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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Price v. Her Majesty's Advocate [2007] ScotHC HCJAC_44 (18 July 2007) URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_44.html Cite as: [2007] HCJAC 44, [2007] ScotHC HCJAC_44 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Macfadyen C. G. B. Nicholson,
Q.C. |
[2007] HCJAC44Appeal No: XC 68/07 OPINION OF THE COURT delivered by LORD MACFADYEN in NOTE OF APPEAL AGAINST SENTENCE by WILLIAM PRICE Appellant; against HER MAJESTY'S ADVOCATE Respondent. |
Act: Forbes; Balfour & Manson
Alt:
[1] On
|
"(1) |
on 9 October 2006 at the Harbour Car Park, Knockcushan,
Girvan, you ... did conduct yourself in a disorderly manner, shout and swear,
threaten to shoot David Blackhurst, Alexander Philip, Hugh McCarry, Claire
Traynor, James Stewart and Jodie Lockhart, ... place said persons in a state of
fear and alarm and commit a breach of the peace; |
|
(2) |
on [the same date at the same place], you ... did have in
your possession a firearm with intent to cause a person, namely Hugh McCarry
... to believe that unlawful violence would be used against him; CONTRARY to
the Firearms Act 1968 section 16A as amended by the Firearms Amendment Act
1988 and the Firearms (Amendment) Act 1994". |
The plea was tendered at the first diet.
[2] On
"The locus was a car park in Girvan
which was busy with vehicles and pedestrians.
It is a popular meeting place in central Girvan. At about
[4] The sheriff
explained his reasons for selecting the sentence he did as follows:
"I took the view that this was not an
appropriate case for a community based disposal. This man ... clearly is not prepared to alter
his drinking or to behave himself. He
was very much out of control at the time of the present offences, shouting,
swearing, threatening to kill people. He was then in possession of the firearm,
which was seen and led the complainer [in charge 2] to believe that it would be
used against him. This was very much an
ongoing incident encompassing Charges One and Two. However, Charge Two carries a maximum penalty
of ten years imprisonment. It is clear
that Parliament intended that this charge under the Firearms Act be treated
very seriously. The complainers took the
matter very seriously by getting off their mark and telephoning the police. The police took the matter very seriously by
calling out the Armed Response Unit.
It is true that the appellant is not
a major criminal involved in a bank robbery or whatever. Nevertheless his behaviour was quite
outrageous and ultimately frightening for the public and no doubt for the
police who had to deal with this matter.
...
In the whole circumstances of the
incident I took the view that a custodial sentence had to be imposed. Firearms have to be very strictly controlled
and any misuse of firearms must attract condign punishment. I was concerned about this particular
offending but also about the message that has to be sent out regarding the
possession or misuse of firearms. The
Crown had proceeded by way of Solemn Procedure.
I took the view that the offending had to be marked by a custodial
sentence.
I came to the conclusion that a
starting point for this whole incident by way of a cumulo sentence would be two
years. The appellant had pled guilty at
the first diet. I accordingly allowed him
a discount restricting the sentence to eighteen months."
[6] Since charge
2 relates to a contravention of a United Kingdom statute, and since we were
aware that sentencing guidelines had been laid down in that connection by the
Court of Appeal in R v Avis [1998] 2 Cr App R (S) 178, we
invited Mr Forbes to address us on that case.
He drew our attention to the following passage in the judgment of Lord
Bingham CJ at 181:
|
"The appropriate level of sentence for a firearms offence,
as for any other offence, will depend on the facts and circumstances relevant
to the offence and the offender, and it would be wrong for this Court to seek
to prescribe unduly restrictive sentencing guidelines. It will, however, usually be appropriate
for the sentencing court to ask itself a series of questions: |
|
|
(1) |
What sort of weapon was involved? Genuine firearms are more dangerous than
imitation firearms. Loaded firearms
are more dangerous than unloaded firearms.
... Possession of a firearm which
has no lawful use (such as a sawn-off shotgun) will be viewed even more
seriously than possession of a firearm which is capable of lawful use. |
|
(2) |
What (if any) use has been made of the firearm? ... [T]he more prolonged and premeditated and
violent the use, the more serious the offence is likely to be. |
|
(3) |
With what intention (if any) did the defendant possess or
use the firearm? Generally speaking,
the more serious offences under the Act are those which require proof of a
specific criminal intent (to endanger life, to cause fear of violence, to
resist arrest, 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 the firearms offence is
inevitably increased if the offender has an established record of committing
firearms offences or crimes of violence." |
At page 185, the Lord Chief Justice added:
"Any rigid, formulaic approach to
levels of sentence would be productive of injustice in some cases. Even offences which on their face appear to
be very grave may on examination turn out to be less so. However, given the clear public need to
discourage the unlawful possession and use of firearms, both real and
imitation, and the intention of Parliament expressed in a continuing increase
in maximum penalties, the courts should treat any offence against the
provisions referred to above as serious."
Among the "offences referred to above" was that created by
section 16A of the Firearms Act 1968, as amended. At page 183, Lord Bingham pointed out that
while the section was introduced primarily to deter the intimidatory use of
imitation firearms, it expressly covers real firearms
also. He reviewed four cases covering a
range of circumstances: Wilby (5 March 1996, unreported) - a
real gun held for six minutes against the victim's temple - four years
imprisonment after trial; Thompson [1997]
2 Cr App R (S) 188 - pointing an old but genuine air pistol at the victim - two
years imprisonment on a plea of guilty; Mercredi
[1997] 2 Cr App R (S) 204 - an imitation firearm had been used - for
special and unusual reasons relating to the offence and the offender five years imprisonment was reduced on appeal
to twelve months; Hammond (22 May
1997, unreported) - a shotgun was discharged over the head of the victim at
close range - three years imprisonment upheld on appeal.
[9] When the
circumstances of the offence are weighed along with the personal circumstances
of the appellant, we are of opinion that the sheriff was entitled to regard the
offence as being of such seriousness as to merit a custodial sentence. We are not persuaded that the sheriff erred
in that respect. We do consider,
however, that when regard is had to the points made in mitigation, including
the steps taken by the appellant to moderate his drinking, the starting point
of two years selected by the sheriff was higher than necessary. A starting point of twelve months would, in
our view, have been sufficient. Adopting
the percentage discount applied by the sheriff in respect of the plea of guilty,
the result is a cumulo sentence of
nine months imprisonment. Since the
sentence was backdated to