Guernsey Law Reports 2007–08 GLR 207
TAYLOR v. LAW OFFICERS OF THE CROWN
COURT OF APPEAL (Beloff, Smith and Carey, JJ.A.): December 12th, 2007
Criminal Procedure—appeals—leave to appeal—appeal to Court of Appeal as of right under Court of Appeal (Guernsey) Law 1961, s.24(a) and no leave required if appeal on “question of law alone”—whether evidence sufficient to support conviction unlikely to be “question of law alone” as may involve additional questions of fact, becoming “question of mixed law and fact” requiring leave under s.24(b)
Firearms—possession and use—sentence—guidelines to be followed—(a) what sort of weapon involved—genuine or imitation, loaded or unloaded; (b) what use, if any, made of weapon; (c) with what intention did accused possess it; and (d) what was accused’s record relating to firearms offences or crimes of violence—custodial sentence likely
The appellant was charged in the Royal Court on one indictment with possessing and uttering counterfeit notes contrary to the Currency Offences (Guernsey) Law 1950, ss. 8 and 9, and on a second indictment with possession of a prohibited weapon and prohibited ammunition contrary to the Firearms (Guernsey) Law 1998, s.6(1).
The appellant’s claim in respect of the first indictment was that he had received the counterfeit notes as payment for furniture he sold to M, and stored it in a cash-box in his shop. M maintained in evidence that his business did not normally deal in £20 notes (which were the subject of the charge) but had paid for the furniture in £10 notes. The appellant disposed of them in making a purchase at another shop. His defence throughout was that he was not aware that the notes were counterfeit. Following a plea of not guilty, he was convicted and sentenced concurrently to 12 months’ imprisonment on all counts.
On application for leave the appeal against these convictions, the appellant submitted that the judge had misdirected the Jurats (a) on the ingredient of knowledge required in the offence; (b) in over-emphasizing the importance of M’s evidence; (c) in giving the impression to the Jurats that they might wish to prefer M’s evidence; (d) in failing to correct the false and misleading impression that the appellant was involved in the production of the counterfeit notes; (d) in failing to remind the Jurats of the appellant’s explanation of the receipt of the notes when directing them
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what inferences could be drawn from circumstantial evidence; and, consequently (e) the verdict was unreasonable.
He further submitted that no leave to appeal was in fact required, since all the grounds of the appeal involved questions of law alone.
The second indictment concerned the possession of a prohibited weapon (a World War II Mauser 6.35 mm. automatic pistol) and quantities of compatible ammunition, found at the appellant’s house when searching for counterfeit notes. He volunteered that he was in possession of an unlicensed firearm and it was recovered, loaded, with the ammunition, from a locked box in an upstairs cupboard. He had bought it from a friend nearly 25 years earlier, had not used it for years and kept it only for its (presumably increasing) value. He pleaded guilty to the charges and was sentenced to 12 months’ imprisonment, to run concurrently with each other but consecutively to the sentences on the first indictment.
On application for leave to appeal against sentence, the appellant submitted that (a) he did not use the weapon and had not done so for years; (b) he had no intention of using it; (c) he was of good character and there was nothing to suggest that he was prone to violence, let alone in relation to firearms; (d) he had volunteered the information to the police; (e) he had locked the firearm and ammunition in a box and kept the key separately; (f) he had pleaded guilty at the first opportunity; and (g) he had been assessed as not likely to re-offend and had a young family which was being adversely affected by his imprisonment.
Held, refusing leave to appeal in respect of the counterfeiting offences and granting leave (and reducing the sentence) in respect of the firearms offences:
(1) The appeal against the convictions on the counterfeiting offences required the leave of the court, as it did not raise “a question of law alone” within the meaning of s.24(a) of the Court of Appeal (Guernsey) Law 1961. Although there was authority to the contrary, it did not appear in this context that the question whether there was evidence to support a conviction was a pure question of law, as additional questions of fact had been raised in the grounds of appeal and the application therefore became “a question of mixed law and fact” within the meaning of s.24(b), requiring leave to be granted by the Court of Appeal. The distinction was emphasized by s.25(1) which differentiated between a pure question of law (i.e. on which there was a wrong decision) and one whether a decision was “unreasonable or [could] not be supported having regard to the evidence.” The “appeal” would therefore be treated as an application for leave to appeal, which would be refused (para. 6; paras 8–9; para. 11).
