Paisley man jailed for possession of disguised stun gun has sentence reduced

Lord Menzies
Lord Menzies

A man who was imprisoned for carrying a stun gun disguised as a mobile phone has been successful in challenging the length of his sentence in the Appeal Court of the High Court of Justiciary.

Ronald McMahon, aged 57, pled guilty to an offence under section 5(1A)(a) of the Firearms Act 1968 at the first preliminary hearing of his case and was sentenced to 6 years’ imprisonment. He argued that his sentence should have received a discount to reflect his early guilty plea.

The appeal was heard by Lord Menzies and Lord Turnbull. The appellant was represented by Keenan, solicitor-advocate, and the Crown by Prentice QC.

Prescribed minimum 

The offence to which the appellant pled guilty was one with a prescribed minimum sentence of five years’ imprisonment in the absence of exceptional circumstances. In determining the length of his sentence, the sentencing judge had regard for the appellant’s age and poor health and his record of previous convictions for a wide variety of offences. 

The appellant had previously been convicted of offences under the Firearms Act as well as offences under the Misuse of Drugs Act 1971 and a conviction for wilful fire-raising for which he was imprisoned for 12 years. In the circumstances, the sentencing judge concluded that a sentence of six years’ imprisonment was appropriate. 

In determining the length of the appellant’s sentence, the sentencing judge concluded that it was not open to her to apply a discount where the resultant sentence would be in excess of the minimum period laid down by Parliament for the offence. She understood that any discount ought to be deducted only from the period in excess of the minimum sentence, and no such submission had been made to her. 

Additionally, the judge cited obiter dicta comments in HMA v McGovern (2007) that section 196 of the Criminal Procedure (Scotland) Act 1995 did not apply where a minimum sentence was prescribed by the Firearms Act. There was therefore no warrant for discounting the sentence. 

It was submitted for the appellant that the sentencing judge had erred in her conclusions regarding the effect of the guilty plea. The discount ought to be applied to the whole sentence of 6 years, and if the resulting sentence would be below the statutory minimum then the appropriate sentence would be the specified minimum. While this meant the appellant could not benefit from the full one-quarter discount that might otherwise have been applied, the sentence should still be lowered to reflect the value of his plea. 

Required to be discounted 

The opinion of the court was delivered by Lord Menzies. Examining the general effect of section 196 of the 1995 Act, he said: “This provision applies generally, and so applies to offences for which Parliament has provided a minimum sentence, with the important proviso that the discounted sentence cannot fall below that minimum sentence.” 

Noting that the 1995 Act made particular provisions to allow sentence discounts that could bring a sentence under the statutory minimum in respect of certain drugs offences, he said: “There is no such provision in relation to a minimum sentence in terms of the Firearms Act. However, that does not mean that the general provisions in section 196(1) of the 1995 Act have no application to sentencing under the Firearms Act.” 

He continued: “The result is that, for an offence for which a minimum sentence is provided under the Firearms Act, a discounting exercise may be carried out provided that the resultant sentence does not fall below the specified minimum period.” 

Lord Menzies then turned to the case cited by the sentencing judge in support of her conclusions, saying: “It should be borne in mind that HMA v McGovern was a Crown appeal against the decision of a sentencing judge that exceptional circumstances existed in that case, and that the sentence was therefore unduly lenient. The focus of the case was on exceptional circumstances, and not on discount.” 

He continued: “The court in [McGovern] was not stating that there was no scope at all for discounting where a minimum sentence was required, but merely that any discount of a sentence greater than the minimum sentence could not be discounted so that the result was less than the minimum sentence.” 

On the appropriate approach to the sentencing exercise, he said: “The sentencing judge did not consider [a discount], because she considered that there was no warrant for this. In this respect she was in error. The indictment was served on the same day as a section 76 letter was received, and a plea of guilty was tendered at the preliminary hearing. In these circumstances, it might be expected that a discount of at least 25% would be applied.” 

Lord Menzies therefore concluded: “Applying such a discount would result in a sentence of less than the minimum sentence of 5 years. There was no suggestion that there were exceptional circumstances. The sentence therefore required to be discounted from the headline of 6 years to the minimum sentence of 5 years.” 

© Scottish Legal News Ltd 2021

Other judgments by Lord Menzies