Firearms – Possession with intent to endanger life - for consultation only

A – High culpability:

• Sophisticated nature of offence/significant planning
• Leading role where offending is part of a group activity
• Distribution or supply of firearms on a large scale
• Firearm discharged
• Prolonged incident

B – Medium culpability:

• Significant role where offending is part of a group activity
• Some degree of planning
• Firearm loaded or held with compatible ammunition but not discharged
• 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 group activity
• Little or no planning or unsophisticated offending
• Firearm not produced or visible
• Conduct limited in scope and duration

Category 1

• Severe physical harm caused
• Severe psychological harm caused

Category 2

• Serious physical harm caused
• Serious psychological harm caused
• High risk of death or severe physical or psychological harm
• High risk of serious disorder

Category 3

• Alarm/distress caused
• All other cases not falling into 1 or 2

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 143 of the Criminal Justice Act states that:

  In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it 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.

  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 relevant to the current offence when they are of a similar type.
  4. Previous convictions of a type different from the current offence may be relevant 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 less relevant 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

  S143 (3) Criminal Justice Act 2003 states:

  In considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor.

• Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation or transgender identity

  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

  See below for the statutory provisions. 

  • Note the requirement for the court to state that the offence has been aggravated by the relevant hostility.
  • Where the element of hostility is core to the offending, the aggravation will be higher than where it plays a lesser role.

  Increase in sentences for racial or religious aggravation

  s145(2) of the Criminal Justice Act 2003 states:

  If the offence was racially or religiously aggravated, the court—

  (a) must treat that fact as an aggravating factor, and

  (b) must state in open court that the offence was so aggravated.

  An offence is racially or religiously aggravated for these purposes if—

  • at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence, hostility based on the victim's membership (or presumed membership) of a racial or religious group; or
  • the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.

  “membership”, in relation to a racial or religious group, includes association with members of that group;

  “presumed” means presumed by the offender.

  It is immaterial whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned above.

  “racial group” means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.

  “religious group” means a group of persons defined by reference to religious belief or lack of religious belief.

  Increase in sentences for aggravation related to disability, sexual orientation or transgender identity

  s146 of the Criminal Justice Act 2003 states:

  (1) This section applies where the court is considering the seriousness of an offence committed in any of the circumstances mentioned in subsection (2).

  (2) Those circumstances are—

  (a) that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—

  (i) the sexual orientation (or presumed sexual orientation) of the victim,

  (ii) a disability (or presumed disability) of the victim, or

  (iii) the victim being (or being presumed to be) transgender, or

  (b) that the offence is motivated (wholly or partly)—

  (i) by hostility towards persons who are of a particular sexual orientation,

  (ii) by hostility towards persons who have a disability or a particular disability or

  (iii) by hostility towards persons who are transgender.

  (3) The court—

  (a) must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and

  (b) must state in open court that the offence was committed in such circumstances.

  (4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that paragraph.

  (5) In this section “disability” means any physical or mental impairment.

  (6) In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.

Other aggravating factors:

• Firearm under section 5(1)(a) (automatic weapon)
• Firearm modified to make it more dangerous
• Steps taken to disguise firearm (where not firearm under section 5(1A)(a))
• Firearm/ammunition held with multiple weapons and/or substantial quantity of ammunition (See step seven on totality when sentencing more than one offence)
• Offence was committed as part of a group (except where already taken into account at step one)

  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 mere membership of a group (two or more persons) should not be used to increase the sentence, but where the offence was committed as part of a group this will normally make it more serious because:

  • the harm caused (both physical or psychological) or the potential for harm may be greater and/or
  • the culpability of the offender may be higher (the role of the offender within the group will be a relevant consideration).

  Culpability based on role in group offending could range from:

  • Higher culpability indicated by a leading role in the group and/or the involvement by the offender of others through coercion, intimidation or exploitation, to
  • Lower culpability indicated by a lesser or subordinate role under direction and/or involvement of the offender through coercion, intimidation or exploitation.

  Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation (including as a result of domestic abuse, trafficking or modern slavery) which the offender may find difficult to articulate, and where appropriate ask for this to be addressed in a PSR.

  Where the offending is part of an organised criminal network, this will make it more serious, and the role of the offender in the organisation will also be relevant.

  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 group offending.

• Offence committed to further organised criminal activity (except where already taken into account at step one)
• Expectation of substantial financial gain (except where already taken into account at step one)
• 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.

