Bassaragh, R. v

Factual and Procedural Background

This case concerns the appeal by the Appellant against a sentence of 5 years' imprisonment imposed for possession of a prohibited firearm. The minimum sentence provisions of section 311 and Schedule 20 of the Sentencing Code mandated a minimum custodial term of 5 years unless exceptional circumstances justified a lesser sentence. The Appellant was sentenced on 15 June 2023 by Ms Recorder Davies in the Crown Court at Woolwich. Subsequently, the Appellant sought an extension of time and leave to appeal, relying on fresh evidence that was not available at the time of sentencing, namely that she was pregnant at the time of sentencing but unaware of this fact. The Court admitted this new evidence and treated the hearing as a substantive appeal. Upon review, the Court found exceptional circumstances justified a reduced and suspended sentence, quashing the original custodial sentence and substituting a 2-year imprisonment term suspended for 2 years.

Legal Issues Presented

1. Whether the existence of exceptional circumstances relating to the Appellant or her offence justified the court departing from the statutory minimum custodial sentence prescribed by section 311 and Schedule 20 of the Sentencing Code.
2. Whether the fresh evidence of the Appellant’s pregnancy and its attendant risks constituted such exceptional circumstances.
3. The appropriate sentencing approach and range if exceptional circumstances are found.
4. Whether suspending the custodial sentence was appropriate in light of the Appellant’s individual circumstances and the nature of the offence.

Arguments of the Parties

Appellant's Arguments

• Permission to rely on fresh evidence was sought and granted, namely the Appellant’s pregnancy, unknown at the time of sentencing.
• The pregnancy and its specific medical complications created exceptional circumstances justifying a departure from the statutory minimum sentence.
• The Appellant’s personal mitigation included her good character, cooperation with police, guilty plea, vulnerability, and strong prospects of rehabilitation.
• Custody would be particularly onerous and harmful due to heightened health risks and mental health vulnerabilities.
• Suspension of sentence was appropriate given the nature of the offence and the Appellant’s circumstances.

Respondent's Arguments

• The Crown adopted a neutral stance on the question of exceptional circumstances given the pregnancy and its consequences, making no submissions opposing the application or appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by acknowledging the mandatory minimum sentence provisions requiring a custodial term of at least 5 years for possession of a prohibited firearm unless exceptional circumstances existed. It then considered the fresh evidence of the Appellant’s pregnancy at the time of sentencing, which was unknown to the sentencing court. The Court recognized that pregnancy alone is not automatically exceptional but noted the particular medical risks and vulnerabilities specific to the Appellant, including a history of traumatic pregnancy loss, antepartum bleeding, pre-eclampsia, and mental health concerns, which heightened the risks and trauma of imprisonment.

The Court applied the Sentencing Guideline's criteria for exceptional circumstances, emphasizing that such circumstances must be truly exceptional and that the imposition of the minimum sentence would otherwise be arbitrary and disproportionate. It rejected reliance on outdated case law in favor of the Guideline's current principles.

Considering the Appellant’s good character, cooperation, guilty plea, vulnerability, and strong rehabilitation prospects, alongside the pregnancy and its attendant risks, the Court concluded that the combined circumstances justified departing from the statutory minimum sentence. It identified an appropriate sentence unconstrained by the minimum as 2 years’ custody after mitigation and plea credit.

Given the nature of the offence and the exceptional personal circumstances, the Court exercised its discretion to suspend the custodial sentence, a course rarely taken for this type of offence but justified here to avoid disproportionate punishment and to reflect the Appellant’s rehabilitation prospects and maternal responsibilities.

Holding and Implications

The Court ALLOWED THE APPEAL, quashing the original 5-year custodial sentence and substituting a sentence of 2 years’ imprisonment suspended for 2 years. The concurrent 4-month sentence for possession of ammunition was also quashed and replaced with a 4-month sentence suspended for 2 years. The statutory surcharge remains applicable, and a rehabilitation activity requirement was imposed.

The direct effect is to significantly reduce the Appellant’s custodial punishment while maintaining the seriousness of the offence. The Court’s decision does not establish a broad precedent that pregnancy alone constitutes exceptional circumstances but illustrates that pregnancy combined with significant personal mitigation and heightened medical risks may justify departure from statutory minimum sentences. The ruling underscores the importance of individualized sentencing assessments within the statutory framework and the careful balancing of deterrence, punishment, and rehabilitation.