A mandatory minimum sentence for a repeat firearms offence is unconstitutional, Supreme Court judge Peter Charleton has concluded in a separate judgment in Wayne Ellis’s appeal. He agreed with the analysis in the main judgment that the provision should be struck down, while stressing that this did not mean Ellis should be automatically released.
The case concerned a five-year minimum sentence imposed after Ellis pleaded guilty in April 2013 to possessing a sawn-off 12-gauge shotgun in suspicious circumstances. He also pleaded guilty to possessing a sledgehammer and a bottle filled with petrol and fitted with socks, described in the judgment as a Molotov cocktail.
Charleton said Ellis had two relevant previous convictions, from 2003 and 2009, for which he received prison terms of six and seven years respectively. The trial judge, Judge Ring, had suspended imprisonment and bound him to the peace. The Director of Public Prosecutions appealed that sentence as unduly lenient. The Court of Appeal later imposed the five-year mandatory minimum after the relevant legislation was brought to its attention.
Charleton said he made no comment on the correctness of the trial judge’s 2013 sentencing decision. His judgment addressed the constitutionality of a fixed minimum sentence under section 27A of the Firearms Act 1964, as amended. He reasoned that courts have a duty to impose a just sentence and that a mandatory minimum for offences other than murder must allow for the circumstances and mitigation in an individual case. In his view, the provision at issue could require a sentence that was unjust.
The judgment is one of several delivered in the Supreme Court appeal. Charleton expressly agreed with the analysis in the principal judgment by Justice Finlay Geoghegan that the provision should be struck down. He did not order Ellis’s release or determine a replacement sentence. Instead, he said the matter required further submissions before the Court of Appeal on the imposition of a just sentence.