Henry Morton v. Her Majesty’s Advocate [2017] HCJAC 21

Note of appeal against sentence:- On 29 June 2016, at Edinburgh High Court, the appellant pled guilty to:- (1) possession of a firearm, namely, two stun guns disguised as mobile telephones, contrary to section 5(1A)(a) of the Firearms Act 1968; and (2) possession of firearms without being the holder of a certificate contrary to section 1(1)(a) of the Firearms Act 1968. Following a proof in mitigation at which the appellant, his former partner, two psychologists and a forensic firearms examiner all gave evidence, the presiding judge imposed a sentence of 5 years imprisonment. A concurrent sentence of 21 months imprisonment was imposed on the other charge. Section 51A of the Firearms Act requires the court to impose a minimum sentence of 5 years’ imprisonment for a contravention of section 5(1A)(a) of the 1968 Act “unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it in not doing so”. The appellant appealed against his sentence on the ground that the judge had erred in holding that exceptional circumstances did not exist. The circumstances were that on 16 September 2014 the appellant returned from holiday in Bulgaria to Glasgow Airport, where he was found to have two stun guns disguised as mobile telephones within his luggage. Whilst on holiday he posted a message on Facebook stating:- “You fuck with me you get tasered son ... and that’s the truth!” he also posted that he was going to try and sell them for £300 on his return home. He also sent a message which stated:- “Watch this I will end up in a Bulgaria jail”. On his return to Scotland he was interviewed during which he denied knowing that the items were stun guns. In giving evidence during the proof in mitigation the appellant stated he had consumed considerable amounts of alcohol during his holiday and could not recall his posts and did not intend to sell them. He stated that it was only when he saw a sign at Glasgow Airport saying that such items were illegal that he realised they could not be brought into this country and he became frightened and lied to the police about what he thought the items were during his interview. Evidence was led at the proof in relation to his personal circumstances, in particular, his extremely low cognitive functioning which included an inability to fully consider the consequences of his actions. It was submitted here on behalf of the appellant that the judge had been wrong to hold that exceptional circumstances were not present. Reference was made to four key questions as posed in the case of R v Avis & Others [1998] 2 Cr App R (S) 178, namely:- (1) What sort of weapon was involved? (2) What use had been made of the firearm? (3) With what intention (if any) did the defendant possess or use the firearm? (4) What was the defendant’s record? It was submitted that the judge had been wrong to disregard as irrelevant the fact that the weapons in question did not fire bullets. Further, insufficient weight was given to the appellant’s low risk assessment, his personal circumstances, in particular the content of the psychological reports, the fact that he provided care to his children with special needs and the judge was wrong to have placed any weight on the appellant’s previous conviction for an offence involving an air gun. Here the court refused the appeal. The court considered that the circumstances of the offence were such that they fell within the type of offending which Parliament had legislated for in enacting the minimum sentence of 5 years imprisonment. In particular, the court pointed to the fact that the two guns were imported into Scotland via Glasgow Airport, they were concealed, they were disguised as stun guns, they were in working order and could cause harm. In addition, from the messages sent by the appellant it was clear that his intention was to sell them and therefore put them beyond his control. The court considered that whilst the appellant may be of low intellect and have a tendency to act impulsively that did not prevent him from knowing that what he was doing was illegal.