(2) None of the grounds advanced justified the granting of leave. The trial judge had made abundantly clear that the key issue was whether the appellant knew that the notes were counterfeit; he neither, in the context of the case, put too much emphasis on M’s evidence but directed the Jurats properly in evaluating it, nor did he betray any strong personal views as to M’s credibility; he explicitly stated that there was no evidence that the
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appellant was involved in the production of the notes; he did not close off from the Jurats the proposition that M could innocently have passed on the counterfeit notes but stressed that M’s innocence did not establish the appellant’s guilt; and since the Jurats had heard and seen both M and the appellant, they had clearly—insofar as it was necessary to do so—preferred the evidence of M, after receiving directions from the judge that it was not for the defence to prove anything against M and that they were the sole judges of fact. As holders of judicial office, Jurats were more experienced in the affairs of law and legal procedure than normal jurors in the United Kingdom and it was especially difficult to make good any challenge to their verdict as unreasonable: there was certainly nothing in the present case to suggest other than that they had performed their functions impeccably (para. 15; paras 18–19).
(3) An immediate custodial sentence for the firearms convictions was certainly justified but in the circumstances the sentence passed was manifestly excessive and it would be reduced to one of nine months on each count, to run concurrently with each other but consecutively to the sentence on the counterfeiting charges. The guidelines to be followed in sentencing required the court to consider four questions: (a) what sort of weapon was involved—genuine or imitation, loaded or unloaded? (the appellant scored badly on this question); (b) what use, if any, was made of the firearm? (the appellant scored highly as he had made no use of the weapon except at a gun club); (c) with what intention did he possess it? (the appellant scored badly on this question, largely because he was unable to explain why, as a man experienced with firearms and their licensing, he had kept the weapon and the ammunition for many years, knew that unlicensed possession was unlawful, had failed to dispose of the ammunition when he had the opportunity to do so, knew that they were kept in “unsafe” storage (especially with a young son in his house), did not disclose their existence to his wife, yet not feel it was morally wrong to keep them and they would probably have remained hidden had they not been disclosed on this occasion); and (d) what was the offender’s record relating to firearms offences or crimes of violence? (on which the appellant scored highly as he had no such record). Nevertheless, on the facts of this individual case, the sentence passed was excessive and would be reduced as indicated above (para. 25; paras. 28–30).
Cases cited:
(1) George v. Law Officers, 2007–08 GLR N [10], referred to.
(2) Gilbey v. R., English C.A., January 26th, 1990, unreported, dicta of Lloyd, L.J. referred to.
(3) Guest v. Law Officers, C.A., Judgment 8/2003, January 9th, 2003, unreported, referred to.
(4) Law Officers v. Whales (1993), 16 GLJ 87, distinguished.
(5) Mears v. R., [1993] 1 W.L.R. 818; (1993), 97 Cr. App. R. 239; [1993] Crim. L.R. 885, applied.
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(6) R. v. Allen, [2001] 2 Cr. App. R. (S.) 76; [2001] EWCA Crim 302, referred to.
(7) R. v. Avis, [1998] 1 Cr. App. R. 420; [1998] 2 Cr. App. R. (S.) 178; [1998] Crim. L.R. 428; [1997] EWCA Crim 3355, followed.
(8) R. v. Horn, [1997] 2 Cr. App. R. (S.) 172; [1996] EWCA Crim 1786, referred to.
(9) R. v. Lindsay, [1998] 1 Cr. App. R. (S.) 324; [1997] EWCA Crim 2038, referred to.
(10) Tilley v. Law Officers, C.A., November 27th, 1973, unreported (Guernsey C.A. Judgments 88), dicta of Le Quesne, J.A. applied.
