R v George Garner

On count 2, possessing an imitation firearm with intent to cause fear of violence, contrary to section 16 A of the Firearms Act 1968 , there was no separate penalty.

The facts

The facts are not in dispute for present purposes and can be taken from the Final Reference filed on behalf of the Solicitor General. At 2.00 pm on 4 August 2025 Mr Marcio Carmelino was at his home address (multiple occupancy housing in Sutton Bridge). The offender rang the doorbell, Mr Carmelino opened the door and did not know the offender. The offender asked Mr Carmelino if he fixed cars. Mr Carmelino said that he did not and tried to shut the door. The offender barged the door far enough open to get into the doorway. He was holding a firearm in his left hand with what appeared to be a silencer on the end of it. The gun was fired in the gap between the front door and the frame. At this point Mr Carmelino realised the gun was an air pistol. The offender reached down to his waist area with his right hand and produced an axe. He pulled his hand behind his head and with a swing brought the axe down, making contact with the right side of Mr Carmelino's forehead just above the eye. By this point both men were inside the house and the offender shut the door. He demanded money from Mr Carmelino. Mr Carmelino was retreating towards the kitchen when the offender took another swing with the axe towards Mr Carmelino's head, forcing him to block the swing by raising his arm. Mr Carmelino was able to take hold of the offender in a "cuddling style" and the two of them fell to the floor. The offender got on top of Mr Carmelino and delivered blows to the head and upper body of Mr Carmelino using both the firearm and the axe. Mr Carmelino tried to dodge the blows. He feared for his life. He shouted for help and another occupant in the property and also a passerby managed to subdue the offender and detain him until the police arrived and arrested him.

The sentencing framework

The maximum sentence for an offence of aggravated burglary and an offence of section 18 wounding with intent is life imprisonment. The maximum sentence for possession of a firearm with intent to cause fear of violence is 10 years' imprisonment. The maximum sentence for the possession of a bladed article in a public place is 4 years' imprisonment. There are sentencing guidelines which apply. It is only necessary for present purposes to refer to some of them, the most relevant.

The guideline on aggravated burglary requires an assessment to be made both of culpability and of harm. A case falls within category A (high culpability) for present purposes if there is a significant degree of planning or organisation. It falls for present purposes within category B (medium culpability) if there is some degree of planning or organisation.

Category 1 harm includes cases where there is violence used or serious violence threatened against the victim, substantial physical or psychological injury or substantial emotional or other impact on the victim. If an offence falls within category 1A the guideline recommends a starting point of 10 years' custody, with a category range of 9 to 13 years. If the offence falls within category 1B, the guideline recommends a starting point of 8 years' custody, with a category range of 6 to 11 years. It will be apparent from that outline that the category range for a 1A offence overlaps, to some extent, with the category range for a category 1B offence.

The guideline on firearms, possession with intent to cause fear of violence, again recommends assessment of culpability and harm. Even in the case of an imitation firearm if it is discharged, that falls within category A "high culpability". Category 2 harm includes where there is serious physical harm caused or serious psychological harm caused. For an imitation firearm the guideline recommends a starting point of 4 years' custody with a category range of 3 to 6 years.

The sentencing process

The offender had two previous convictions for two offences committed in 2010 and 2022, both for driving a motor vehicle with excess alcohol. It is accepted on behalf of the Solicitor General that those are not similar to the offending with which we are now concerned but, correctly, it is also submitted that that means that this offender was not a man of previous good character. Nevertheless, as will be seen, and as Mr Sands has submitted on behalf of the respondent, it also has to be borne in mind that there are positive character references in the respondent's favour which are before the Court.

The sentencing court had the advantage of a Sentencing Note from the prosecution, which submitted that count 1 was the most serious offence and fell within culpability A because there was a significant degree of planning and organisation going equipped with two weapons, being recruited by another, wearing gloves and clear targeting of the victim. Harm was category 1. The defence accepted that it fell within category 1A but submitted that it fell towards the very bottom of the category range.