• Serious damage to property caused (See step seven on totality when sentencing more than one offence)
• Abuse of position as registered firearms dealer or certificate holder
• 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 seven on totality when sentencing 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 incomplete or incapable of being discharged
• Firearm/ammunition not prohibited under section 5
• Involved through coercion, intimidation, or exploitation

  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

  • Where this applies it will reduce the culpability of the offender.
  • This factor may be of particular relevance where the offender has been the victim of domestic abuse, trafficking or modern slavery, but may also apply in other contexts.
  • Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation which the offender may find difficult to articulate, and where appropriate ask for this to be addressed in a PSR.
  • This factor may indicate that the offender is vulnerable and would find it more difficult to cope with custody or to complete a community order.
• 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.

• 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

  Mental disorders and learning disabilities are different things, although an individual may suffer from both.  A learning disability is a permanent condition developing in childhood, whereas mental illness (or a mental health problem) can develop at any time, and is not necessarily permanent; people can get better and resolve mental health problems with help and treatment.

  In the context of sentencing a broad interpretation of the terms ‘mental disorder’ and learning disabilities’ should be adopted to include:

  • Offenders with an intellectual impairment (low IQ);
  • Offenders with a cognitive impairment such as (but not limited to) dyslexia, attention deficit hyperactivity disorder (ADHD);
  • Offenders with an autistic spectrum disorder (ASD) including Asperger’s syndrome;
  • Offenders with a personality disorder;
  • Offenders with a mental illness.

  Offenders may have a combination of the above conditions.

  Sentencers should be alert to the fact that not all mental disorders or learning disabilities are visible or obvious.

  A mental disorder or learning disability can affect both:

  1. the offender’s responsibility for the offence and
  2. the impact of the sentence on the offender.

  The court will be assisted by a PSR and, where appropriate, medical reports (including from court mental health teams) in assessing:

  1. the degree to which a mental disorder or learning disability has reduced the offender’s responsibility for the offence. This may be because the condition had an impact on the offender’s ability to understand the consequences of their actions, to limit impulsivity and/or to exercise self-control.

  • • a relevant factor will be the degree to which a mental disorder or learning disability has been exacerbated by the actions of the offender (for example by the voluntary abuse of drugs or alcohol or by voluntarily failing to follow medical advice);
    • in considering the extent to which the offender’s actions were voluntary, the extent to which a mental disorder or learning disability has an impact on the offender’s ability to exercise self-control or to engage with medical services will be a relevant consideration.

  2. any effect of the mental disorder or learning disability on the impact of the sentence on the offender; a mental disorder or learning disability may make it more difficult for the offender to cope with custody or comply with a community order.
• 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 National Probation Service should address these issues in a PSR.

• Mental disorder or learning disability

  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

  Mental disorders and learning disabilities are different things, although an individual may suffer from both.  A learning disability is a permanent condition developing in childhood, whereas mental illness (or a mental health problem) can develop at any time, and is not necessarily permanent; people can get better and resolve mental health problems with help and treatment.

  In the context of sentencing a broad interpretation of the terms ‘mental disorder’ and learning disabilities’ should be adopted to include:

  • Offenders with an intellectual impairment (low IQ);
  • Offenders with a cognitive impairment such as (but not limited to) dyslexia, attention deficit hyperactivity disorder (ADHD);
  • Offenders with an autistic spectrum disorder (ASD) including Asperger’s syndrome;
  • Offenders with a personality disorder;
  • Offenders with a mental illness.

  Offenders may have a combination of the above conditions.

  Sentencers should be alert to the fact that not all mental disorders or learning disabilities are visible or obvious.

  A mental disorder or learning disability can affect both:

  1. the offender’s responsibility for the offence and
  2. the impact of the sentence on the offender.

  The court will be assisted by a PSR and, where appropriate, medical reports (including from court mental health teams) in assessing:

  1. the degree to which a mental disorder or learning disability has reduced the offender’s responsibility for the offence. This may be because the condition had an impact on the offender’s ability to understand the consequences of their actions, to limit impulsivity and/or to exercise self-control.

  • • a relevant factor will be the degree to which a mental disorder or learning disability has been exacerbated by the actions of the offender (for example by the voluntary abuse of drugs or alcohol or by voluntarily failing to follow medical advice);
    • in considering the extent to which the offender’s actions were voluntary, the extent to which a mental disorder or learning disability has an impact on the offender’s ability to exercise self-control or to engage with medical services will be a relevant consideration.

  2. any effect of the mental disorder or learning disability on the impact of the sentence on the offender; a mental disorder or learning disability may make it more difficult for the offender to cope with custody or comply with a community order.
• 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 National 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 94-100)