M.G.A. Dunster for the appellant;
G.D. McKerrell, Crown Advocate, for the Crown.
1 BELOFF, J.A., delivering the judgment of the court:
Introduction
This is an appeal by Mr. Taylor against his conviction by the Royal Court on one indictment containing three counts of uttering and two counts of possessing forged paper money contrary to ss. 8 and 9 of the Currency Offences (Guernsey) Law 1950 (“the counterfeit convictions”) and against his sentence imposed by the Royal Court on the second indictment containing two counts of possession, first, of a prohibited weapon, and secondly, of prohibited ammunition contrary to s.6(1) of the Firearms (Guernsey) Law 1998 (“the firearms convictions”).
2 In respect of the first indictment, Mr. Taylor pleaded not guilty but was found guilty on May 17th, 2007. He was subsequently sentenced on September 5th, 2007 to 12 months’ imprisonment concurrently on each of Counts 1 to 5, against which he does not appeal.
3 In respect of the second indictment, Mr. Taylor pleaded guilty, and was sentenced also on September 5th, 2007 to 12 months’ imprisonment on each of Counts 1 and 2, concurrent with each other but consecutive to the sentences in respect of the first indictment.
4 In a notice of appeal dated May 25th, 2007, Mr. Taylor applied for leave to appeal against the counterfeit convictions on the basis that the verdict was unreasonable and could not be supported by the evidence. The gist of the grounds was that the Lieutenant Bailiff’s summing-up was not comprehensive and failed to bring out a series of points in Mr. Taylor’s favour, and further that the Jurats’ decision to convict him was perverse.
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These arguments were elaborated in a second notice of application dated October 19th, 2007. In correspondence with the single Judge of Appeal, it was asserted that no leave was required since all the grounds of appeal involved a question of law.
Application or appeal?
5 There is then a preliminary point as to whether this assertion was correct. The Court of Appeal (Guernsey) Law 1961 provides, so far as material, as follows:
“PART III
Appeals in Criminal Matters
[Section 24 reflects the (now repealed) s.3 of the Criminal Appeal Act 1907].
24. A person convicted on indictment or summarily convicted in the Royal Court sitting as a Full Court on or after such day as shall be appointed in that behalf by Ordinance of the States may appeal under this Part of this Law to the Court of Appeal—
(a) against his conviction, on any ground of appeal which involves a question of law alone; and
(b) with the leave of the Court of Appeal or upon the certificate of the judge who presided at his trial that it is a fit case for appeal against his conviction, on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal . . .
25. (1) The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground that there was a miscarriage of justice, and in any other case shall dismiss the appeal:
PROVIDED that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
6 What then is a question of law? In Law Officers v. Whales (4) this court said (16 GLJ 87, at para. 16):
“The learned Bailiff invited the Jurats to decide (i) whether there
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was sufficient evidence for the Deputy Bailiff to find a conviction; and (ii) whether they had any doubt whether there had been a miscarriage of justice. It is well settled that the question whether in any case there is evidence to support a conviction is not a question of fact but a question of law. The first of the questions left to the Jurats in this case was therefore a question of law. As such it was, under the Royal Court of Guernsey (Miscellaneous Reform Provisions) Law, 1950, section 6(2)(a), within the sole competence of the Bailiff, and should not have been put to the Jurats.”
7 This appears to have been accepted by this court in a case heard earlier this year (George v. Law Officers (1)) when Advocate Merrien commented in argument:
“Now, that has since developed into the practice of all appeals against conviction from the Magistrate’s Court to the Royal Court being dealt with as under a point of law alone, and that makes a great deal of difference as Jurats do not sit in the appeals, or have not sat, I think, since that case, in connection with appeals, even though they are arguing about whether there was sufficient evidence or whether the decision was correct upon the evidence.”