The sentencing court had a victim personal statement from Mr Carmelino who had attended the sentencing hearing. He already suffered from various health problems including needing a crutch because of his mobility issues. Since the attack he had constant pain especially in the forehead and the right side of his face. His anxiety and depression had worsened. His sleep was disrupted. He did not feel safe in his own home and did not want to open his front door.

There was no pre-sentence report but there was a Liaison and Diversion court report dated 26 September 2025 from a Crown Court clinician. She had had access to the offender by video link and access to his patient records. The offender was struggling with his mental health in prison and found isolation difficult. He was ashamed of his actions. Since the Covid Pandemic he had become aware of issues with short-term memory and forgetfulness, he had experienced disorientation and found it difficult to manage his anger levels. He felt he had been dismissed by Support Services because of previous heavy alcohol use. He was taking medication and mild cognitive impairment had been recorded in 2021. There were also three character references on behalf of the offender. One person (Mr Gallagher) had himself been to prison some years ago and had been assisted by this respondent to turn his life around. There was a character reference from the offender's wife and also from the family doctor, who found the offender to be honest and reliable and said that his life had been enriched by this offender.

Submissions on behalf of the Solicitor General

On behalf of the Solicitor General, Ms Newcombe submits that the sentence of 4 years in total was unduly lenient. She makes three main submissions. First, and most importantly, she submits the judge erred in reducing the offender's culpability from category A to category B for aggravated burglary by reason of how confused his mind was. No parties at the sentencing hearing had referred to the guideline on sentencing offenders with mental disorders, developmental disorders or neurological impairments. She submits that those guidelines should have been considered and, if they had been, the judge should have concluded there was insufficient evidence of a mental disorder or impairment at the time of the offending. There was no medical diagnosis of dementia or significant cognitive impairment. The family doctor, who had provided a character reference, had made no mention of dementia or cognitive issues. In those circumstances it is submitted the appropriate category should have been culpability A because there had been a significant degree of planning and organisation to attend the property of the victim armed with dangerous weapons, specifically looking for him and acting in vengeance on behalf of another. There was targeting, it is submitted, of a vulnerable victim. It is common ground that the harm fell into category 1. Accordingly, the appropriate starting point was 10 years' custody with a range of 9 to 13 years.

Secondly, Ms Newcombe criticises the balance struck by the judge between the aggravating and mitigating factors. Correcting one aspect of the written Final Reference, she accepts that the aggravating features did not include a weapon carried when entering the premises because that has already been factored into the sentencing process. But she submits that there were the aggravating factors of the offence being committed in a dwelling and there being a vulnerable victim. She accepts there were the following mitigating factors: no relevant previous convictions; remorse; positive good character; physical disability requiring long-term treatment and mental disorder were not linked to the commission of the offence if this has not already been accounted for in characterisation of culpability. She accepts that if this had been placed within category 1A the judge might have been justified in taking the notional sentence to the bottom of the category range but not below that. She submits, on the other hand, that if the judge was entitled to place the offending within category 1B, then in substance this is already been taken into account in the categorisation and so there would not have been a justification for reducing the notional sentence in the category range to take account of mitigation.

Ms Newcombe also accepts that full credit of one-third was appropriate. She does submit that the judge fell into error by giving the offender full credit on the section 18 offence because there was no indication of a guilty plea to that offence at the Magistrates' Court. But she accepts that this did not affect the overall length of the sentence.

Submissions on behalf of the respondent

On behalf of the respondent Mr Sands accepts the harm fell into category 1. He does not resile from the position which he adopted before the sentencing court that culpability fell into category A, although he vigorously submits that it fell at the lower end of that category. However he goes on to submit, both in writing and at this hearing, that the judge had to make the assessment, whatever the parties before him submitted, and that the judge was entitled to take the view that this case fell into category 1B. Mr Sands submits the judge was clearly troubled as to the overall state of mind of the respondent and although he accepted that there was some planning, he was entitled to conclude that it was not such as to fall into category A. This was an incident which had occurred on the day of the offending. The respondent, he submits, had not been recruited to commit the offence. Albeit there was some degree of planning, it was not sophisticated, as some cases are, in which, for example, there has been days or weeks of planning. Mr Sands accepts that no reference was made to the guideline for Sentencing Offenders with Mental Disorders etc. It is also correct that there was no formal medical evidence but he points out that there was the Liaison and Diversion report which referred to potential mental health concerns. He submits that it was open to the judge to draw common sense conclusions from all the information he had in front of him, in particular, this respondent had acted profoundly out of character on the day in question. Character references suggested that his behaviour was so out of character that he was not himself at the time of the offending.

