceptional’? Comment on R v Dowes

Introduction

In January we covered the case of Robert Downes who was originally sentenced to a suspended sentence for possession of ‘firearms’ in 2012. He was subject to an Attorney-General’s reference which lead to an increase in his sentence to 5 years.

We now have, courtesy of CrimeLine, the full transcript and, having said that we may look at it again if we did and, given that Sgt Nightingale is in the Court of Appeal tomorrow (13th March) for his conviction appeal, it seems as good a time as any to look as what can count as ‘exceptional circumstances’ for the purpose of the mandatory minimum legislation.

 

Principles of mandatory minimum sentencing

An overview is here. In essence, for certain firearms offences a minimum sentence of 5 years must be passed unless there are exceptional circumstances.

This applies to offences that involve a specific intent – ie, having a gun with intent to endanger life for example.

It also applies however to simple possession of these items. The full list of offences can be found here.

 

Fact of Mr Downes case

Again, the facts can be found in the previous post and the judgment. What we have by way of mitigation is:

  • Previous good character (effectively)
  • Positive good character – he was 61 years old, a family man who worked
  • Full admissions in interview and an early guilty plea
  • There was genuine remorse
  • When they were acquired, Mr Downes did not know that they were illegal (although he kept them after becoming aware of it)
  • A history of depression with a tendancy to self-harm (he had attempted suicide while in police custody)
  • Unusually in this case the nature of the items – they were not lethal firearms

 

There were aggravating features:

  • More than one stun gun was involved
  • He was intending to sell them on
  • The fact that they were disguised makes it more serious

 

Conclusion of the Court of Appeal

As this was an Attorney-Generals reference, the sentence could only be interfered with if it was ‘unduly lenient’. By allowing the appeal, quintupling the sentence and making it immediate rather than suspended, the Court of Appeal were stating not just that the sentence was wrong, but it was so wrong that they had to interfere with it.

 

Didn’t the Court make an allowance for double jeopardy?

No. There is no discussion of this. Although there is a mandatory sentence, there seems to be no reason in principle why an allowance should not be made for the fact that this a re-sentence. In fact, principle would suggest that an allowance should be made for this.

 

So, where are we? What is exceptional?

This is a continuation of the previous authorities that severely limits the category of offences that will be deemed ‘exceptional’. What we can say is that, generally speaking, the following will not amount to exceptional circumstances:

  • Good character
  • Guilty plea
  • No intention to use the weapon
  • The lawful acquisition of the weapon

Whether individually or taken together.

I previously commented on the Nightingale sentence here, and Mr Downes case seems like a ‘regression to the mean’.

 

Conclusion

It could be said that this confirms that Sgt Nightingale (where, surprisingly, no authorities were quoted by the Court of Appeal) could consider himself to have been rather fortunate.

Maybe the appeal against conviction will give us some further information as to why his sentence appeal was successful where, on the authorities, one wouldn’t have bet against an Attorney-General’s Reference succeeding.

I do however repeat what I said on my previous comment on the Nightingale case – Sgt Nightingale does not belong in prison and a non-custodial sentence was entirely appropriate in his case. However, I stand by the view that his original sentence was not wrong under the law. It is the law that is wrong.

 

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4 thoughts on “When are circumstances ‘exceptional’? Comment on R v Dowes

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