8 However, we note that in neither case was the 1961 Law specifically interpreted; and the context of both cases was an appeal against the judgment of the Royal Court on appeal from the Magistrate’s Court. In Archbold, Criminal Pleading, Evidence & Practice, 36th ed., para. 861, at 292 (1966) the commentary on s.3 of the Criminal Appeal Act 1907, the analogue of the 1961 Law, states:
“An appeal by a person convicted lies as of right on grounds involving a question of law alone. Under section 3(b) leave to appeal is necessary where the ground involves a question of mixed law and fact. A convicted person who is entitled under section 3(a) to appeal without leave on a question of law does not obtain the right also to appeal without leave on a ground of fact or of mixed law and fact merely by including such grounds in his notice of appeal: R. v. Robinson (Practice Note) [1953] 1 W.L.R. 872; 37 Cr. App. R. 95. A certificate should not be granted by the judge of the court of trial except in cases which clearly come within subsection (b). See R. v. Langley, 17 Cr. App. R. 199; R. v. Parkin, 20 Cr. App. R. 173; R. v. Boseley, 26 Cr. App. R. 99; R. v. Eyles (1963) 47 Cr. App. R. 260, where the judge was persuaded by defending counsel to grant a certificate, although he himself was of opinion that there was sufficient evidence to justify a conviction; but as to the advisability of the judge granting a certificate when he thinks that there is a point of law proper to be investigated by the Court of Criminal Appeal: see R. v. Yindrich (Practice Note) [1953] 1 W.L.R. 893; 37 Cr. App. R.
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118. If a convicted person appeals against his conviction on the ground that the hearing of the preliminary issue was open to objection for error in law, so that he should never have been tried on the substantive charge at all, the Court of Criminal Appeal has jurisdiction to entertain the appeal: R. v. Podola [1960] 1 Q.B. 325; 48 Cr. App. R. 220.
In order that there may be a right of appeal on a question of law, a ground of appeal must be raised, which is, in the opinion of the court, a question of law, and the right cannot be obtained merely by raising a ground which the grounds of appeal or the submission of counsel at any later stage describe as a question of law. Before a right of appeal on a question of law can be demanded or asserted, a question of law alone must have risen in the appellate proceedings and remained undetermined. Where the court has decided that there was no such point of law alone, this decision cannot be reviewed at any subsequent sitting of the court: R. v. Hinds (1962) 46 Cr. App. R. 327.”
9 As it seems to us, whatever meaning may be attributed to the concept of a “question of law” in other contexts, in the 1961 Law there has been a distinction in s.24 deliberately drawn between questions of law, questions of fact, and questions of mixed law and fact, and the distinctive procedural incidents of each, and that s.25 differentiates between questions of law (on which there is a wrong decision) and other grounds giving rise to an appeal including those of a verdict which “cannot be supported having regard to the evidence.”
10 We consider that the need to obtain leave for appeals other than those involving pure questions of law provides a useful filter and prevents the Full Court from having its timetable clogged up with unmeritorious appeals.
11 We shall therefore treat this “appeal” which, as appears from our recitation of Mr. Taylor’s points at para. 18 below, raises, in our judgment, no such pure question of law as being an application for leave, which (if granted) can be treated as a substantive appeal since we have de bene esse heard full argument.
12 In his application dated September 5th, 2007, Mr. Taylor applied for leave to appeal against the sentence of 12 months for possession of an unlicensed firearm and ammunition on the grounds that it was manifestly excessive.
13 We shall deal with each separate matter, conviction and sentence, in the logical order reflecting indeed counsel’s presentation.
Counterfeit convictions
14 As to the counterfeit convictions, there was no issue that the money
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was counterfeit. Mr. Taylor’s defence was that he was not aware that the money was counterfeit. His evidence was that he believed he had received the money in return for furniture he sold on three occasions to a Mr. Mann, proprietor of a Chinese takeaway, and that he then stored it in a cash box in a shop which he owned. Mr. Mann’s evidence was that he paid for the furniture in £10, not £20 notes and indeed that in his own business £20 notes were a rarity. Mr. Taylor accepts he is likely to have passed the money on to the Total convenience store known as Jeffrey’s Service Station on June 8th/9th and 10th, 2006. So the only issue was as to Mr. Taylor’s knowledge that the notes were forged.
