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Appeal against sentence on the grounds of “exceptional circumstances” refused

HMA v ALLAN TURNBULL 2017

A man who was sentenced to the minimum of five years’ imprisonment after pleading guilty to possession of a stun gun has failed in an appeal against his sentence.

The Appeal Court upheld the decision of the Sheriff after rejecting the appellant’s claim that there were “exceptional circumstances” to justify a departure from the statutory minimum sentence of 5 years “unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it in not doing so”. Allan Turnbull, appeared at a trial date at Dundee Sheriff Court in May 2017, when he tendered a plea of guilty to charge 4 on the indictment, being in possession of a stun gun disguised as a torch. The stun gun was recovered by police from a rucksack in the accused’s bedroom and was purchased online around for about £12. The accused tested it on himself, giving himself an electric shock, following which he put in the rucksack where it remained until being seized by the police for about 2 years.

It was submitted by the accused’s defence team that the circumstances of the accused’s possession of a stun gun were a danger to the public and there was absolutely no indication that he would carry out criminal activity with such a stun gun. The sheriff was therefore asked to conclude the statutory minimum sentence would be “arbitrary and disproportionate”. The Criminal Justice Social Work Report also showed limited record of previous convictions with no analogous offences.

However, the sheriff concluded that the case did not fall outside the norm and that exceptional circumstances could not apply. He accordingly imposed a sentence of five years’ imprisonment this charge. Refusing the appeal, the judges considered that the submissions made 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”.

 

Lord Turnbull said: “In the present case the appellant was found to be in possession of a disguised stun gun which was charged and was operational. Contrary to the submission presented on his behalf, it had been used, albeit on himself. He was therefore well aware of its function and effect.”

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