Correcting misconceived charges was a special circumstance in this case which meant there was no abuse of process. Exceptional circumstances meant credit could be given for a guilty plea, despite the mandatory sentencing provision
On the 30th July 2013 Mr Antoine pleaded guilty in the Magistrates Court to possession of a firearm without a certificate contrary to s.1(1)(a) of the Firearms Act 1968 and possession of ammunition without a certificate contrary to s.1(1)(b) and was sentenced to four months' imprisonment.
Mr Antoine was then subsequently charged with s.5 (1) (aba) and s.21(2) of the Firearms Act 1968. There was no dispute that all charges arose from the same set of facts; his possession of a loaded revolver. In Luton Crown Court autrefois convict and abuse of process arguments were rejected. Mr Antoine then pleaded guilty and was sentenced to 56 months for the s.5 (1) offence and 24 months, concurrent, for s.21 (2).
The sentence and conviction for the second set of charges was appealed and Mr Richard Storey appeared on behalf of Mr Antoine. It was submitted that:
The judge had been wrong to find that there were special circumstances which justified the new charges and he should have stayed the case as an abuse of process.
Once the sentencing judge had found exceptional circumstances sentence was at large, despite the mandatory sentencing provisions, and the sentence should have been reduced to reflect the guilty plea
Held: The appeal against conviction was dismissed, but the appeal against sentence was allowed. The general rule is that a judge should stay an indictment when the counts are founded on the same facts as those in a previous indictment on which the defendant has been convicted. However, where the prosecution satisfy a judge that special circumstances arise, the judge can exercise his discretion as to whether the general rule should apply; the judge can decide that the special circumstances mean that to try the defendant on the new indictment would not be oppressive or unjust. This reflects the judgment of Lord Devlin in Connelly v DPP  A.C. 125. Special circumstances existed in the present case. Mr Antoine knew the risk of carrying a loaded revolver and he expected to go to the Crown Court to receive a long custodial sentence. He had received an unexpected windfall in receiving only a 4 month sentence.
This was not simply an escalation of minor charges to more serious charges, the CPS brought the second set of charges because the first set were misconceived.
The Court accepted Mr Storey's argument on sentence that once a judge has identified exceptional circumstances, sentence was at large. Mr Antoine's sentence was therefore reduced from 56 months to 37 months to reflect the timely guilty plea. The Court paid ‘tribute to the written and oral argument of Mr Storey' and his ‘commendable skill and focus.'
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