No:
200805279/A8
Neutral Citation Number:
[2009] EWCA Crim 456
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 26 February 2009
B e f o r e
:
LORD JUSTICE HOOPER
MR JUSTICE JACK
MRS JUSTICE SHARP DBE
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R E G I N A
v
MOHAMMED KANDEH JALLOH
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Miss H Rawat
appeared on behalf of the
Appellant
Mr G Fitzpatrick
appeared on behalf of the
Crown
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J U D G M E N T
1.
Mr Justice Jack: On 4 September 2008 at the Crown Court at Harrow the appellant, Mohammed Jalloh, was convicted of possession of a shortened shotgun contrary to
sections 1
and
4(4)
of the
Firearms Act 1968
. He also then pleaded on a separate indictment to possession of cocaine and heroin with intent to supply. He was sentenced to imprisonment for five years on the firearms offence and to three years on the two drug offences, concurrently with each other but consecutive to the firearms sentence, so giving a total of eight years.
2.
He appeals against sentence by leave of the single judge.
3.
The offences arose from a search on 26 September 2007 at an address in north London pursuant to a warrant. It was not the appellant's house but that of a female acquaintance. He had spent the night there and he let the police into the house. In an upstairs cupboard the police found a double-barrelled 12 bore Purdey shotgun. Its barrels had been shortened, the fore-piece was missing and the firing mechanism for the right barrel was defective. So it was a Purdey which had come down in the world. No ammunition was found. In the appellant's jeans were, first, a package containing 137 milligrammes of heroin, two packages containing 158 and 157 milligrammes of cocaine, and 12 wraps of cocaine totalling 2.25 grammes.
4.
The prosecution case against the appellant at the trial featured at its forefront that before the gun was found the appellant referred to it and said that it was his. At the trial he denied that he had said that. He had given a no comment interview.
5.
The householder was also charged with the offence relating to the gun, but she was acquitted.
6.
His pleas to the drug offences were on the basis that he was holding the cocaine and heroin for another person and had been doing so for less than 24 hours and would have returned them on the day of the search and that the drugs were not held for commercial supply. We have enquired what was meant by the last part of that basis of plea, "not held for commercial supply". It has been explained to us that it simply meant that the appellant was not getting any benefit from holding them. It was not suggested that the drugs were not ultimately going to be supplied commercially. Given the number of wraps of cocaine, that would have been most unlikely.
7.
When he passed sentence the judge stated that the appellant had put the householder at risk in relation to the gun. He did not otherwise enlarge on his reasons for the five year sentence. In relation to the drugs he said that, looking at the totality of the weight, three years was appropriate.
8.
The appellant is aged 27. He had been dealt with by the courts on eight previous occasions and had received three custodial sentences for burglary and receiving, including three years for burglary imposed on 8 April 2003. He had no prior convictions for firearms or violent offences, nor for drug offences, save for a fine for possession of cannabis.
9.
The factors which the court should consider in relation to sentence for firearms offences are set out in
Avis
[1998] 2 Cr App R(S) 178. Taking them in turn, first, this was a genuine weapon and in its sawn-off state it was a criminal's weapon. No ammunition was found with it. Second, there was no information as to any use having been made of it. Third, the function of the weapon could only be criminal. There is no information as to any particular future criminal purpose. The finding of the weapon, however, in conjunction with a finding of drugs shows the world that the appellant was moving in. We have already referred to his record. The maximum sentence for the aggravated offence as defined in
section 4(4)
is seven years.
10.
We have considered the following cases. In
Gourley
[1999] 2 Cr App R(S) 148 a sentence of four years was reduced to three where there was a plea of guilty to possessing a sawn-off shotgun. Cartridges had also been found. The offender said he had it for the protection of his family.
11.
In
Herbert
[2001] 1 Cr App R(S) 21 a sentence of four years was upheld in a case where the offender had pleaded guilty, but he had put forward a dishonest account of how he had come by the gun which had been disbelieved by the judge following the hearing of evidence. In those circumstances, his mitigation on account of his plea was greatly reduced. The case concerned a sawn-off shotgun and cartridges.
12.
In
O'Shea
[2000] 2 Cr App R(S) 412 it was said that a sentence of 30 months could not possibly be said to be excessive. We find that case of no help.
13.
Beaumont
[2004] 1 Cr App R(S) 64
involved a sawn-off shotgun and cartridges which the offender said he had purchased as collector's items. There was no evidence of criminal intent. The sentence of three years following a plea was reduced to two. Again, the case is of little assistance.
14.
We have concluded, having in mind the considerations set out in
Avis
, that the sentence of five years here was somewhat too high. We consider that four years would fit the circumstances before us. As to the drug offences, it is not said that the sentence of three years was in itself excessive. What is said is that, if one looks at the totality, three years is too high. We do not accept that submission. It seems to us that the total of seven years as it will now be is appropriate for these offences. The appeal will be allowed in respect of the firearms offence as we have stated.