15 In an appeal against conviction it is necessary to bear in mind at all times the following matters:
(i) The jurisdiction of this court is defined by the 1961 Law (the material parts of which we have already recited).
(ii) The powers of this court are therefore more limited than those currently enjoyed by the Court of Appeal (Criminal Division) in England and Wales, which incorporates the concept of an “unsafe” verdict, and, by judicial gloss, that of a lurking doubt.
(iii) Where an appeal is from the verdict of Jurats, who are not “speaking,” i.e. do not disclose the reasons upon which the verdict is based, “if the summing up is sound the court may well not able to interfere unless the verdict is obviously wrong” (Guest v. Law Officers (3)).
(iv) The only available grounds for an appeal under the 1961 Law are that (a) the verdict is unreasonable; (b) the verdict cannot be supported having regard to the evidence; (c) there has been a wrong decision of any question of law; or (d) on any ground there was a miscarriage of justice. The grounds may overlap. For example, a verdict that cannot be supported by the evidence will obviously be unreasonable. A wrong decision of any question of law can create a miscarriage of justice. (They will not, however, necessarily do so. A judge may conduct a trial so unfairly, for example by excessive intervention, as to lead to a miscarriage of justice without committing an identifiable error of law.)
(v) Summing-up itself is an art not a science. There is no template. The judge who sums up must give correct directions as to law and fairly put the case for the defence. He cannot do less; how much more he should do depends axiomatically on the length and complexity of the matters in issue in the trial.
(vi) Brevity is not of itself a vice, in particular where the evidence is fresh in the fact-finders’ minds; indeed it is, subject to what is said in sub-para. (v), usually a virtue.
(vii) In assessing the rightness or wrongness of the verdict, the Court of
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Appeal must at all times bear in mind that the function of fact finding has been left to the lower court and that, particularly where credibility is in issue, the lower court notoriously has the advantage, denied to the Court of Appeal, of seeing and hearing the witnesses, including, most importantly, the defendant.
(viii) Furthermore, as Le Quesne, J.A. observed in Tilley v. Law Officers (10), “. . . the Jurats are holders of judicial office and are far more experienced in the affairs of law and legal procedure than the normal juryman in the United Kingdom.” A challenge to their verdict as unreasonable is especially difficult to make good.
16 Mr. Taylor’s case was comprehensively presented by Advocate Dunster (who did not represent the applicant below), under six headings:
(i) The learned Lieutenant Bailiff failed properly to direct the Jurats upon the ingredient of knowledge in the offence.
(ii) The learned Lieutenant Bailiff misdirected the Jurats in putting too much emphasis and importance on the evidence of Mr. Mann from whom Mr. Taylor claimed he received the money in exchange for furniture.
(iii) The learned Lieutenant Bailiff gave the impression to the Jurats that they might wish to prefer the evidence of Mr. Mann.
(iv) The learned Lieutenant Bailiff failed to correct the false and misleading impression given by the Crown that Mr. Taylor was involved in the production of the notes.
(v) The learned Lieutenant Bailiff failed to remind the Jurats of the explanation put forward by Mr. Taylor when directing them of the inference that could be drawn from circumstantial evidence—namely, that while the prosecution had put forward alternative and exclusive inferences that either (a) Mr. Taylor did receive the forged notes from Mr. Mann, who himself knew the notes were forged; or (b) Mr. Taylor did not receive the forged notes from Mr. Mann and was therefore lying. Mr. Taylor for his part had put forward an alternative innocent explanation that he had received the notes from Mr. Mann but without Mr. Mann necessarily knowing they were forged, which, Advocate Dunster contends, was not inherently incredible as an explanation.
(vi) The verdict was unreasonable.
17 We do not, we repeat, consider that any of these grounds involve a (pure) question of law within the meaning of the 1961 Law. Advocate Dunster candidly and realistically conceded that the learned Lieutenant Bailiff correctly gave standard JSB directions on all general matters such as burden and standard of proof, the weight to be attached to circumstantial evidence, and the relevance of Mr. Taylor’s admitted good character. Furthermore, he did not misrepresent the elements of the offence charged
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or omit any such element in his summing-up. We have accordingly treated this matter as an application for leave.
