Sean Barclay v. Her Majesty’s Advocate [2019] HCJAC 41

Note of appeal against sentence:- On 29 March 2019, at a continued preliminary hearing at Glasgow High Court, the appellant pled guilty to two charges:- (1) theft by breaking into property occupied by the British Army at the Army Cadet Building in Newport on Tay and stealing various items; and (2) a contravention of section 5(1)(a) of the Firearms Act 1968 as amended. In relation to the first charge a sentence of 3 years’ imprisonment was imposed discounted from 4 years due to the plea of guilty and a consecutive period of 5 years’ imprisonment was imposed in relation to the second charge. The appellant appealed against his sentence on three grounds:- (1) that the headline sentence selected in relation to the first charge was excessive; (2) in relation to the second charge that the sentencing judge erred in deciding that there were no exceptional circumstances present to allow a sentence below the minimum sentence of 5 years to be imposed; and (3) that the cumulative effect of the sentences imposed resulted in an excessive sentence. The circumstances were that during the commission of charge 1 the appellant obtained entry to a lock fast cabinet within which were stored five drill purpose rifles of which he stole three along with five spring loaded magazines, five gun slings, 12 drill purpose rounds, a carrier bag, a ruck sack and some money. With the exception of the money all of the other stolen items were discovered on 14 July 2018 in a wooded area near to Newport on Tay. The rifles were derived from original SA80 assault rifles but had been modified in a number of ways to prevent them from firing bulleted cartridges, however, some components like the gas ports, the bolt carriers and the upper and lower receivers could be used in original SA80 automatic assault rifles. Charge 2 related to weapons subject to general prohibition including the possession of relevant component parts in relation to a prohibited weapon, namely, parts which were capable of being used for a firearm which was so designed or adapted that two or more missiles could be successively discharged without repeated pressure on the trigger, namely, for an automatic weapon. Section 51A(1)(a)(i) provides that where an individual is convicted of inter alia section 5(1)(a) of the Act then the court must impose a minimum sentence of 5 years’ imprisonment if the offender is aged 21 or over unless the court is satisfied that there are exceptional circumstances relating to the offence or to the offender which justify a departure from the minimum sentence (section 51A(2)). It was submitted on behalf of the appellant that the drill purpose rifles were not capable of firing live rounds and for the relevant component parts to be of use the rifles would need to be dismantled and the parts then used in a genuine assault rifle and, as such, the breach of section 5(1)(a) ought to be viewed as a technical breach. The appellant when interviewed stated that the dummy rifles were incapable of firing ammunition and the nature of the items only came to light when they were examined by firearms experts and it was submitted that that was a significant feature and could have been described as a single striking feature which could be exceptional. It was submitted that the trial judge erred and ought to have concluded that exceptional circumstances existed. It was further submitted on behalf of the appellant that the sentence selected in relation to charge 1 was excessive given the appellant’s record of previous offending which was largely for non-analogous offending. It was further submitted that at the time of the commission of the offences he was a drug addict and it was his intention to sell the stolen items to fund his chronic drug habit. In relation to the cumulative effect of the sentences it was submitted that the overall effect of these was excessive given the commission of the second charge arose out of the circumstances of the first and a lesser sentence would be appropriate. Here the court considered that the sentence imposed in relation to charge 1 could not be described as excessive. The court pointed to the well planned nature of the theft, the nature of the goods stolen (the rifles, in particular, would be sought after) together with the lengthy schedule of previous convictions. In relation to the firearms charge the court considered that the sentencing judge could not be criticised for holding that the exceptional circumstances test had not been met. In particular, the court pointed to the fact that Parliament has determined that the definition of firearm as used in the Firearms Act includes a relevant component part in relation to a prohibited weapon and parts of the drill purpose rifles in the present case were capable of being removed and being used as parts of genuine automatic assault rifles which the court considered a serious and unusual breach of the prohibition. The court also had regard to the appellant’s lengthy schedule of previous convictions. The court reiterated that it will only be in ‘rare’ cases that exceptional circumstances are made out. In addition, the court stated that it will only be in cases where the sentencing judge has clearly erred in failing to identify exceptional circumstances when they do exist that the court will interfere. In relation to the final ground of appeal the court considered that the overall sentence imposed by the sentencing judge was excessive and the court quashed the sentence imposed in relation to charge 1 and substituted a sentence of 24 months imprisonment, discounted from 32 months to reflect the plea of guilty, to run consecutively to the sentence imposed on charge 2.