Jowitt, R. v

Factual and Procedural Background

The Attorney General referred a sentence imposed by Judge Hearn as unduly lenient after the Offender pleaded guilty to possession of a prohibited firearm (count 2) and possession of ammunition without a certificate (count 4). The Offender was sentenced to 3 years and 5 months' imprisonment for count 2 and 1 month concurrent for count 4.

On 28 August 2023 police observed the Offender and Co-defendant A in a hire car parked near a busy night venue. Two prohibited pistols, both loaded and in a state of readiness, were found associated with the vehicle: one under the vehicle (later linked to the Offender) and one in a bag on the front passenger seat (linked to Co-defendant A). The Offender ran on seeing police, was arrested shortly thereafter and gave largely "no comment" answers in interview, save for saying he ran because he had a small quantity of cannabis on him.

The Offender maintained that he had been unaware of the firearms until shortly before police approached, that he picked up one firearm and threw it under the car because he was on licence and panicked, and denied intent to use the weapon. Co-defendant A gave varying accounts across proceedings, including that firearms had been placed in his car by others and that he had been intimidated.

Procedurally the matter proceeded through three trials (April 2024, February 2025, November 2025) after terminatory rulings and appeal proceedings. The Offender pleaded guilty to possession of the firearm (SUR/1) and ammunition at stages prior to sentencing and was acquitted of possession with intent to endanger life. The Offender had been on licence from a prior lengthy sentence and was recalled on arrest; he had been remanded in custody throughout and had accrued substantial remand time that did not count toward any sentence because of the recall.

Legal Issues Presented

1. Whether the sentencing judge miscategorised the offence's harm level under the Firearms Guidelines (whether it was Category 1 rather than Category 2).
2. Whether the sentencing judge was justified in disapplying the statutory minimum 5-year custody term on the basis that the delay and other circumstances were "exceptional".

Arguments of the Parties

Attorney General's Arguments

• The offence involved loaded and ready firearms in public very close to a busy nightclub and posed a high risk of death, serious harm or serious disorder, such that harm should have been placed in Category 1.
• There was nothing inherently exceptional in delay caused by retrial after a guilty plea; the case and the delay were not sufficiently exceptional to justify disapplication of the 5-year statutory minimum.

Offender's Arguments

• The Offender's factual account and basis of plea (momentary possession, immediate disposal under the car, lack of knowledge of load/intent) justified the Recorder's factual findings and a Category 2 harm assessment for the Offender.
• The combination of the procedural history, remand time while on licence and the earlier judge's expressed intention to take delay into account amounted to exceptional circumstances justifying reduction below the 5-year minimum.

Table of Precedents Cited

Court's Reasoning and Analysis

The court reviewed the Recorder's detailed sentencing remarks and the factual record, including the Offender's basis of plea, the jury verdicts (acquittal of possession with intent to endanger life), and the procedural history of three trials with associated delay. On categorisation, the court examined the Recorder's assessment that the Offender's culpability was at the lower end of medium (Category B) and that harm for the Offender fell within Category 2 given the firearms were loaded, cocked and located proximate to a public club. The court concluded the Recorder had exercised appropriate fact-finding and did not miscategorise the Offender's offence.

On exceptional circumstances, the court acknowledged the Attorney General's submission that delay following retrial after a guilty plea is not per se exceptional. However, the court accepted that Judge Wright's earlier recorded decision (to reserve sentencing and to take delay into account) and the specific facts — the Offender's recall status, substantial remand time that did not count towards sentence, and the deliberate decision not to expedite sentencing by the earlier judge — meant the Recorder was entitled to find that the cumulative circumstances were exceptional in this case. The court treated the matter as fact-sensitive, emphasising deference to the Recorder's careful reasoning and noting that recognising exceptional circumstances in this case did not undermine the general principles governing the statutory minimum.

Holding and Implications

REFERENCE DISMISSED

Direct effect: The Recorder's sentence (3 years and 5 months for possession of the firearm and 1 month concurrent for possession of ammunition) is upheld. The court identified no broader change to sentencing law; it described the decision as fact-specific and stated it did not cast doubt on established principles governing application or disapplication of the 5-year statutory minimum.