REGINA v Avis & Ors

Factual and Procedural Background

This opinion concerns six appellants and applicants who were convicted of various offences under the Firearms Act 1968 as amended. Their appeals were heard together to review the appropriate level of sentencing for firearms offences, prompted by recent criticisms of sentencing inadequacies, legislative increases in maximum penalties, and statistical increases in certain firearms convictions. The offences involve unlawful possession, use, and trading of firearms and imitation firearms, with varying degrees of seriousness and intent.

The court discusses the nature and gravity of firearms offences, the legislative framework including amendments raising maximum sentences, and the public danger posed by firearms offences. The opinion then reviews the circumstances and sentences of each appellant and applicant, their respective appeals against sentence, and the court’s decisions on those appeals.

Legal Issues Presented

1. What is the appropriate level of sentence for offences under the Firearms Act 1968, particularly in light of legislative changes and recent case law?
2. How should courts assess the seriousness of firearms offences considering factors such as the type of weapon, use made of it, intent, and offender’s record?
3. Whether the sentences imposed on the appellants and applicants were manifestly excessive or appropriate given the facts and circumstances of each case?

Arguments of the Parties

Appellant Avis's Arguments

• The victim (his sister) did not suffer psychological distress and reacted angrily rather than fearfully after the incident.
• There was no history of firearm use in Avis’s prior violent offences, indicating this was not a professional criminal firearm offence.
• The sentence of 8 years was more appropriate for the more serious offence of possessing a firearm with intent to endanger life, of which he was acquitted; thus the sentence under section 16A should be less.

Appellant Barton's Arguments

• The momentary fear experienced by the victims upon discovering the firearm was a replica reduced the gravity of the offence.
• The overall sentence was excessive, particularly the consecutive sentence for the firearm offence.

Appellant Thomas's Arguments

• The pump action shotguns involved were old and personally modified, not obtained from criminal sources.
• Thomas’s advanced age and extensive testimonials regarding his charitable work should be considered exceptional mitigating circumstances.
• The trial judge should consider the realistic prospects of release and the personal mitigation presented.

Applicant Torrington's Arguments

• The sentence was manifestly excessive given his previous good character, plea of guilty, and clear remorse.
• The offence was committed in a context of protecting his step-son from further attack.
• The weapons, though capable of lethal injury, were less dangerous types (air rifles) and the discharge was accidental.
• His depressive illness would be severely affected by imprisonment.

Applicant Marquez's Arguments

• The purpose for carrying the firearms and imitation firearm was unknown, suggesting the offence was at the lower end of the scale.
• No ammunition was found, indicating no intention to fire the weapons.
• His previous good character and role as principal carer for his child should mitigate sentence.
• The sentences imposed were manifestly excessive when compared to relevant authorities.

Applicant Goldsmith's Arguments

• The judge’s increase of sentence from 10 to 15 years for public protection was excessive for a single attempted robbery involving a starting pistol and a guilty plea.
• The 5-year increase was unnecessary and manifestly excessive.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the serious public danger posed by firearms offences, noting the legislative trend to increase maximum penalties and the rising prevalence of such offences. It emphasised that sentencing must reflect the gravity of the offence, the type of weapon involved, the use made of it, the offender’s intent, and their criminal record, while avoiding rigid guidelines that could produce injustice.

In reviewing the individual appeals, the court carefully considered the facts of each case, including the nature of the weapon (real or imitation, loaded or unloaded), the circumstances of use or possession, and the offender’s background and mitigation. The court balanced these factors against the need for deterrence and public protection.

For the appellant referred to as Avis, the court found that although the original sentence was above the prevailing level at the time, the seriousness of the offence warranted a substantial custodial sentence and reduced it to six years. For Barton, the court held that the sentence was not excessive given the terror caused by the imitation firearm. Thomas’s appeal was dismissed as the court found the sentence properly reflected the gravity of his deliberate and calculated firearms dealing despite his personal mitigation.

Torrington’s application for leave to appeal was refused, with the court emphasizing the aggravating factor of bringing loaded weapons to a public place and their accidental discharge. Marquez’s appeal was rejected due to the serious nature of possessing a real firearm with intent, supported by the jury’s verdict and the circumstances of possession. Goldsmith’s sentence was upheld, with the court agreeing that public protection justified the lengthy custodial term given his persistent offending and attitude to crime.

Holding and Implications

The court’s final decisions were as follows:

• Appellant Avis: Appeal allowed in part; sentence reduced from 8 to 6 years imprisonment.
• Appellant Barton: Appeal dismissed; sentence upheld.
• Appellant Thomas: Appeal dismissed; sentence upheld.
• Applicant Torrington: Application for leave to appeal refused; sentence upheld.
• Applicant Marquez: Application for leave to appeal refused; sentence upheld.
• Applicant Goldsmith: Application for leave to appeal refused; sentence upheld.

The court reaffirmed the necessity of serious custodial sentences for firearms offences, reflecting the increasing prevalence and public danger of such crimes. It emphasized that while mitigation and individual circumstances must be considered, the courts must not be inhibited from imposing sentences that deter and protect the public. No new precedent was established beyond reinforcing existing sentencing principles and legislative intent.