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Firearms extract Firearms Act 1968 s 17_1_ Making use of a firearm

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Firearms extract Firearms Act 1968 s 17_1_ Making use of a firearm Powered By Docstoc
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1.1 Firearms Act 1968 s 17(1) Making use of a firearm with intent to resist arrest. Indictable only. Maximum sentence Life imprisonment. Dangerous Offender provisions For offences committed on or after 4 April 2005 where there is a significant risk to members of the public of serious harm etc. there is a mandatory duty to pass a life sentence when it is justified and otherwise a sentence of imprisonment for public protection 1. For offenders under 18 the duty is to pass detention for life, detention for public protection or an extended sentence2. Minimum sentences For offences in respest of firearms or ammunition specified in Firearms Act 1968 s 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af), or (c) or s 5(1A)(a) committed on or after 6 April 20073 minimum sentence rules apply unless there are exceptional circumstances 4. See the Minimum sentences paragraph. R v Avis 1998 2 Cr App R (S) 178 LCJ Where there are breaches of s 17(1) of the Firearms Act 1968 the custodial term is likely to be of considerable length, and where the four questions suggested above (see the Guideline case paragraph) yield answers adverse to the offender, terms at or approaching the maximum may in a contested case be appropriate. R v Duffy 2005 1 Cr App R (S) 373 The defendant pleaded guilty to having a firearm or imitation firearm with intent to resist arrest, possessing an imitation firearm with intent to cause fear of violence, and making a threat to kill. The defendant was causing a disturbance and when police were called they discovered that he was wanted on a warrant. The defendant called to police out of an upstairs window, produced a black handgun, pointed it a police officer and said ‘I am going to shoot you’. The officer feared for his safety and told the defendant to put the gun down. He didn’t. He pointed the gun at three other officers and threatened to shoot them. The officers took the defendant’s girlfriend away and the defendant shouted and pointed a gun at the arresting officer: ‘Let her go or I will shoot her’. Armed officers were called. They believed the gun was a replica. The defendant put his gun down when officers released his girlfriend. He then produced a petrol can and threatened to burn the house down and showed another weapon which the police believed correctly to be a plastic toy. The other weapon was an ornamental flintlock musket. There was a siege which resulted in the area being cordoned off which lasted from 3.00am to 11.30am. The judge said the offence was very frightening for the officers and it was aggravated by the defendant being wanted on warrant at the time. The defendant, 21, had a bad record for violent behaviour including affray, assault and ABH. Held. The judge was right to pass a severe sentence in this case. 5 years for the possession with intent to resist arrest, 3 years for the possession with intent to cause fear of violence, and 3 years for making a threat to kill, all concurrent to each other, were entirely appropriate. R v Bennett 2006 2 Cr App R (S) 479 The defendant pleaded guilty at the first opportunity to having a firearm with intent to commit an indictable offence, namely to resist arrest (sic) and possessing cannabis. Police stopped a car in a car park and at 1am a PC thought the defendant was intending to join four others in the car. On seeing the police officers the defendant walked away and someone from the car shouted, ‘Cops’. The PC stopped him and noticed a smell of cannabis about him. Before he was searched the defendant said he had some cannabis on him. The defendant made searching him as difficult as possible. The PC thought he felt a weapon and the defendant struggled violently. Eventually a ME38 revolver loaded with five rounds of live ammunition was found. The account he gave in interview was considered lies. He was 24 with 9 court appearances for 19 offences including common assault (punching a security guard who was attempting to detain his friend) and affray in 2001 (attending a property looking for his girlfriend, kicking in rear door and several internal doors and then threatening the occupants). The pre-sentence report said he minimised the seriousness and there was a medium risk of re-offending and of causing harm to the public. Held. IPP was right but 6 years not 10 notional period so 3 years less time on remand. Old case Att-Gen’s Ref. No 120 of 2001 Unreported 23/1/02 (If there had been a trial 8 years’ detention) 1.2 Firearms Act 1968 s 17(2)
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Criminal Justice Act 2003 s 225 Criminal Justice Act 2003 s 226 and 228 Violent Crime Reduction Act 2006 (Commencement No 2) Order 2007 4 Firearms Act 1968 s 51A(b)(iii) as inserted by Violent Crime Reduction Act 2006 s 30

