Saturday, 27 July 2013

Sergeant Danny Nightingale ~ A look at his Sentencing

After a retrial, the Court Martial sentenced Sergeant Danny Nightingale to 2 years detention suspended for 12 months.  The sentencing remarks of the Judge Advocate General are HERE.

Previous posts have followed the interesting twists and turns of the case - 21st November 2012 - 30th June 2013 and 2nd July 2013

In 2012, pleaded guilty to charges of possession of a Glock pistol and also possession of ammunition.  He was sentenced to 18 months detention.  In passing this sentence, the court martial found that there were 'exceptional circumstances' to disapply the 5 year minimum sentence normally applicable to possession of a firearm.  Sgt. Nightingale was also given discount for his guilty plea.   On the 2012 sentence see post of 21st November 2012



Nightingale appealed his original sentence to the Court Martial Appeal Court and it was reduced to 12 months (suspended for 12 months).   Here is the judgment of the Court Martial Appeals Court - Lord Judge CJ; Fulford and Bean JJ - 29th November 2012

In March 2013, Sgt. Nightingale's conviction was quashed - (judgment - Lord Judge CJ; MacKay and Sweeney JJ)- and a retrial ordered.  The conviction was quashed because of an unsolicited sentence indication by the trial judge - Judge McGrigor (Assistant Judge Advocate General) - which, the appeal judges held, placed undue pressure on the defendant to plead guilty. 

The retrial was held in July 2013 and Nightingale was again convicted and, this time, sentenced to 2 years detention (suspended for 12 months).  The causal observer might well ask why was the Court Martial sentence after the retrial double that thought suitable by the Court Martial Appeal Court when deciding the appeal against the original sentence.  To try to explain this, it is necessary to turn to the sentencing remarks.

The sentencing remarks:

The Judge Advocate General (JAG) began by explaining the rationale behind the 5 year minimum sentence which normally applies.  (For myself, I did not think that references to events like Dunblane and Hungerford were particularly helpful but, the fact remains, there are plenty of firearms on British streets).  The JAG then said that although Nightingale was not a danger to society, what he had done had endangered society.  (There is always a risk that a firearm might get into the wrong hands).

The JAG then went on to criticise some of the reporting - 'much uninformed and misinformed public debate' - and he said that some of this bordered on contempt of court.  The JAG asserted that criticism of the prosecution and of the Army were 'unmerited and without foundation.'   Nightingale was not a scapegoat and such a suggestion was 'absolute nonsense.'

[Comment:  the decision to prosecute the case in the first place cannot be properly criticised.  Action has to be taken to prevent weapons and ammunition leaking from the military to people outside the services.  It is highly likely that this policy also made it essential for the service prosecution authority to proceed with the retrial.  IF it is true - (and I do not say it is) - that some recent laxness existed within the army about soldiers holding weapons, then a process of tightening up was clearly necessary.  The original trial fell to be criticised because of the way that the guilty plea came about but this matter was corrected by the court martial appeal court].

Returning to the sentencing remarks.  A problem for Nightingale was that he changed his story from one of having been given the gun by Iraqis to it now having been put in his room by a friend (Soldier N) but without Nightingale's knowledge.  This latter story was criticised by the JAG and the court martial held that Nightingale knew of the gun and the ammunition.  The JAG referred to medical opinion evidence to the effect that Nightingale had not 'confabulated' his account which, in the court's opinion, lacked credibility and was not believed.

[Note: Confabulation is a memory disturbance, defined as the production of fabricated, distorted or misinterpreted memories about oneself or the world, without the conscious intention to deceive. Confabulation is distinguished from lying as there is no intent to deceive and the person is unaware the information is false].

The starting point for sentence was the minimum sentence of 5 years but, according to the JAG, there were exceptional circumstances: distinguished service; working to improve medical care (the 'Nightingale' dressing); brain injury and lack of criminal intent.

[Comment: Whether these matters ought to amount to exceptional circumstances is debatable - see Attorney-General's reference 82 of 2012 - where what amounts to exceptional circumstances is set out.  However, in Nightingale's appeal to the court-martial appeal court, the judges agreed that exceptional circumstances existed.  Thus, there may be some conflict between Nightingale's case and the strict law as stated in the AG Reference].

Basically, the court could not pass a greater sentence than that passed at the first trial - i.e. 18 months for possession of the gun and 6 months for possession of the ammunition - sentences to be concurrent.  However, the sentences at the first trial were passed after guilty pleas and account was taken of cooperation with the authorities and Nightingale's expressed remorse.  At the retrial, Nightingale was no longer entitled to a reduction for a guilty plea.   Also, the JAG noted, sentencing after the first court martial (and in the court martial appeal court) was before Nightingale had put forward a spurious defence falsely impugning the character of a fellow soldier and requiring other soldiers to risk their security by giving evidence.  On this basis, the JAG concluded that an appropriate sentence was 2 years for the possession of the weapon and 9 months for ammunition (concurrent).  On the basis of R v Skanes [2006] EWCA Crim 2309 this sentence was said to be justifiable. (Unfortunately, this case is not available online).

[Comment: whether the case of Skanes entitles the court martial to go beyond the 18 months imposed by the original court martial is questionable.  I believe that the JAG made a separate ruling on this point which is not (yet) publicly available.  It would be preferable for all pre-trial rulings to be made available at the earliest possible stage if 'uninformed and misinformed' public debate is to be avoided].


