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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Downs, R. v [2007] EWCA Crim 156 (25 January 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/156.html Cite as: [2007] EWCA Crim 156

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 25th January 2007

1. LORD JUSTICE MOSES: This is a highly unusual case. This applicant is aged 39, although, if he will forgive me for saying so, he looks much, much older. He and Patricia Cremin, aged 44, whose appeal against conviction we dismissed last week, were in possession of extremely dangerous armaments. They were found in possession of a Mach 11 submachine gun and ammunition in the flat where this applicant lived in Hackney and where, at the time, Patricia Cremin was also living, looking after this applicant. It was, perhaps, the last place in which one would expect to find an armoury, and yet there was an armoury there, not only, as we have said, this appalling submachine gun, but also live ammunition, including dum dum bullets.
2. In July 2005 police officers kept surveillance on that flat and observed the arrival of a motor cyclist with a rucksack containing the Mach 11 submachine gun. The gun was delivered to a co-accused, Lawrence McCarthy, who was also convicted of a series of offences. As a result of their observations, the police raided the flat and discovered about 1,000 rounds of ammunition, a bullet press, and, in particular, the Mach 11 submachine gun. This led to the applicant being convicted of an offence of conspiracy to possess a firearm with intent to endanger life. For that he was sent to prison for 11 years with a period on remand deducted. He had pleaded to a conspiracy to sell or transfer ammunition, for which he was sentenced to three years' imprisonment concurrent, and an offence of possessing a prohibited weapon, the submachine gun, for which he was sentenced to eight years' imprisonment concurrent.
3. Had matters rested there, despite the fact that this was a man with no previous convictions, in our judgment there could have been no quarrel with this sentence looked at as a totality. So dangerous was the weapon and so little other possible explanation for its possession other than to endanger life, that a sentence of 11 years would have been appropriate. But that is not the end of the story.
4. The judge took the view that it was necessary to sentence this man without waiting for counsel, who had conducted his defence before the jury. That may have been necessary, we do not know the full story, but it was, undoubtedly, unfortunate since both this applicant and his family will have trusted and communicated with counsel, Mr Gilbert, who appears before us today; Mr Gilbert undoubtedly had the best opportunity to paint a full picture of this man since he knew him best.
5. More seriously, the judge determined that it was unnecessary to obtain any report about him. We take the view that that was wrong. Not only was this man of no previous convictions, which made it odd that he should indulge in this very serious criminal activity, but there was much about this applicant which required full information.
6. It should be recalled that the applicant did not give evidence during his trial on conspiracy to possessing the weapons with intent to endanger life, so the judge was deprived of any opportunity of seeing him in the witness box. The judge clearly knew something about him, because he said in his sentencing remarks that he bore in mind what he described as his epilepsy and what he call his educational state, but in our judgment that failed adequately to reflect what is now revealed to us in a pre-appeal report, dated 17th October 2006. This is a helpful, full report, containing information that it was incumbent upon the judge to take into account before he sentenced.
7. This reveals that there were two serious major incidents in this applicant's life that affected his capacity to live like others in the community. He had a car accident when he was aged four and he was stabbed, causing serious head injuries, in 1990. He and his family will forgive us from detailing the effects of those incidents, but we hope that they appreciate it is necessary in order to explain our reasoning in relation to this application. Both of those incidents, says the author of the report, affected this applicant emotionally and practically. It has given rise to a history of bullying and ill-health. He has a speech impediment, slow thought processes and learning difficulties. He was bullied at school as a result and the stabbing incident has caused epilepsy requiring regular medication.
8. When interviewed, the author of the report describes the learning difficulty from which he suffers which meant that when asked to write his address he was unable to do so, writing his name was a struggle. He has better numeracy skills but they go little beyond basic calculations. He is very slow in thought and has difficulty in expressing himself.
9. All of these difficulties, and particularly when coupled with the epilepsy, give rise to a particularly serious impact upon him when in prison. This applicant, so the author records, has suffered increased epileptic seizures whilst in prison. He has difficulty in noticing early signs of those seizures because of what the author describes as an anxious state of mind, loneliness and a general feelings of helplessness. The likelihood, so the author says, of this applicant re-offending is low. There are fears as to the condition deteriorating.
10. We take the view that had the judge had a fuller information about the applicant's difficulties he would have been better placed to determine the appropriate level of sentence. The other co-defendant, to whom we have already referred, McCarthy, was sentenced to the same period. We have no material to suggest he suffered anything like the same difficulties. There was no defence of duress, but as Mr Gilbert identified, and as is confirmed in the report, this man was clearly vulnerable to pressure, or firm invitations to indulge in this serious criminal activity. He was, in short, an obvious target.
11. Little of this background and description of the difficulties under which this applicant labours find their way into the judge's sentencing remarks. We emphasise that a sentence of 11 years in the light of those convictions would be entirely appropriate, even in the case of a man of no previous convictions. Indeed, having regard to the nature of the ammunition and the gun, it could have even been higher.
12. But this is, as we said at the outset of the judgment, a wholly exceptional case. This is a man who labours under particular difficulties. It is in that context that the seriousness of the criminality has to be considered. Further, it must be borne in mind that the impact and effect on him of a long prison sentence will be far greater, and has already proved to be greater. That also is a factor which must be borne in mind now this case comes before us. The upshot is that we shall give leave, we shall allow the appeal and we shall quash the sentence of 11 years and substitute, for the reasons we have identified, a sentence of nine years' imprisonment from which the period of 331 days will be deducted. To that extent the appeal is allowed.