No: 201006058/A7 
Neutral Citation Number: [2011] EWCA Crim 861
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 10 March 2011

B e f o r e:

LORD JUSTICE RICHARDS 

MR JUSTICE SPENCER 
 
SIR CHRISTOPHER HOLLAND 
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R E G I N A 

v 

MARY BOATENG 
 
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Mr R Cohen appeared on behalf of the Appellant
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J U D G M E N T
1.	MR JUSTICE SPENCER:  Mary Boateng, who is now 20years of age, appeals with the leave of the single judge against a sentence of five years' detention imposed by Mr  Recorder Atchley in the Crown Court at Kingston upon Thames on 28 July 2010.  She had pleaded guilty to possessing a prohibited firearm and to two counts of possessing ammunition.  
2.	The items in question had been recovered by the police when a search warrant was executed at her flat on 7 April 2010.  They were in a rucksack or sports bag.  She admitted being in possession of the bag but denied knowing these items were inside it.  She said that the bag had been left at her flat two days earlier by a friend whom she named.  She suspected that the bag might contain “something bad”.  She had been told not to touch the bag and did not do so until she saw the police arriving, at which point she moved it from her own flat to a communal hallway.
3.	  The firearm was a .22 calibre Derringer style rimfire pistol.  There was a variety of different ammunition within the bag in separate packages.  In total, there were 305 rounds of ammunition of which 149 would have fitted the pistol.  Three rounds had been modified to make them expanding ammunition.  The remainder could have been possessed lawfully with a licence.
4.	Count 1, which charged possession of a prohibited firearm contrary to section                                                                             5(1)(aba) of the Firearms Act 1968, carries a statutory minimum sentence of five yearsimprisonment.  Count 2, which alleged possession of expanding ammunition contrary to section 5(1)(f) of the Act, also attracted the five year statutory minimum.  Count 3, possessing ammunition without a firearm certificate contrary to section                                                                             1(1)(b) of the Act did not attract the statutory minimum sentence.
5.	The judge held a Newton hearing to determine as a question of fact whether the appellant genuinely had no knowledge that the firearm and ammunition were in the bag.  That issue was resolved in her favour.  The judge was clearly impressed by her as a witness.  He found that the appellant knew or believed that the contents of the bag were, to use her own word, "dodgy", as had been asserted in her basis of plea, but the judge was not satisfied that she had actual knowledge of the contents and was not satisfied that she had any part or involvement in or with the firearm or ammunition, save that she held the bag for two days at the request of someone else, probably the man she referred to as "Andy".  The judge found that she was a young woman who been very foolish,and who had been badly misused.
6.	  The appellant was a young woman of impeccable character, attested to by a number of impressive references, and she was studying for a degree.
7.	It is clear that the purpose of the Newton hearing was not directed to the issue of whether exceptional circumstances could be found relating to the offence or the offender which might justify the court in not imposing the statutory minimum term of five years, which is the basis of the appeal.  Indeed, at the start of his ruling in the Newton hearing the judge said in terms that:
"No special reasons have been put forward to seek to reduce the minimum."
8.	The judge made it clear in his sentencing remarks that had he rejected her evidence in the Newton hearing, the starting point for her sentence would have been eight to nine years having regard to the seriousness of the offences.  He said that the contents of the bag smacked of an armoury.  The only possible reason anyone could have such a selection of ammunition was to provide it illicitly onto the gun market in south London.  He observed that, although there were many guns on the streets of London, there was a paucity of ammunition.  People who provide ammunition such as this, he said, fill that gap and doubtless do so for a great deal of money.  He accepted that the appellant had been dragged into this very sordid matter with her eyes closed.
9.	The judgee imposed the statutory minimum sentence of five years on counts 1 and 2 and imposed the same sentence on count 3.  There is, of course, no permissible reduction even for a guilty plea from the statutory minimum.  He said:
"If I could pass less, may I make it very plain, I would.  I                                                                             cannot, on the basis of matter as it is presented to me today."
10.	Mr Cohen, who did not appear in the court below, submits that, had it been argued, the judge could properly have found exceptional circumstances in this case in the light of his findings in the Newton hearing.  The point of principle raised in his grounds of appeal is whether the fact that a defendant is genuinely unaware that he or she is in possession of a prohibited firearm or ammunition within a bag or other container can in itself amount to exceptional circumstances.
11.	The starting point, we agree, is the decision of the Court of Appeal in Rehman [2006] 1 Cr App R(S) 77.  The Court of Appeal had to consider submissions that section                                                                             51A of the Firearms Act 1968, which provides for the statutory minimum sentence, was incompatible with the European Convention on Human Rights, articles 3 and 5, as it could result in arbitrary and disproportionate deprivation of liberty.  At paragraph                                                                             14 of the judgment  the Lord Chief Justice said this:
"Before proceeding further it is necessary to determine the meaning of section 51A(2) in accordance with the ordinary principles applicable to statutory interpretation.  This involves seeking to determine the meaning of the language used by Parliament in its statutory context.  It is to be noted, as already pointed out, that part of the context is that section 5 of the Firearms Act creates an absolute offence.  Secondly, the purpose of the provision is to ensure that absent exceptional circumstances the courts will always impose deterrent sentences.  However, it is to be noted that if an offender has no idea that he is doing anything wrong, a deterrent sentence will have no deterrent effect upon him.  The section makes clear that it is the opinion of the court that is critical as to what exceptional circumstances are.  Unless the judge is clearly wrong in identifying exceptional circumstances when they do not exist, or clearly wrong in not identifying exceptional circumstances when they do exist, this court will not readily interfere."
