Firearms – Possession with intent to endanger life

Firearms Act 1968, s.16

Indictable only
Maximum: Life imprisonment
Offence range:  4 – 22 years’ custody

This is a Schedule 19 offence for the purposes of sections 274 and 285 (required life sentence for offence carrying life sentence) of the Sentencing Code.

For offences committed on or after 3 December 2012, this is an offence listed in Part 1 of Schedule 15 for the purposes of sections 273 and 283 (life sentence for second listed offence) of the Sentencing Code.

This is a specified offence listed in part 1 of Schedule 18 for the purposes of sections 266 and 279 (extended sentence for certain violent, sexual or terrorism offences) of the Sentencing Code.

User guide for this offence


Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Applicability

In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all offenders aged 18 and older, who are sentenced on or after the effective date of this guideline, regardless of the date of the offence.*

Section 59(1) of the Sentencing Code provides that:

“Every court –

  1. must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
  2. must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,

unless the court is satisfied that it would be contrary to the interests of justice to do so.”

This guideline applies only to offenders aged 18 and older. General principles to be considered in the sentencing of children and young people are in the Sentencing Council definitive guideline, Overarching Principles – Sentencing Children and Young People.

*The maximum sentence that applies to an offence is the maximum that applied at the date of the offence.

This offence is subject to statutory minimum sentencing provisions which are taken into account at steps 2 and 3. Sentencers should follow each step of the guideline to ensure that all relevant factors are considered.

Step 1 – Determining the offence category

The court should determine the offence category with reference only to the factors listed in the tables below. In order to determine the category the court should assess culpability and harm.

The court should weigh all the factors set out below in determining the offender’s culpability.

Where there are characteristics present which fall under different levels of culpability, the court should balance these characteristics to reach a fair assessment of the offender’s culpability.

Culpability demonstrated by one or more of the following:

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 significant 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

Harm

The court should consider the factors set out below to determine the level of harm that has been caused or was risked.

This step is assessed by reference to the risk of harm or disorder occurring and/or actual harm caused.
When considering the risk of harm, relevant considerations may include the location of the offence, the number and vulnerability of people exposed, especially children and the accessibility and visibility of the weapon

Category 1

  • Severe physical harm caused
  • Severe psychological harm caused

Category 2

  • Serious physical harm
  • Serious psychological harm
  • 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

Where there are characteristics present which fall under different levels of harm, the court should balance these characteristics to reach a fair assessment of the harm.

Where separate charges apply, for example in relation to any death or injury caused, the court should have regard to totality (see step 7).

Step 2 – Starting point and category range

Having determined the category at step 1, the court should use the corresponding starting point to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions.

This offence may be subject to a statutory minimum sentence

The minimum term applies in respect of a firearm specified in section 5(1)(a), (ab), (aba), (ac), (ad), (ae) or (af), (c) or section 5(1A)(a) of the Firearms Act 1968.

See step 3 for details of the minimum sentencing provisions and the approach to be taken to consideration of exceptional circumstances.

Harm   Culpability  
  A B C
Category 1

Starting point
18 years’ custody

Starting point
14 years’ custody

Starting point
10 years’ custody

Category range
16 – 22 years’ custody

Category range
11 – 17 years’ custody

Category range
8 – 12 years’ custody

Category 2

Starting point
14 years’ custody

Starting point
10 years’ custody

Starting point
7 years’ custody

Category range
11 – 17 years’ custody

Category range
8 – 12 years’ custody

Category range
5 – 9 years’ custody

Category 3

Starting point
10 years’ custody

Starting point
7 years’ custody

Starting point
5 years’ custody

Category range
8 – 12 years’ custody

Category range
5 – 9 years’ custody

Category range
4 – 7 years’ custody

Custodial sentences

Sentencing flowcharts are available at Imposition of Community and Custodial Sentences definitive guideline.


The approach to the imposition of a custodial sentence should be as follows:

1) Has the custody threshold been passed?

  • A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.
  • There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment.
  • The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.

2) Is it unavoidable that a sentence of imprisonment be imposed?

  • Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
  • 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.

3) What is the shortest term commensurate with the seriousness of the offence?

