Five year sentence upheld for possessing £12 disguised stun gun
A 30 year old man who bought an electronic stun gun, disguised as a torch, "out of curiosity" for £12 over the internet, tested it on himself then left it unused in a rucksack for two years, had failed to show exceptional circumstances to justify the court reducing the mandatory five year prison sentence otherwise laid down by Parliament, appeal judges have ruled.
Lady Paton and Lord Turnbull upheld the sentence imposed on Allan Turnbull in Dundee Sheriff Court under s 51A of the Firearms Act 1968, as amended, the stun gun being a firearm within the Act.
The stun gun had been recovered by police from a rucksack in the accused's bedrooom in his mother's house. It was in good working order. The accused said he had bought it about two years earlier over the internet for about £12, partly out of curoisity, he tested it on himself, giving himself an electric shock, and then left it in the rucksack.
According to the social work report the accused had accepted that he knew he was in possession of an unlawful weapon. The sheriff also took into account the accused's limited and non-analogous record, his low risk of reoffending and the fact that his mother had long term health problems and relied on him for help, but held that exceptional circumstances had not been made out.
On appeal it was argued that there was no suggestion that the gun would be used and the policy of Parliament of protecting the public was not engaged, thus the sentence was "arbitrary and disproportionate".
Lord Turnbull, delivering the opinion of the court, said that Parliament's policy in enacting the minimum sentence provisions was to send out a deterrent message. He continued: "In our opinion, the submissions presented on the appellant’s behalf failed to give adequate weight to the restricted circumstances in which a sentencer would be entitled to depart from Parliament’s declared intention. The absence of aggravations would not constitute exceptionality. It is not the presence of mitigating circumstances which matters, but the presence of mitigating circumstances such as can permit the sentencer to conclude that there are exceptional circumstances relating to the offence or the offender."
The accused was well aware of the gun's function and effect; had used it, even if on himself; had kept it charged and operational; and had kept it through various moves of house. All this showed a risk of it falling into the hands of another.
He concluded: "In our opinion, the circumstances of the present case were serious and fell within the type of offending behaviour which Parliament intended to prevent. It does not seem to us that the case falls outside the range of cases which Parliament can be taken to have had in mind as the norm, and we do not agree that the imposition of the statutory minimum sentence can be said to be arbitrary and disproportionate in the appellant’s case."