Mr Sands also submits that the mitigating features in the case significantly outweigh the aggravating ones. The judge did not err when giving them the weight that he did. The defendant is 74 years old. He had been in gainful employment for 59 of those years. He suffers from physical ailments which would make his time in custody increasingly more onerous. This was his first custodial sentence. Through his guilty pleas he had demonstrated there was genuine regret and remorse.

At the hearing before this Court, Mr Sands has sought to bring us up-to-date by reference to the respondent's experience in prison. There has been, admittedly, one minor transgression. But on the other side of the balance Mr Sands submits the respondent has indeed found prison conditions to be particularly onerous, particularly in a Victorian prison in the middle of winter. We were informed, for example, that the boiler has not been working for the last few weeks. The respondent has a history, he says, of being vulnerable to frostbite. Although he is grateful for the medical assistance he has been given, the impact is serious upon his health. Further, Mr Sands submits there is an impact which is disproportionate on his wife who, for example, has recently had to go to hospital and does not have access to other sources of support such as children or friends.

Mr Sands acknowledges that whether or not full credit was appropriate on the section 18 offence is academic given that that was to be a concurrent sentence. It is common ground that overall full credit was due.

Mr Sands concedes that there should have been sentences announced for the possession of the weapons albeit such sentences should be concurrent. He accepts, by reference to the relevant guidelines, that the axe offence fell into category 1A and that the firearm offence fell into category 2A, although he points out that there was not in fact a pellet in the air pistol. Nevertheless, he acknowledges that the victim would not have known that and the weapon was discharged.

Our assessment

The judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentence.

A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate.

Leave to refer a sentence should only be granted by this Court in exceptional circumstances and not in borderline cases.

Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into gross error..."

Turning to this case, this was, on any view, a difficult sentencing exercise which the judge sought to carry out with care and sensitivity. He was faced with a serious case of violence against the victim in his own home, with the use of an axe and an imitation firearm. There was also an element of vigilantism in this case, something which a society governed by the rule of law cannot tolerate. On the other hand, the respondent had reached the age of 74 and this offending appeared to be completely out of character.

We do not accept the submissions advanced on behalf of the Solicitor General in their entirety but we have reached the conclusion that the total sentence passed in this case was unduly lenient. As we have said, it is not the function of this Court on an application under section 36 of the 1988 Act, simply to sentence the respondent again. Matters of assessment and evaluation are primarily for the sentencing court. Accordingly, we consider that the judge was entitled to place the aggravated burglary in category 1B rather than category 1A. However, the starting point for a category 1B offence by itself is 8 years’ custody, with a range of six to 11 years. The judge concluded that the notional sentence after trial would have been at the bottom of that range (6 years). We consider that was too low. Apart from the circumstances of the lead offence itself account had to be taken of the fact there were other offences on which sentence had to be passed, albeit it was correct to make those sentences concurrent. The sentence on the lead offence then had to be sufficient to reflect the overall gravity of the offending.

Further, as is conceded on behalf of the respondent, it was wrong in principle to impose no separate penalty on the two offences of possession of a weapon. We consider that those offences in their own right were serious examples of that kind of offending and sentences of imprisonment should have been imposed on each count although they would have had to be made concurrent to the sentence on the lead count.

On count 2, possessing an imitation firearm with intent to cause fear of violence, we have concluded that the appropriate sentence should have been one of 2 years' imprisonment. On count 4, having an article with a blade or point, we have concluded that the sentence on that should have been 18 months' imprisonment.

Conclusion

Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.