Firearms – Transfer and manufacture - for consultation only

A – High culpability

• Leading role where offending is part of a group activity, including but not limited to head of enterprise, a lead armourer or a key facilitator
• Significant planning, including but not limited to significant steps to evade detection
• Abuse of position of trust or responsibility, for example registered firearms dealer
• Expectation of substantial financial or other advantage
• Involves others through coercion, intimidation or exploitation

B – Medium culpability

• Significant role where offending is part of a group activity, including but not limited to a purchaser or a provider of significant assistance in facilitating transfer or manufacture
• Some degree of planning, including but not limited to some steps to evade detection
• Expectation of significant financial or other advantage
• Other cases falling between culpability A and C because:

• • Factors are present in A and C which balance each other out and/or
  • The offender’s culpability falls between the factors as described in A and C

C – Lower culpability

• Lesser role where offending is part of a group activity, including but not limited to performing a limited function under direction
• Involved through coercion, intimidation or exploitation
• Little or no planning
• Expectation of limited, if any, financial or other advantage

Category 1

• Large-scale commercial and/or highly sophisticated enterprise – indicators may include:

• • Large number of prohibited weapons/ ammunition involved
  • Operation over significant time period
  • Operation over significant geographic range
  • Close connection to organised criminal group(s)

• Evidence firearm/ammunition subsequently used to cause serious injury or death

Category 2

• Medium-scale enterprise and/or some degree of sophistication, including cases falling between category 1 and category 3 because:

• • Factors in both 1 and 3 are present which balance each other out; and/or
  • The harm falls between the factors as described in 1 and 3

• Evidence firearm/ammunition subsequently used in criminal offending (where not at category 1)

Category 3

• Smaller-scale and/or unsophisticated enterprise – indicators may include:

• • Limited number of prohibited weapons/ ammunition involved
  • Operation over limited time period
  • Operation over limited geographic range
  • Minimal/no connection to organised criminal group(s)

• Evidence firearm/ammunition not subsequently used in criminal offending

Statutory aggravating factors:

• Previous convictions,

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  Guidance on the use of previous convictions

  The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence:

  Section 65 of the Sentencing Code states that:

  (1) This section applies where a court is considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more relevant previous convictions.

  (2) The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having regard in particular to— (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.

  (3) Where the court treats a relevant previous conviction as an aggravating factor under subsection (2) it must state in open court that the offence is so aggravated.

  1. Previous convictions are considered at step two in the Council’s offence-specific guidelines.
  2. The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences.
  3. Previous convictions are normally of relevance to the current offence when they are of a similar type.
  4. Previous convictions of a type different from the current offence may be of relevance where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
  5. Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary.
  6. If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence.
  7. In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum.
  8. The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are of less relevance to the offender’s culpability for the current offence and less likely to be predictive of future offending.
  9. Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
  10. The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish.
  11. Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
  12. When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences.
  13. Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence
  having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
• Offence committed whilst on bail

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  Section 64 of the Sentencing Code states:

  In considering the seriousness of any offence committed while the offender was on bail, the court must - (a) treat the fact that it was committed in those circumstances as an aggravating factor and (b) state in open court that the offence is so aggravated.  

Other aggravating factors:

• Firearm under section 5(1)(a) (automatic weapon)
• Steps taken to disguise firearm (where not firearm under section 5(1A)(a))
• Compatible ammunition and/or silencer(s) supplied with firearm (See step 6 on totality when sentencing for more than one offence)
• Others put at risk of harm, including by location or method of manufacture or transfer

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • Where there is risk of harm to other(s) not taken in account at step one and not subject to a separate charge, this makes the offence more serious.
  • Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does.

  Where any such risk of harm is the subject of separate charges, this should be taken into account when assessing totality.

  When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

• Use of business as a cover
• Attempts to conceal or dispose of the firearm or other evidence

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence.

  When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.

  Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.

• Commission of offence whilst under the influence of alcohol or drugs

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  The fact that an offender is voluntarily intoxicated at the time of the offence will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending.

  This applies regardless of whether the offender is under the influence of legal or illegal substance(s).

  In the case of a person addicted to drugs or alcohol the intoxication may be considered not to be voluntary, but the court should have regard to the extent to which the offender has sought help or engaged with any assistance which has been offered or made available in dealing with the addiction.

  An offender who has voluntarily consumed drugs and/or alcohol must accept the consequences of the behaviour that results, even if it is out of character.

   

• Offender prohibited from possessing weapon or ammunition because of previous conviction (See step 6 on totality when sentencing for more than one offence)
• Failure to comply with current court orders

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • Commission of an offence while subject to a relevant court order makes the offence more serious.
  • The extent to which the offender has complied with the conditions of an order (including the time that has elapsed since its commencement) will be a relevant consideration.
  • Where the offender is dealt with separately for a breach of an order regard should be had to totality
  • Care should be taken to avoid double counting matters taken into account when considering previous convictions.