Being arrested for a Schedule 1 offence and being in possession of a firearm. Indictable only. Maximum sentence Life. Dangerous Offender provisions For offences committed on or after 4 April 2005 where there is a significant risk to members of the public of serious harm etc. there is a mandatory duty to pass a life sentence when it is justified and otherwise a sentence of imprisonment for public protection5. For offenders under 18 the duty is to pass detention for life, detention for public protection or an extended sentence6. Minimum sentences In respect of firearms or ammunition specified in Firearms Act 1968 s 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af), or (c) or s 5(1A)(a) committed offences on or after 6 April 20077 minimum sentence rules apply unless there are exceptional circumstances 8. See the Minimum sentences paragraph. 1.3 Firearms Act 1968, s 17(2) Cases R v Avis 1998 2 Cr App R (S) 178 LCJ Where there are breaches of s 17(2) of the Firearms Act 1968 the custodial term is likely to be of considerable length, and where the four questions suggested above (see the Guideline case paragraph) yield answers adverse to the offender, terms at or approaching the maximum may in a contested case be appropriate. R v Thomas 2000 2 Cr App R (S) 155 The defendant pleaded guilty to possessing a firearm when committing a Sch 1 offence and theft. The defendant went to a ‘peep’ show and asked for change. He left and returned and seized a cash bag containing £122 from the cashier. He was chased through the streets. A police officer caught him and an imitation handgun was found on him. It wasn’t used but was of convincing appearance. He said he just liked carrying it. The defendant was 17 and had findings of guilt for failure to surrender to bail, criminal damage and possession of a bladed article. Held. The law on imitation firearms exists to prevent anyone minded to commit a criminal offence from carrying firearms or imitation firearm. If someone carries an imitation firearm when committing an offence, does not produce it and has some entirely credible or innocent reason for its possession the court might be persuaded to unusual leniency. Otherwise it calls for a substantial custodial sentence. Taking into account the defendant’s youth and his plea 15 months cannot be described as excessive. 15 months and 3 months consecutive YOI was not wrong. Att-Gen’s Ref. No 47 of 2006 2007 1 Cr App R (S) 361 The defendant, D pleaded guilty to possession of a firearm at the time of committing a specified offence and two s 20 woundings. He lived in a first floor flat and after drinking he and a friend returned there. They continued drinking. At about 1am, he took a .177 air rifle, loaded it and fired into the street 6–9 times. One passer-by was hit once in her shoulder. Another was hit twice in the back. D was told by his friend it was dangerous. D saw the police and hid the gun in a shrubbery nearby. D was arrested and denied firing the gun. All wounds caused pain and bleeding. The wounds to the person shot twice were superficial. Medical staff decided in all cases it was better to leave the pellets in situ. In his flat, police found pellets near an open window. He was 26 with in 2000 a conviction for ABH (community service and said to be in a dispute with his girlfriend) and in 2001 battery (fine and compensation). He had references and was trying to complete a degree. The pre-sentence report said there was a low to medium risk of re-offending and a medium to high risk to the public. Held. Shooting an airgun across the street was a thoroughly dangerous and reckless act. Drink was no mitigation. If contested the sentence should have been 12– 15 months immediate custody. Because of his plea, his degree, and it was a reference, 6 months immediate not suspended. Old case R v Tudor 1999 1 Cr App R (S) 397 (3 months) For a summary of the case see the second edition of this book. 1.4 Firearms Act 1968 s 18(1) Having a firearm or imitation firearm with intent to commit an indictable offence. Indictable only. Maximum sentence Life. Dangerous Offender provisions For offences committed on or after 4 April 2005 where there is a significant risk to members of the public of serious harm etc. there is a mandatory duty to pass a life sentence when it is justified and otherwise a sentence of imprisonment for public protection 9. For offenders under 18 the duty is to pass detention for life, detention for public protection or an extended sentence10.
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Criminal Justice Act 2003 s 225 Criminal Justice Act 2003 s 226 and 228 Violent Crime Reduction Act 2006 (Commencement No 2) Order 2007 8 Firearms Act 1968 s 51A(b)(iii) as inserted by Violent Crime Reduction Act 2006 s 30 9 Criminal Justice Act 2003 s 225 10 Criminal Justice Act 2003 s 226 and 228