  • In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release.

4) Can the sentence be suspended?

  • A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.

The following factors should be weighed in considering whether it is possible to suspend the sentence:

Factors indicating that it would not be appropriate to suspend a custodial sentence

Factors indicating that it may be appropriate to suspend a custodial sentence

Offender presents a risk/danger to the public

Realistic prospect of rehabilitation

Appropriate punishment can only be achieved by immediate custody

Strong personal mitigation

History of poor compliance with court orders

Immediate custody will result in significant harmful impact upon others

The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.

Pre-sentence report

Whenever the court reaches the provisional view that:

  • the custody threshold has been passed; and, if so
  • the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence;

the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case.

Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.

Suspended Sentences: General Guidance

i) The guidance regarding pre-sentence reports applies if suspending custody.

ii) If the court imposes a term of imprisonment of between 14 days and 2 years (subject to magistrates’ courts sentencing powers), it may suspend the sentence for between 6 months and 2 years (the ‘operational period’). The time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to 6 months.

iii) Where the court imposes two or more sentences to be served consecutively, the court may suspend the sentence where the aggregate of the terms is between 14 days and 2 years (subject to magistrates’ courts sentencing powers).

iv) When the court suspends a sentence, it may impose one or more requirements for the offender to undertake in the community. The requirements are identical to those available for community orders, see the guideline on Imposition of Community and Custodial Sentences.

v) A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately.

In cases involving multiple counts of serious offending, sentences above the top of the range may be justified having regard to totality (see step 7).

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the sentence arrived at so far. In some cases, having considered these factors, it may be appropriate to move outside the identified category range. 

Factors increasing seriousness

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 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

    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.

     

  • 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.

    Section 66 of the Sentencing Code states:

    Hostility

    (1) This section applies where a court is considering the seriousness of an offence which is aggravated by—

    (a) racial hostility,

    (b) religious hostility,

    (c) hostility related to disability,

    (d) hostility related to sexual orientation, or

    (e) hostility related to transgender identity.

    This is subject to subsection (3).

    (2) The court—

    (a) must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and

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

    (3) So far as it relates to racial and religious hostility, this section does not apply in relation to an offence under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated offences).

    (4) For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in subsection (1) if—

    (a) 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 victim’s membership (or presumed membership) of a racial group,

    (ii) the victim’s membership (or presumed membership) of a religious group,

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

    (iv) the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be)

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

    (b) the offence was motivated (wholly or partly) by—

    (i) hostility towards members of a racial group based on their membership of that group,

    (ii) hostility towards members of a religious group based on their membership of that group,

    (iii) hostility towards persons who have a disability or a particular disability,

    (iv) hostility towards persons who are of a particular sexual orientation, or (as the case may be)

    (v) hostility towards persons who are transgender.

    (5) For the purposes of paragraphs (a) and (b) of subsection (4), it is immaterial whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph.

    (6) In this section—

    (a) references to a racial group are to a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins;

    (b) references to a religious group are to a group of persons defined by reference to religious belief or lack of religious belief;

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

    (d) “disability” means any physical or mental impairment;

    (e) 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;

    (f) “presumed” means presumed by the offender.

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 7 on totality when sentencing more than one offence)
  • Offence was committed as part of a group

    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.

    (except where already taken into account at step 1)
  • Offence committed to further organised criminal activity (except where already taken into account at step 1)
  • Expectation of substantial financial gain (except where already taken into account at step 1)
  • 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 7 on totality when sentencing more than one offence)
  • Abuse of position as registered firearms dealer, certificate holder or other authorised user
  • 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 (Care should be taken to avoid double counting matters taken into account when considering previous convictions. See step 7 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.

 

Factors reducing seriousness or reflecting personal mitigation

  • 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.

    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 National 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 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)

     

Step 3 – Minimum Term and exceptional circumstances

Minimum Term

1.     Where the minimum term provisions under section 311 and Schedule 20 of the Sentencing Code apply, a court must impose a sentence of at least five years’ custody irrespective of plea unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.