12.	The court explained the rationale of the statutory provisions as follows at paragraph                                                                             12 of the judgment:
"So far as we can determine the rationale of Parliament, the policy was to treat the offence as requiring a minimum term unless there were exceptional circumstances, not necessarily because the offender would be a danger in the future, but to send out the deterrent message to which we have already referred.  The mere possession of firearms can create dangers to the public.  The possession of a firearm may result in that firearm going into circulation.  It can then come into possession of someone other than the particular offender, for example by theft, in whose hands the firearm would be a danger to the public.  Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section refers.  This makes the provision one which could be capable of being arbitrary.  This possibility is increased because of the nature of section 5 of the Firearms Act.  This is different from most sections creating criminal offences.  In the majority of criminal offences there is a requirement that the offender has an intention to commit the offence.  However, firearms offences under section 5 are absolute offences.  The consequence is that an offender may commit the offence without even realising that he has done so.  That is a matter of great significance when considering the possible effect of section 51A creating a minimum sentence." 
13.	There have been many appeals to this court against the refusal by a sentencing judge to find exceptional circumstances not to impose the minimum five year sentence for possession of prohibited firearms.  A number of principles have emerged.  Our attention has not, however, been drawn to any previous decision of this court on the point that arises starkly in the present appeal.
14.	The relevant principles were most recently considered in Ocran [2011] a Cr App R(S) 36.  In that case a semi‑automatic pistol, a shotgun and a silencer were found beneath a wardrobe in the flat of the appellant, a 24 year old woman of previous good character.  They had been put there three weeks earlier by a man who had access to the property.  She admitted that she knew they were there and had made no attempt to contact the police.  Her appeal was dismissed.  In the course of the judgment of the court Aikens LJ referred to Edwards [2007] 1 Cr App R(S) 111 in which court emphasised that strong personal mitigation on its own was unlikely to be sufficient to amount to exceptional circumstances.  That was because, if it was so, there would be a risk that those looking for a safe haven to harbour dangerous firearms would target persons whose personal circumstances might excite the sympathies of the court.  If that exercise was successful, it would undermine the very policy of the minimum term, i.e to deter the possession of these types of firearms.
15.	  To a degree the same principle applies in a case such as this.  If those looking for a safe haven to harbour dangerous firearms target persons who they can trust not to look inside the bag which is left with them so that such persons can claim truthfully that they did not know the bag contained firearms, the policy of the minimum term would in the same way be undermined.  
16.	On the other hand, applying the reasoning of the court in Rehman the fact that an offender may commit an offence without even realising he has done is so is a matter of "great significance" when considering whether the operation of section                                                                             51A in a particular case leads to an arbitrary and disproportionate sentence.
17.	The crucial feature of this case is that the judge was satisfied after holding a full Newton hearing that the appellant was genuinely unaware that the bag contained firearms and ammunition.  That is a high threshold for any defendant to achieve.  We would expect any court dealing with such a case to subject to the closest scrutiny any plea of lack of knowledge of the contents of a bag or container.
18.	In R v Lashari [2010] Crim LR 783 this court held that where a defendant advances exceptional circumstances in a firearms case the burden is on the Crown to disprove the truth of the defendant's assertion.  In that case the defendant had put into the boot of his car two bags he had found close to his car in a parking bay.  One of the bags contained what looked like a gun.  He forgot about the bags in the boot and was never aware that the gun was a lethal firearm.  He did realise it was a gun.  Although the sentencing judge had applied the wrong burden and standard of proof, this court concluded that even if the defendant's version of events had been true, or might have been true, it did not follow that there were exceptional circumstances.  The defendant in that case had deliberately put the bag in his car believing it contained a gun and he kept it there.  It is implicit in the reasoning of the court, however, that had he been unaware that there was a gun in the bag at all, the position might well have been different.
19.	In the present case the appellant's criminality lay in being prepared to receive into her flat a bag which she suspected was somehow linked to crime.  In doing so she acted at her peril but she did not know the bag contained firearms and ammunition.  In our judgment there were exceptional circumstances, which, had the point been argued, would have entitled the judge not to impose the minimum five year sentence.  It is clear that had the judge believed such a course was open to him he would have taken it.  
20.	It follows that we are persuaded that it is proper to allow the appeal and to impose instead a determinate sentence consistent with the appellant's criminality.  Mr                                                                             Cohen submitted that this case ought to be equated with, if not treated less seriously than, the offence in Edwards, to which we have referred. He submits that in that case the appellant was older and at least had some knowledge that the items she was looking after were firearms.
21.	We do not think it is appropriate to draw such comparisons.  We think that justice will be done in this case if the sentence upon this appellant is reduced from five years to two years, a sentence which we think reflects properly the appellant's true criminality whilst giving her full credit for her guilty pleas.
22.	  We therefore quash the sentences of five years' detention and we substitute on each count concurrent sentences of two years' detention.  To that extent the appeal is allowed.  As the appellant has already served almost the equivalent of a two year sentence, it follows that she will be eligible for release in the very near future.