Allan John Turnbull v. Her Majesty’s Advocate [2017] HCJAC 85

Note of appeal against sentence:- On 24 May 2017, at a trial diet at Dundee Sheriff Court, the appellant pled guilty on indictment to a contravention of section 5(1A)(a) of the Firearms Act 1968, namely, being in possession of a stun gun disguised as a torch (charge 4). The appellant had pled guilty at an earlier first diet to a charge relating to the production of cannabis (charge 5), albeit the charges were unconnected. The Crown accepted ‘not guilty’ pleas to the remaining three charges on the indictment. Following the obtaining of a Criminal Justice Social Work Report the sheriff sentenced the appellant to 5 years imprisonment on charge (4) and 5 months imprisonment in relation to charge (5) to run concurrently with each from 24 May 2017. The appellant appealed against his sentence on the basis that the sheriff erred in holding that exceptional circumstances were not present to allow a departure from the minimum sentence of 5 years imprisonment required for such charges under Section 51A of the 1968 Act, as amended. The circumstances of the offence were that the appellant had purchased a disguised stun gun on the internet out of curiosity and had deliberately acquired the item knowing it to be such. The appellant had tried it on himself but had not otherwise used it and had stored it in a bag in his bedroom where it had remained for around two years before being seized by the police. The appellant knew that it was unlawful to possess the stun gun, whether or not it was taken into a public place. It was submitted on behalf of the appellant that he had a very limited record of previous convictions with no analogous convictions and that the CJSWR assessed him as being low to medium risk of reoffending and his mother had long-term health problems and relied upon him for assistance. It was submitted that whilst it was recognised that the policy and intention of Parliament was to protect the public by requiring a minimum sentence of imprisonment for possession of handguns, in the circumstances of the present case there were no such concerns for public safety and the sentence selected by the sheriff was arbitrary and disproportionate. Reference was made to the English case of R v Jake Simon McCleary [2014] EWCA Crim 302 where exceptional circumstances were found to be established in a case with circumstances said to be similar to the present case. Here the court refused the appeal. The court considered that the circumstances of the case fell within the type of criminal behaviour which Parliament had intentionally struck at with the minimum sentence policy. There is always a danger in such cases of the prohibited item falling into the hands of others who may risk wider harm. It was noted by the court that the stun gun was charged, operational and had been used, all factors which could distinguish the present case from the English case of McCleary. The court observed that a lack of aggravating features does not amount to exceptional circumstances and it is the presence of mitigating circumstances relating to the offence or the offender which permit the sentencer to hold that there are exceptional circumstances present. The court considered that there was nothing placed before the sentencing sheriff that entitled him to conclude that exceptional circumstances had been established and no criticism could be made of his decision.