18 We now consider the grounds relied on one by one:
(i) The learned Lieutenant Bailiff made it abundantly clear that Mr. Taylor’s knowledge as to whether or not the notes were counterfeit was the key issue. He mentioned this on several occasions. We see no reason why he should have had to explain to the Jurats the meaning of an ordinary English word, or painstakingly to distinguish between knowledge, belief or suspicion.
(ii) and (iii) (which largely overlap). We consider that on a fair reading the learned Lieutenant Bailiff did not in the context of this case put too much emphasis on the evidence of Mr. Mann. Mr. Taylor’s case was that the notes had been passed to him by Mr. Mann; Mr. Mann’s evidence, we have already mentioned, was to the contrary effect. In such circumstances, the Jurats were properly directed to evaluate their respective testimony.
Nor do we consider that the learned Lieutenant Bailiff influenced the Jurats by betraying any strong personal view as to Mr. Mann’s credibility. The transcript shows that the Jurats were given the option of deciding whether or not to accept Mr. Mann’s evidence (“you will have to decide what you make of this evidence”) (Transcript 165B), and the learned Lieutenant Bailiff did draw their attention to contradictions in his evidence (Transcript 165D). We accept that the reference to the health problem of Mr. Mann’s daughter (Transcript 162C) as a possible explanation for the lack of focus of his recollection and the absence of an elaborate recitation of Mr. Mann’s changes of story were legitimate points for us to consider. But while we accept as a general proposition that “a summing up which is fundamentally unbalanced is not saved by the continued repetition of the phrase that it is a matter for the jury” (Gilbey v. R. (2), per Lloyd, L.J., approved by the Privy Council in Mears v. R. (5) ([1993] 1 W.L.R. at 822), there was, looking at the summing-up in the round, no such fundamental unbalance here. Notably, the learned Lieutenant Bailiff ended his summing-up by summarizing the defence case and reminding the Jurats that “it’s not for the defence to prove anything against Mr. Mann: the defendant does not have to prove the defendant’s innocence” (Transcript 172E-F).
(iv) This submission cannot survive the learned Lieutenant Bailiff’s unequivocal observation: “There is nothing to show the defendant was involved in the production of notes, which is a correct observation on the evidence” (Transcript 177E).
As to the alternative submission, developed orally by Advocate Dunster, that the Crown was wrong, even obliquely, to invite an adverse inference to be drawn from the fact that the original, as well as the counterfeit, notes
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were found in Mr. Taylor’s possession, this was not a matter on which the learned Lieutenant Bailiff commented one way or the other. In our view it was open to the Jurats to make of that (admitted) fact what they would. It was, as a fact, not inconsistent with guilt and, in the overall context of the case, capable of being probative of it.
(v) The hypothesis that Mr. Mann could have innocently passed on counterfeit notes was not closed off from the Jurats. Again, we draw attention to the fact that the learned Lieutenant Bailiff said expressly that Mr. Mann’s innocence did not establish Mr. Taylor’s guilt. However, it is not easy to see realistically how 20 counterfeit notes could have been paid in a single batch to Mr. Mann by some culpable third party and retained their identify as a batch when passed on to Mr. Taylor; or why the learned Lieutenant Bailiff should have raised the hypothesis of some dishonest employee of Mr. Mann’s tinkering with his till in an amateurish exercise of money-laundering, when there was no basis for any such hypothesis advanced by counsel or in evidence before the court.
(vi) First, the Jurats heard and saw Mr. Taylor. They heard and saw Mr. Mann. In so far as it was necessary to chose between them, they clearly preferred Mr. Mann’s evidence. By itself this would have discouraged any reliance by them on Mr. Taylor’s version. Secondly, the prosecution did not need to prove motive but it is the common experience of the criminal courts that those who seek to profit from dishonesty are not necessarily inspired by need. That there may be cases where an appellate court can find a verdict unreasonable is assumed by the 1961 Law. The present is, in our view, not within striking distance of being such a case.