  When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

• Offence committed on licence or post sentence supervision

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending.
  • The extent to which the offender has complied with the conditions of a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration.
  • Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality.
  • Care should be taken to avoid double counting matters taken into account when considering previous convictions.

  When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

• No previous convictions or no relevant/recent convictions

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
  

  • First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
  • Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
  • When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it. 
  • Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders).  In general the more serious the previous offending the longer it will retain relevance.
• Good character and/or exemplary conduct

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  This factor may apply whether or not the offender has previous convictions.  Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence. 

  However, this factor is less likely to be relevant where the offending is very serious.  Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor.

• Firearm/ammunition not subject to minimum term
• Firearm incomplete or incapable of being discharged (including stun gun that is not charged and not held with a functioning charger)
• Genuine belief that firearm will not be used for criminal purpose
• No knowledge or suspicion that item possessed was firearm/ammunition
• No knowledge or suspicion that firearm/ammunition is prohibited
• Voluntary surrender of firearm/ammunition
• Offender co-operated with investigation and/or made early admissions

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  Assisting or cooperating with the investigation and /or making pre-court admissions may ease the effect on victims and witnesses and save valuable police time justifying a reduction in sentence (separate from any guilty plea reduction).

• Remorse

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  The court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour in order to reduce the sentence (separate from any guilty plea reduction).

  Lack of remorse should never be treated as an aggravating factor.

  Remorse can present itself in many different ways. A simple assertion of the fact may be insufficient, and the offender’s demeanour in court could be misleading, due to nervousness, a lack of understanding of the system, a belief that they have been or will be discriminated against, peer pressure to behave in a certain way because of others present, a lack of maturity etc. If a PSR has been prepared it may provide valuable assistance in this regard.

   

• Serious medical condition requiring urgent, intensive or long-term treatment

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • The court can take account of physical disability or a serious medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the offender, or as a matter of generally expressed mercy in the individual circumstances of the case.
  • However, such a condition, even when it is difficult to treat in prison, will not automatically entitle the offender to a lesser sentence than would otherwise be appropriate.
  • There will always be a need to balance issues personal to an offender against the gravity of the offending (including the harm done to victims), and the public interest in imposing appropriate punishment for serious offending.
  • A terminal prognosis is not in itself a reason to reduce the sentence even further. The court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody. The prospect of death in the near future will be a matter considered by the prison authorities and the Secretary of State under the early release on compassionate grounds procedure (ERCG).
  • But, an offender’s knowledge that he will likely face the prospect of death in prison, subject only to the ERCG provisions, is a factor that can be considered by the sentencing judge when determining the sentence that it would be just to impose.
• Age and/or lack of maturity

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  Age and/or lack of maturity can affect:

  • the offender’s responsibility for the offence and
  • the effect of the sentence on the offender.

  Either or both of these considerations may justify a reduction in the sentence.

  The emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater). 

  In particular young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to:

  • evaluate the consequences of their actions
  • limit impulsivity
  • limit risk taking

  Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers.

  Immaturity can also result from atypical brain development. Environment plays a role in neurological development and factors such as adverse childhood experiences including deprivation and/or abuse may affect development.

  An immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody.

  An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support.

  There is a greater capacity for change in immature offenders and they may be receptive to opportunities to address their offending behaviour and change their conduct.

  Many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties.  Therefore a young adult’s previous convictions may not be indicative of a tendency for further offending.

  Where the offender is a care leaver the court should enquire as to any effect a sentence may have on the offender’s ability to make use of support from the local authority. (Young adult care leavers are entitled to time limited support. Leaving care services may change at the age of 21 and cease at the age of 25, unless the young adult is in education at that point). See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17).

  Where an offender has turned 18 between the commission of the offence and conviction the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but applying the purposes of sentencing adult offenders. See also the Sentencing Children and Young People Guideline (paragraphs 6.1 to 6.3).

  When considering a custodial or community sentence for a young adult the Probation Service should address these issues in a PSR.

• Mental disorder or learning disability

  Effective from: 01 October 2020

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  Refer to the Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline.

  Note in particular paragraph 5 for Black, Asian and Minority Ethnic offenders.

• Sole or primary carer for dependent relatives

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered.  See also the Imposition of community and custodial sentences guideline.

  For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

  Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed and whether the sentence can be suspended.

  For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.

  ­When imposing a community sentence on an offender with primary caring responsibilities the effect on dependants must be considered in determining suitable requirements.

  In addition when sentencing an offender who is pregnant relevant considerations may include:

  • any effect of the sentence on the health of the offender and
  • any effect of the sentence on the unborn child

  The court should ensure that it has all relevant information about dependent children before deciding on sentence.

  When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.

  When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the Probation Service to address these issues in a PSR.

  Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 131 to 137)