For a Judge to sentence a defendant on the basis his offence involved a firearm this needs to have been reflected in a specific count that a jury has returned a guilty verdict upon.
Yusuf, Palmer, McLean and McKenzie pleaded guilty to conspiracy to rob. McKenzie,Yusuf and Palmer were ultimately convicted of murder, but juries were twice unable to reach a verdict for McLean. The Prosecution indicated that they would not seek a third trial in relation to McLean; they offered no evidence against him and a verdict of not guilty was recorded.
Yusuf, Palmer and McKenzie were each sentenced to life imprisonment for murder and McLean was sentenced to 92 months imprisonment for conspiracy to rob.
It had been a central assertion of the Prosecution's case for murder that the four men had with them a loaded gun. It appears that the judge concluded that, for the purposes of the sentence for conspiracy to rob, the gun was taken to the scene, and McLean knew that it had been.
Two grounds of appeal were advanced in an appeal against McLean's sentence:
1) The Judge was wrong to find as a matter of fact that the appellant had knowledge of a firearm when embarking on the robbery.
2) In the circumstances he should have sentenced the appellant on the basis that he was not aware of the gun.
Held: after the offering of no evidence against McLean in relation to the murder, the judge was led into error, as follows:
1) He was not invited to consider the significance of the fact that the entering of a verdict of not guilty in relation to the murder had the same effect as if McLean had been tried and acquitted of the murder on the verdict of a jury, and (given that the first step in proving murder was proof of prior knowledge of the gun) there was a need to consider the significance of the obvious tension between that acquittal and a finding that he had had prior knowledge of the gun.
2) What the judge was invited to do was not to form his own view as to the facts of an offence of which McLean had been convicted by the jury, but instead to treat the trial as the equivalent of a Newton hearing on a charge which had not been tried.
Thus, whilst it may also be debated whether, in the particular circumstances of this case (with the other three, but not McLean, intent on murder with the gun) it was open to the judge to be sure that prior knowledge was in fact proved, sentence was based on a finding which, in law, the judge was not entitled to make. If the prosecution wished to pursue the allegation of prior knowledge of the possession of the gun for the purpose of the conspiracy to rob, then they were required to apply to add a count to reflect that. What the outcome of that would have been we cannot say.
In the result we quash the sentence imposed on McLean and substitute for it a sentence of 5 years and 7 month's – less time spent on remand. To that extent, his appeal is allowed.
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