19 At the conclusion of his summing-up, the learned Lieutenant Bailiff invited both counsel to indicate any matter of law or fact upon which he should have further addressed the Jurats. Both responded in the negative. Such a concession might not bind an appellant on an appeal but we consider that Advocate Mallett, who appeared below, made, as has Advocate Dunster before us, all the points that could properly be made on Mr. Taylor’s behalf. After a fair summing-up, the Jurats rejected the points. The last words of the learned Lieutenant Bailiff summing up were: “You are the judges of fact—it is your evaluation of the facts and judgment on the facts alone that matters.” In our view, there is no basis for concluding other than that the Jurats performed their function impeccably.
20 We accordingly refuse leave to appeal.
Sentence: The firearms convictions
21 We turn to the issue of sentence for the firearms convictions. The background is as follows. On June 11th, 2006 the police attended Mr. Taylor’s address in order to undertake a search in respect of counterfeit notes. Mr. Taylor volunteered that he had an unlicensed firearm in an
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upstairs cupboard. The police officer went upstairs and recovered the cashbox in which the weapon was located and the key to the cashbox. He returned downstairs and opened the cashbox and found the handgun located inside, together with six boxes of ammunition. The weapon was loaded with ammunition in a magazine.
22 The gun was examined and formally identified as a Mauser 6.35 mm. calibre automatic pistol. There were two 9-round magazines of the weapon. There were also 175 rounds of boxed 6.35 mm. ammunition which, together with a further 5 rounds in each of the two magazines, made a total of 1,855 rounds.
23 Mr. Taylor said in interview he had been in possession of the firearm since about 1985, having bought it from a friend. He accepted he previously held a firearms licence and was aware of the procedure for registration. He acknowledged that it was pure stupidity to have a loaded magazine and the pistol.
24 The Royal Court rightly observed: “Firearms offences are comparatively rarer in Guernsey than in England but are still viewed with proper seriousness.” It is accepted that there is no relevant Guernsey (or Jersey) jurisprudence. We therefore found it helpful to make use of an English guideline case which speaks of a general approach, especially since the Royal Court said that “the public concern expressed about firearms in Guernsey is on the same level as in England.”
25 In R. v. Avis (7), the court, presided over by Lord Bingham of Cornhill, C.J., said ([1998] 1 Cr. App. R. at 424) the sentencing judge should ask four questions:
(a) What sort of weapon was involved (i.e. genuine or imitation, loaded or unloaded)?
(b) What use, if any, was made of the firearm?
(c) With what intention, if any, did the defendant possess it?
(d) What was the defendant’s record relating to firearms offences or crimes of violence?
26 The other firearms cases to which we were referred were less helpful, since the sentences imposed depended so much upon their individual facts. We list them only for completeness: R. v. Horn (8); R. v. Lindsay (9); and R. v. Allen (6).
27 The facts relied on in support of the application for leave to appeal against sentence were: (i) Mr. Taylor did not use the firearm and had not touched it for a few years; (ii) he had no intent to use the weapon; (iii) he was hitherto a man of positive good character and there was nothing to suggest that he was prone to violence, let alone in matters in relation to
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firearms; (iv) he had volunteered to the police, when they attended his home address, that he had possession of a firearm; (v) he had locked the firearm in a tin and the key was housed separately; (vi) he had pleaded guilty at the first opportunity; and (vii) he was assessed as not likely to re-offend and had a young family, who in particular have been and continue to be adversely affected by his imprisonment.
