Her Majesty’s Advocate v. Andrew Steven also known as Walton [2017] HCJAC7

Crown appeal against sentence:- On 7 October 2016, at Glasgow High Court, at the close of the Crown case, the respondent pled guilty to 92 charges relating to contraventions of the Firearms Act 1968 and a charge of contravening section 28(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (charge 1). The firearms charges were split into various groups:- (a) 28 contraventions of section 1(1)(a) of the 1968 Act, namely, having in his possession a firearm; (b) 11 contraventions of section 1(1)(b) of the 1968 Act, namely, having in his possession ammunition to which the 1968 Act applied; (c) 21 contraventions of section 4(3) of the 1968 Act, namely, converting a particular deactivated firearm into an active one; (d) 2 contraventions of section 5(1)(a) of the 1968 Act, namely, having possession of parts of a prohibited weapon, including a NATO calibre assault rifle and a component of a STEN submachine gun; (e) 2 contraventions of section 5(1)(ab) of the 1968 Act, namely, being in possession of prohibited weapons, specifically a bolt carrier from an Armalite assault rifle; (f) 20 contraventions of section 5(1)(aba) of the 1968 Act, namely, being in possession of prohibited weapons; (g) two contraventions of section 5(1A)(g) of the 1968 Act, namely, being in possession of prohibited ammunition; (h) two contraventions of section 19 of the 1968 Act, namely, having a firearm, together with ammunition for use with that firearm, aggravated by a connection with serious, organised crime; and (i) a contravention of section 5(2A)(a), (b), (c) and (d) of the 1968 Act, namely, of manufacturing weapons by reactivating revolvers, a pistol and rifle, selling revolvers, acquiring for sale and transfer prohibited weapons, including pistols, parts of firearms and an assault rifle and purchasing and having in his possession for sale and transfer prohibited ammunition, aggravated by a connection with serious and organized crime. On 3 November 2016 the trial judge sentenced the respondent to 9 years imprisonment on charge 1, 4½ years for each charge in group (a), 4 years for each charge in group (b), 6 years for each charge in group (c), 7 years for each charge in group (d), 6 years for each charge in group (e), 8 years for each charge in group (f), 6 years for each charge in group (g), 6 years for each charge in group (h), and 10 years for the charge in group (i). All the periods of imprisonment were to be served concurrently with each other resulting in the total period of imprisonment being 10 years. It was submitted on behalf of the Crown that the sentences imposed did not adequately reflect the gravity of the offences, or take sufficient account of the scale of the criminal enterprise, or the period of time over which it operated and failed to satisfy the need for retribution and deterrence. It was submitted that undue weight was placed upon the respondent’s low risk of general offending and insufficient emphasis was placed on the part played by the respondent in the criminal enterprise. The co-accused who had been involved in small scale participation received sentences which did not reflect the different levels of involvement of the respondent in that Kimmins, in respect of a single charge, was sentenced to 8 years imprisonment, McMullen, to 6 years imprisonment for 6 charges and Stuart, 7 years in respect of 2 charges. On behalf of the respondent it had been submitted that he was 53 years of age at the time of the trial and over the years, following his retiral from the army, he had acquired a number of decommissioned firearms and reactivated and sold them. It was submitted on behalf of the respondent that there had been little financial benefit to the respondent and that he suffered from a number of health conditions and it was unlikely that he would survive a lengthy sentence. The CJSWR that had been obtained considered that he presented a low risk of reoffending and that during the course of the trial he had attempted suicide. Here the court refused the appeal albeit it considered that the sentence was lenient. The court referred to HMA v Bell 1995 SCCR 244 and the advantage the trial judge has in hearing all of the evidence and for a sentence to be unduly lenient the sentence would need to fall outwith the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate.