Phillips, R. v

Factual and Procedural Background

On 31 July 2020, a complainant received a demand for payment of £2,500 related to construction work. The complainant employed a co-accused, while the appellant was subcontracted through the co-accused. Later that day, the co-accused, the appellant, and others visited a construction site armed with hammers and made threats but no physical blows occurred. This incident formed the basis of an affray charge to which the co-accused pleaded guilty.

Subsequently, a meeting was arranged at a remote location where the appellant, armed with a sawn-off shotgun, discharged the firearm twice, injuring an associate of the complainant. The injured party required hospital treatment including surgery for multiple wounds and a fractured leg bone.

The appellant was arrested and charged in September 2020, initially pleading not guilty. The prosecution delayed disclosure of telephone evidence, which was eventually provided in late February 2021. Shortly before trial, the appellant changed his pleas to guilty on two counts: causing grievous bodily harm with intent and possession of a firearm during the commission of an offence. The appellant was sentenced to 12 years and nine months imprisonment on both counts, to be served concurrently.

The appellant now appeals against sentence and seeks leave to appeal against conviction on the firearm possession count, citing a defect in the indictment particulars.

Legal Issues Presented

1. Whether the appellant’s guilty plea to possession of a firearm during the commission of an offence (count 4) was entered in error due to a defect in the indictment particulars.
2. Whether the court should exercise its powers under section 3A of the Criminal Appeal Act 1968 to correct the defect in the indictment by substituting the charged offence with a different firearm possession offence.
3. Whether the sentence of 12 years and nine months was manifestly excessive, considering the categorisation of the offence, the credit for guilty pleas, and personal mitigation.

Arguments of the Parties

Appellant's Arguments

• The guilty plea to count 4 was entered in error because the offence charged did not exist as formulated; the offence under section 18 of the Offences Against the Person Act 1861 is not listed in Schedule 1 to the Firearms Act 1968, rendering the count defective.
• The sentence was manifestly excessive as the offence should have been categorised lower (Category 2A rather than Category 1), resulting in a lower starting point for sentencing.
• The appellant should have received greater credit for the guilty pleas, which were entered shortly after receipt of expert evidence.
• The judge failed to adequately consider personal mitigation including good character and recent birth of the appellant’s child.

Crown's Arguments

• The plea to count 4 was flawed but the defect can be corrected under section 3A of the Criminal Appeal Act 1968 by substituting the charged offence with possession of a firearm during commission of an offence under section 20 of the Offences Against the Person Act 1861, a lesser included offence properly listed in Schedule 1.
• The appellant’s admitted facts under the section 18 offence also prove guilt under the corrected firearm offence.
• The sentence was appropriate given the high culpability, serious harm caused, use of a modified sawn-off shotgun, and the appellant’s leading role in the offence.
• The credit for guilty plea was correctly assessed at 15%, given the timing and circumstances of the plea.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified a technical defect in the indictment particulars for count 4, as the offence of possessing a firearm during commission of a section 18 offence is not recognised under the Firearms Act 1968 Schedule 1. The court considered the statutory power under section 3A of the Criminal Appeal Act 1968 to substitute the charged offence with a valid offence that the appellant’s facts admitted. The court accepted the Crown’s submission that the appellant’s plea to the section 18 offence necessarily admitted facts amounting to a section 20 offence, which is included in Schedule 1. The substitution was deemed pragmatic and reasonable, ensuring the indictment accurately reflected the firearm possession offence without increasing sentence severity.

Regarding sentence, the court upheld the sentencing judge’s categorisation of the offence as high culpability and greater harm, justifying a Category 1 classification with a starting point of 15 years before plea discount. The court rejected the appellant’s argument that the offence fell into a lower category, emphasizing the seriousness of the injuries and the aggravating factors including the use of a modified sawn-off shotgun and the appellant’s leading role. The 15% credit for the guilty plea was within the judge’s discretion given the timing and circumstances. The court also found that personal mitigation was properly considered but carried limited weight given the gravity of the offence.

Holding and Implications

The court allowed the appeal against conviction to the extent of correcting the defective count 4 indictment by substituting the charged offence with possession of a firearm during commission of an offence under section 20 of the Offences Against the Person Act 1861, pursuant to section 3A of the Criminal Appeal Act 1968.

The court dismissed the appeal against sentence, finding the sentence of 12 years and nine months to be within the appropriate range for the offence and circumstances. The direct effect is that the appellant’s conviction record will accurately reflect the corrected firearm offence without increasing the sentence. No new legal precedent was established; the decision clarifies the application of statutory correction powers in cases of defective indictments and confirms the exercise of sentencing discretion in serious firearm-related offences.