By Paul Taylor QC
DPP’s reference – guilty pleas – deferred sentence – sentencing for firearms offences, knife and drugs offence – double jeopardy and article 70
Director of Public Prosecution's Reference (Number 6 of 2019)
Ian David Price
 NICA 8
This is an important case in which the NICA (including the Lord Chief Justice) consider the correct approach to sentencing for firearms offences (including the Avis criteria and article 70), knife and drugs offences.
DP pleaded eventually guilty (a) to three firearms offences together with an offence in relation to a machete and (b) to three drug offences.
When he appeared for sentencing the judge deferred sentence for 6 months stating that if he was told at the end of that period that DP had turned his life around without coming to police attention, continuing with counselling and having made efforts to come to terms with his various addictions that the sentence which would be imposed would not involve a return to prison.
The Director of Public Prosecutions sought leave to refer the deferral of sentence to the Court of Appeal pursuant to Section 36 of the Criminal Justice Act 1988 on the grounds that it was unduly lenient.
DP had been convicted of a further 167 offences. The overwhelming majority were for road traffic offences; many were comparatively minor. His longest previous custodial sentence was two years and six months imposed in 2010. The record does not contain any previous firearm offence but there were relevant previous convictions: Offensive weapons, drugs offences, assaults.
He was 31 years old at the time of the offences, 33 at the appeal. He had a history of misuse of alcohol, drugs and solvents. He has been the victim of paramilitary assaults on the basis of his alleged involvement in anti-social behaviour.
He informed the author of the pre-sentence report that since his release from custody in 2018 he has refrained from misusing substances, he has distanced himself from negative associates, he has engaged in counselling and he has benefited from attending church which he joined as a means of accessing spiritual support with a view to leading a more settled lifestyle. The probation officer observed that he made a similar claim in the past but ceased attending church. The Probation Service assessed him as presenting a high likelihood of re-offending primarily on the basis of his prior offending history but also on the basis of his association with pro-criminal influences, distorted thinking, unstructured lifestyle, susceptibility to misuse illicit substances and alcohol, impulsivity, risk taking behaviour, reckless behaviour, lack of consequential thinking and limited victim awareness. The probation officer also stated that the offender did not meet PBNI’s criteria to be assessed as posing a significant risk of serious harm at this time. In the event of the court considering alternatives to custody the offender was assessed as suitable and had consented to the imposition of an enhanced combination order.
A psychiatrist considered that the most appropriate psychiatric diagnosis was one of a personality disorder and that the offender’s account of relative stability in the last year and half, if it is true, was consistent with a prospect of a reduction or cessation of offending behaviour.
The Court addressed the following issues:
- Sentencing for Firearms offences:
- Whether the Avis questions assist when considering whether there are exceptional circumstances under Article 70;
- Article 70 of the 2004 Order, “Minimum sentence for certain offences” and exceptional circumstances relating to the offence or to the offender which justify its not” passing a minimum sentence;
- Sentencing for knife crime
- Sentencing for drug offences
The NICA concluded that:
- “… We consider that to impose five years’ imprisonment taking into account all the offences would not result in an arbitrary and disproportionate sentence. This means that there were no exceptional circumstances in this case so that the judge ought not to have deferred sentence.
- The sentences that were imposed were unduly lenient. We quash those sentences.
- We do not consider that double jeopardy has any impact on the appropriate sentences given the requirement of the minimum sentence in Article 70 which we will impose.
- For the firearms offences - 5 years in total; for drugs offences – Total 1 year. Both to run concurrently so 5 years in total.
If you would like to speak to Paul Taylor QC about this case, please email here.