Minimum sentences For offences in respest of firearms or ammunition specified in Firearms Act 1968 s 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af), or (c) or s 5(1A)(a) committed on or after 6 April 200711 minimum sentence rules apply unless there are exceptional circumstances 12. See the Minimum sentences paragraph. R v Avis 1998 2 Cr App R (S) 178 LCJ Where there are breaches of s 18(1) of the Firearms Act 1968 the custodial term is likely to be of considerable length, and where the four questions suggested above (see the Guideline case paragraph) yield answers adverse to the offender, terms at or approaching the maximum may in a contested case be appropriate. Att-Gen’s Ref. No 26 of 2001 2002 1 Cr App R (S) 3 LCJ The defendant was convicted of possession a firearm with intent to commit an indictable offence, 2 counts of threats to kill and an ABH. He pleaded guilty to possessing a firearm without a certificate, possessing a prohibited weapon and selling a prohibited weapon. The defendant married and early on the marriage deteriorated. After ‘unhappy incidents’ his wife obtained a non-molestation order. He went abroad but kept in touch. He returned without warning and at 3am he broke into the former family home where his wife, her sister and her mother were sleeping. He went into the sister’s room and she woke up and began screaming. He grabbed hold of her and put a stun gun to her neck. Initially she thought it was an ordinary gun. Then he dragged her into his wife’s bedroom. He had a leather holster, cable ties and handcuffs and said, ‘I have come back to end it all and I’m taking you and your mother with me. I’m going to kill you and your mother’. He said he had no reason to live and asked to hold his baby and he treated her affectionately. The sister began to hyperventilate and a doctor was called. The ambulance arrived and he took the gun from the holster saying it was real. He removed and replaced the magazine so everyone knew it was loaded. At some stage he tried to handcuff the sister and the mother but he was easily dissuaded. The police arrived and he allowed the older three to go to hospital leaving the baby with the defendant. An 18-hour siege followed and there was no harm to the baby. A large number of officers were involved. He threatened to kill himself. Eventually the defendant was distracted and he was seized. A self-loading pistol and stun gun designed to discharge electricity were recovered. The sister had bruising to the neck. The effect on the 3 victims was very substantial. He was 57, had no convictions and was depressed about the marriage. Held. The breach of the court order was very important indeed. The attack was premeditated and carefully planned. Women are very vulnerable to men who decide to behave in this way. 5 years not 2½ would have been the very lowest sentence appropriate. As it was a reference 4 years. R v Charles 2006 1 Cr App R (S) 265 The defendant pleaded guilty, quite late, to s 18 wounding and possession of a firearm with intent to commit an indictable offence. His girlfriend, who was uninsured and unlicensed, was driving a car belonging to his mother. She collided with a car and had an argument with the victim who was a passenger in the other car over who was responsible for it. The girlfriend rang the defendant and he came out of his nearby house and angrily told the other driver to fix his mother’s car. The victim told the defendant to contact the police and the defendant went back inside the house and reappeared, saying he wanted his mother’s car fixed. He spoke to the victim, then pulled a semi automatic handgun out of his pocket and fired at a range of two foot into his forehead. The shot blew off the victim’s glasses and he suffered a jagged forehead wound which was stitched. He was deeply psychologically affected. On arrest the defendant made a number of false statements and gave a prepared statement setting out a false alibi. The gun was a converted blank firing pistol. The ammunition had been homemade by fitting a metal projectile into a blank cartridge case. A basis of plea said that the defendant did not believe that and did not intend that the gun and ammunition would be lethal, although it accepted that in fact they were. The defendant, 24, had a number of previous convictions including 2 for possession of a bladed article and a robbery, which had not involved the use of a weapon. Held. The lack of life threatening or very serious injury was wholly fortunate and not a matter of real significance. The sentence was excessive because of the plea of guilty, albeit late, and because it is important that a distinction is preserved between s 18 offences, grave though they may be and attempted murder. 12 years, not 14. Att-Gen’s Ref. No 311 of 2004 2006 1 Cr App R (S) 310 (It is likely the Ref. no. is wrong but that no is in the judgement.) The defendant D was convicted of conspiracy to blackmail and conspiracy to possess a firearm with intent to endanger life. The defendant T was convicted of the second conspiracy and witness intimidation. T also pleaded guilty to possession of heroin with intent to supply. D had been involved in supplying drugs to M, who as a result owed him £100,000. Hussain, a friend of M’s came to see them and was effectively kidnapped by H, who was said by the prosecution to be one of those involved in the conspiracy to blackmail. Hussain was put in fear of his life, held for a matter of hours and eventually £5,000 was obtained which secured his release. D then decided to arrange for a drive-by shooting at M’s home to obtain the rest of the debt. H obtained a sawn-off
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Violent Crime Reduction Act 2006 (Commencement No 2) Order 2007 Firearms Act 1968 s 51A(b)(iii) as inserted by Violent Crime Reduction Act 2006 s 30

shotgun. T and others were recruited and T obtained a car from G. The car was to be destroyed afterwards. T himself was not near the scene of the shooting. Two shots were fired at M’s house. The car drove away and returned and two more shots were fired which entered two of the windows of the house. M was not there but M’s mother and sister were in the house at the time. They were unhurt but terrified. H was murdered shortly afterwards and M and others await trial for that. G was arrested and made a witness statement saying he had supplied a car to T. His girlfriend also made a statement. T sent a text message to G saying ‘We are coming for you both. You fucking grass. We will tell everyone about you both’. When T’s home was searched police found 11.2 grams of heroin with a purity of 50%, worth £560. T pleaded guilty to possession with intent to supply on an accepted basis that he was a custodian of the drug and money that was found was also for that person. The judge decided that D played a principal part in the conspiracy. D, aged 34, was not of good character although he had no ‘significant convictions’ and had not been sentenced to any term of imprisonment. The judge described T, aged 46, as a ‘gofer’ and further down in the conspiracy than D. Held. The incident was part of a gang feud. For D the firearm offence was particularly serious because it was committed in circumstances which clearly gave rise to significant risk of injury or death. The appropriate sentence was 14–15 years not 9. Bearing in mind it was a reference, 13 years. Firearms offences are normally dealt with by way of consecutive sentences to any other matter. But bearing in mind the length of the appropriate sentence for the firearms offence and it was a reference the concurrent sentence on the conspiracy to blackmail of 4 years was unchanged. For T it was wrong in principle not to have imposed consecutive sentences and his total sentence was lenient. Bearing in mind again it was a reference the individual sentences were not increased. 4 years for conspiracy to possess a firearm, 6 months for the offence of witness intimidation and 2 years for possession with intent to supply all consecutive not concurrent, making a total of 6½ years not 4. Old case R v Avis 1998 Re M 2 Cr App R (S) 178 at 190 (42 months) For a summary of the case see the second edition of this book.


				
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