28 On the Avis (7) criteria, Mr. Taylor scored highly on (b) and (d) (no use made—other than at a firearms club—and no record of violence) but less so on (a) (genuine weapon and loaded) and (c). In particular as to (c), like the Royal Court we share the concern expressed in the probation report on the firearms offences. We read the material parts of paras. 1–6 and 13–14 of the report dated June 7th, 2007:
“Possession of prohibited weapon; possession of prohibited ammunition
1. In relation to the firearms offences, Mr. Taylor tells me that he obtained a World War II gun from an acquaintance, who had found it, approximately 20 to 25 years ago, whilst renovating a house. He states that his acquaintance had had it valued and it was worth a ‘lot of money.’ He tells me that he was aware that legally he should have declared it and obtained a licence for it, as he had licences for other firearms and knew the law. However, he says he had been told that it would be worth more money if it was ‘kept off ticket.’ The defendant states that he kept the firearm in a locked box hidden in his wardrobe.
2. Mr. Taylor tells me that he was a member of a firearms club, where he had used his licensed weapons previously. He tells me that he also used the unlicensed gun at the club on occasion, although he believes staff presumed it was licensed because of his licensing on other firearms. He tells me he was able to purchase the ammunition for the gun at the club as he owned another licensed firearm which took the same calibre of ammunition.
3. The defendant states that he sold most of the guns approximately 10 years ago to a licensed gunsmith but that he could not sell him the World War II one because it was unlicensed. He tells me that he had no plans to use the gun in the future; however, he could not explain why he had not sold the ammunition to the gunsmith (which he confirms he could have done as it would have been licensed if sold with the licensed firearm of the same calibre).
4. The court will no doubt be concerned that the gun was found by officers with ammunition in the magazine. Mr. Taylor tells me that this was because he did not want the loose rounds (which he tells me come in racks) ‘rolling around’ the tin. He states that he feels particularly bad because the gun was stored in this home, where his
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young son was living, and did not consider at the time the potential risk to his son. He says the risk would have been reduced because the firearm and ammunition was in a locked box hidden in a wardrobe, however he accepts that he was fully aware that his method would not have officially been considered ‘safe’ storage.
5. Despite discussions with Mr. Taylor, I continue to struggle to understand his motive for keeping the firearm and the ammunition. His keeping them and statement that had the police not retrieved it in his arrest for the counterfeit money offences it ‘probably would have remained where it was,’ does not assimilate with his portrayal of himself as a ‘conventional’ member of society and family man. He does appear to be aware of why it is important to ensure that firearms and associated ammunition are licensed in terms of safety and monitoring.
6. Mr. Taylor informs me that his wife was not aware that he had the unlicensed firearms or ammunition (she was aware of the licensed guns). He also informs me that he is particularly concerned about the impact of his arrest and conviction, and potential sentencing, on his wife and young son. He notes concern about the anxiety that he may have caused for his wife in relation to both her reputation and within her employment . . .
Assessment of likelihood of re-offending and risk of harm to the public
13. Statistical assessment places Mr. Taylor in a population with a low likelihood of re-offending. He has many stable factors within his lifestyle and describes a relatively conventional lifestyle, which has influenced this assessment. I do, however, have concerns about the moral reasoning that Mr. Taylor has applied in relation to the firearms offences particularly, and the apparent ease with which Mr. Taylor decided not to licence them in the first place.
14. The firearms offences do suggest a significant risk of potential harm to the public. I remain unclear as to why Mr. Taylor chose to commit these offences and keep the gun and ammunition within his home for such a significant amount of time, particularly with his young son present. There would also be obvious concerns had Mr. Taylor sold the gun on in the future as this sale would also have been illegal and the defendant could not know what the motive of the buyer would be.”
29 Moreover, as the Royal Court expressly noted, Mr. Taylor had had the gun for more than 21 years and the ammunition (separately purchased) for several years (as recorded in the police interview on June 30th, 2006).
30 As the Royal Court said, “each case falls to be decided individually”
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and we agree. However, taking all these circumstances (favourable and unfavourable) into account, we for our part consider that, while an immediate custodial sentence was wholly appropriate, the sentence itself was manifestly excessive, if not to the degree contended for on Mr. Taylor’s behalf. We grant leave to appeal and on appeal will reduce the sentence on each count to one of nine months, concurrent with each other but consecutive to those on the counterfeit offences.
Orders accordingly.
2009
Law Report
None
Guernsey Law Reports 2007–08 GLR 207