Wharmby, R. v

Factual and Procedural Background

This case concerns criminal proceedings involving three co-defendant offenders who were sentenced for conspiracy to possess a firearm and related drug offences. The offences arose from events in April 2020 involving the purchase of a loaded Glock firearm previously used in shootings in the northwest of England. The firearm was intended for use to endanger life or cause fear of violence. The offenders used encrypted communication devices to conceal their criminal activities.

On 30 March 2023, a judge sentenced the three offenders to various terms of imprisonment for conspiracy to possess a firearm with intent to endanger life or cause fear of violence and for drug offences. Subsequently, the Solicitor General applied for leave to refer these sentences under section 36 of the Criminal Justice Act 1988 on the basis that they were unduly lenient, which was granted.

The Court of Appeal considered the appropriateness of the sentences, the categorisation of harm and culpability under the Sentencing Council Guideline for Firearms Offences, and the application of credit for guilty pleas. The court also made an order restricting reporting to avoid prejudice to related proceedings involving a co-defendant.

Legal Issues Presented

1. Whether the sentences imposed on the three offenders for the firearm offences were unduly lenient.
2. Whether the sentencing judge miscategorised the firearm conspiracies under the Sentencing Council Guideline for Firearms Offences.
3. Whether the sentencing judge erred in failing to impose consecutive sentences for the firearm and drug offences, particularly for the offender who pleaded guilty.
4. Whether the sentencing judge incorrectly applied credit for guilty plea, especially concerning the timing and unequivocal nature of the guilty plea.

Arguments of the Parties

Solicitor General's Arguments

• The firearm offences involved two conspiracies with varying levels of intent, but all offenders played important roles warranting higher sentences.
• The judge miscategorised the firearm offences, particularly for two offenders, who should have been placed in a higher culpability category (B2) rather than the category applied (B3).
• For two offenders, the sentences were below the guideline starting points for their culpability level.
• For the offender who pleaded guilty, consecutive sentences for firearm and drug offences were warranted, but the judge imposed concurrent sentences, resulting in an inadequate overall sentence.
• The judge gave excessive credit for guilty plea to this offender, beyond what was appropriate given the timing and nature of the plea.

Offenders' Arguments

• The sentencing judge was experienced and had a thorough understanding of the evidence and circumstances, justifying the categorisation of offences and sentences imposed.
• The judge was entitled to categorise harm as medium (category 3) rather than high (category 2) due to uncertainties about the offenders' intentions and the nature of the offences.
• The offender who pleaded guilty was entitled to full credit given the procedural history and timing of the plea, with no undue delay or exacerbation of costs.
• Mitigating factors such as personal circumstances, time spent in custody, and behaviour in custody justified the sentences and credit given.
• For one offender, the firearm possession was a one-off situation with limited involvement, justifying concurrent sentences rather than consecutive ones.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by recognizing the high threshold for appellate interference in sentencing appeals, emphasizing that leniency alone does not justify intervention unless the sentence is unduly lenient.

Regarding the offender who pleaded guilty, the court accepted the judge's categorisation of the firearm offence as medium harm (category 3) but found that the judge erred in imposing concurrent sentences for the firearm and drug offences. The court held that consecutive sentences were appropriate because the firearm offence was distinct and not intrinsic to the drug offences, consistent with the Sentencing Council Guideline on Totality.

The court also found that the full one-third credit for guilty plea was excessive. Applying the principles from the relevant guilty plea guideline and precedent, the court determined that the offender did not unequivocally indicate a guilty plea at the first stage of proceedings and thus was only entitled to a maximum of 25% credit.

For the other two offenders, the court carefully considered the categorisation of harm and culpability. Although the judge's remarks were somewhat inconsistent regarding the intention to endanger life, the court concluded that the judge did not find beyond reasonable doubt that such intention existed, justifying the placement in category 3 harm. However, the court found that the sentences imposed were unduly lenient given the multiple culpability factors, aggravating features (such as use of a prohibited firearm and encrypted communications), and the seriousness of the offences.

The court thus determined that the sentences for these offenders should be significantly increased to reflect the severity of their conduct and uphold public confidence in sentencing standards.

Holding and Implications

The court ALLOWED the references against the sentences imposed on all three offenders.

For the offender who pleaded guilty, the court quashed the sentences for conspiracy to possess a firearm and possession of a Class A drug with intent and substituted consecutive custodial sentences of 32 months each, resulting in an overall sentence of 64 months' imprisonment. This reflects a more accurate assessment of totality and culpability. The offender had already served the relevant time in custody, so no further action was required regarding surrender.

For the other two offenders, the court quashed their sentences and substituted increased sentences of 8 years and 8½ years' imprisonment respectively. Both will serve two-thirds of their sentences in custody, with time spent on remand counting towards this period, and will be subject to licence conditions upon release, including recall to prison if they reoffend. Directions for their surrender were to be made accordingly.

The decision directly affects the parties by increasing the custodial sentences to better reflect the seriousness of the offences and the offenders' roles. No new legal precedent was established beyond the application of existing sentencing principles and guidelines.