Applicability

2.     The minimum terms provisions apply when sentencing offences in respect of a firearm or ammunition specified in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or section 5(1A)(a) of the Firearms Act 1968 committed on or after 6 April 2007. Note: the minimum term provisions do not apply to offences charged as conspiracies.

3.     The minimum term applies to all such offences including the first offence, and regardless of plea. Where it applies the sentence cannot be reduced below the minimum term for a guilty plea (see Step 5 – Reduction for guilty pleas).

4.     The minimum term of five years applies to offenders aged 18 or over when the offence was committed.  See below for guidance when sentencing offenders aged under 18 when the offence was committed.

5.     Where the minimum term applies, this should be stated expressly.

Exceptional circumstances

6.     In considering whether there are exceptional circumstances that would justify not imposing the statutory minimum sentence, the court must have regard to:

  • the particular circumstances of the offence and
  • the particular circumstances of the offender.

either of which may give rise to exceptional circumstances

7.     Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions VII: Sentencing B.

8.     Where the issue of exceptional circumstances has been raised the court should give a clear explanation as to why those circumstances have or have not been found.

Principles

9.     Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence.

10.  The circumstances must truly be exceptional. It is important that courts do not undermine the intention of Parliament and the deterrent purpose of the minimum term provisions by too readily accepting exceptional circumstances.

11.  The court should look at all of the circumstances of the case taken together. A single striking factor may amount to exceptional circumstances, or it may be the collective impact of all of the relevant circumstances.

12.  The mere presence of one or more of the following should not in itself be regarded as exceptional:

  • One or more lower culpability factors
  • One or more mitigating factors
  • A plea of guilty

Where exceptional circumstances are found

13.  If there are exceptional circumstances that justify not imposing the statutory minimum sentence then the court must impose either a shorter custodial sentence than the statutory minimum provides or an alternative sentence. Note: a guilty plea reduction applies in the normal way if the minimum term is not imposed (see Step 5 – Reduction for guilty pleas).

Sentencing offenders aged under 18 at the date of the offence
  1. Where the offender is aged 16 or 17 when the offence was committed, the minimum term is three years’ custody. Where the offender is under 16 when the offence was committed, the minimum term does not apply.
  2. Subject to the minimum term, where the offender is aged under 18 at the date of conviction the court should determine the sentence in accordance with the Sentencing Children and Young People guideline, particularly paragraphs 6.42-6.49 on custodial sentences.
  3. This guidance states at paragraph 6.46: “When considering the relevant adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. In most cases when considering the appropriate reduction from the adult sentence the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age.”
  4. The considerations above on exceptional circumstances relating to the offence or offender apply equally when sentencing offenders aged 16 or 17 at the date of the offence.

Step 4 – Consider any factors which indicate a reduction for assistance to the prosecution

The court should take into account section 74 of the Sentencing Code (reduction in sentence for assistance to prosecution) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.

Step 5 – Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 73 of the Sentencing Code and the Guilty Plea guideline.

Where a minimum sentence has been imposed under section 311 of the Sentencing Code, the court must ensure that any reduction for a guilty plea does not reduce the sentence to less than the required minimum term.

Step 6 – Dangerousness

The court should consider

1) whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it would be appropriate to impose a life sentence (sections 274 and 285) or an extended sentence (sections 266 and 279) and

2) whether having regard to sections 273 and 283 of the Sentencing Code it would be appropriate to impose a life sentence.
When sentencing offenders to a life sentence under these provisions, the notional determinate sentence should be used as the basis for the setting of a minimum term.

Step 7 – Totality principle

If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending behaviour in accordance with the Totality guideline.

Step 8 – Ancillary orders

In all cases the court should consider whether to make ancillary orders.

Forfeiture and destruction of firearms and cancellation of certificate

The court should consider ordering forfeiture or disposal of any firearm or ammunition and the cancellation of any firearms certificate. Section 52 of the Firearms Act 1968 provides for the forfeiture and disposal of firearms and the cancellation of firearms and shotgun certificates where a person is convicted of this offence and is given a custodial sentence or a community order containing a requirement not to possess, use or carry a firearm.

Step 9 – Reasons

Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 10 – Consideration for time spent on bail (tagged curfew)

The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003 and section 325 of the Sentencing Code.