The JAG next referred to principles of sentencing in the Armed Forces Act 2006 s.237.  Whilst a sentence of immediate detention was justified, the JAG said that the court martial 'felt constrained' by the views of the court martial appeal court to suspend the sentence.  (This looks like a carefully chosen form of wording to express unhappiness with the court martial appeal court's earlier decision to suspend the detention).  The suspension of the sentence by the court martial appeal court was for much the same reasons as the finding of exceptional circumstances.

The Army is, I suspect, vindicated in their determination to bring the prosecution in order to uphold service discipline and to try to prevent leakage of firearms and ammunition.  The minimum 5 year sentence provision relating to firearms was put there by Parliament for the best of reasons but the question of what should amount to exceptional circumstances is now somewhat clouded by the Nightingale case which must inevitably be compared with the Attorney-General's Reference 82 of 2012.   Whether it would be better not to have the minimum sentence provision and allow the courts to sentence in the more usual manner is a point for debate but, as things stand, Parliament has spoken.

Nightingale would be entitled to appeal either his conviction or his sentence but the sentence is far below the usual minimum of 5 years and it may be that Nightingale should consider himself lucky.  It is reported that the proceedings have already cost him in the region of £120,000.  Whether there will be any such appeals remains to be seen.  If there were to be an appeal on sentence, the judges would have to square up to precisely what is meant by 'exceptional circumstances' in the legislation.

Other links:

Please also see the interesting view of former Lt. Col. Tim Collins who argues that this whole matter could have been handled more adroitly and out of the public gaze.  Collins argues that Nightingale is a damaged veteran who needed support and understanding.  However, as reported by the Times (see post of 2nd July), it seems that the Army was keen to stop a 'culture of impunity' regarding possession of weapons.

Colonel Collins also states - 'The Army’s legal system comes into the spotlight, too. The European judges are watching. They would like to take it from us. But we do need military courts, as we actually fight wars, unlike the Europeans. Still, we should eschew the limelight where we can. The two Nightingale trials have had the opposite effect.'

I do not think it is true to say that the European judges wish to take away military justice but the European Convention on Human Rights has brought about beneficial changes to that system.  For example, it now operates much more independently of the military chain of command.  This was referred to in the post of 30th June 2013.

A further interesting view is on the Adrian Weale blog - Sgt Danny Nightingale.  This author comments about Britain’s gun laws.

'The minimum sentencing guidelines for illegal possession of firearms were brought in to deter criminals from acquiring and using firearms for the commission of crime.  Even his harshest critics have not accused Sergeant Nightingale, or his former housemate, of intending to use their illegal guns to stick up Sub-Post Offices yet courts are obliged to treat them as if they were.  This is ludicrous.  Sergeant Nightingale and his colleague made gross errors of judgement which deserved condign punishment but that punishment needs to be kept in the context of how and why they acquired the weapons and ammunition and what they intended to do with them: these were not ‘gangstas’ intent on crimes of violence. 

A 12 month suspended sentence strikes me as lenient but I certainly don’t begrudge it. I do hope this will be seen as a precedent for all soldiers convicted in similar circumstances, not just members of the SAS, and I’d suggest that now might be the time for the Ministry of Justice to revisit the minimum sentence guidelines for illegal firearms possession in order to give judges far more latitude to take circumstances into account when sentencing.'


Relevant legislation:

Firearms Act 1968 section 5(1)(aba)

Possession of Ammunition contrary to Firearms Act 1968 section 1(1)(b).

The offence under section 1(1)(aba) carries a mandatory sentence of imprisonment 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 not imposing this - see Firearms Act 1968 section 51A.  

Summary

History - Original conviction following guilty plea quashed. Re-tried and convicted after trial.
Sentence - 2 years detention, suspended for 12 months.
Sentencing Remarks:-
I intend to make some general observations about this case before addressing you on sentence.
Possession of a firearm is a very serious offence and it is aggravated when ammunition is with the firearm. Parliament has decreed that a person who unlawfully possesses a prohibited firearm such as a Glock pistol should be sentenced to a minimum term of five years imprisonment. That term may only be reduced if there are exceptional circumstances. It is obvious why this policy exists: there have been a number of atrocities such as Hungerford and Dunblane where someone with a gun has murdered innocent members of the public including children. That means that even where someone has no criminal intent, but he possesses a prohibited and unlicensed firearm, particularly where it is not secure, then the law treats him severely. Severe sentences are designed to act as a deterrent – that is what the public and Parliament demand.
It is because the unlawful possession of a firearm endangers society that even where mitigation appears very strong significant sentences are still appropriate. There are many examples of such cases. For instance in 2006 a defendant called Blackall had been shot and rendered a paraplegic by an unknown gunman who was never identified. On a further occasion a man knocked at the defendant’s front door and put a gun to his head. He reported this to the police but no one was apprehended. He kept a loaded revolver thereafter for his own protection. Four months later the police came to his house and he told them where his gun was. His exceptional circumstances were taken into account to reduce the sentence of five years to three years imprisonment.
The law applies to everyone even those with an impeccable character and a history of exceptional public service. A weapon is dangerous in the wrong hands whether it originates from someone with no criminal intent who is careless or from someone with baser motives. It has been said, and it is right, that you are not a danger to society. However, what you have done has endangered society and for that reason your offending is serious.
While this case has proceeded – and was sub judice – many people including you have made numerous public statements, many of which were misleading. As a result there has been much uninformed and misinformed public debate. Much of what has been said bordered on contempt and has not helped the course of justice. The criticism of the prosecution and the Army is unmerited and totally without foundation. We understand how difficult these proceedings have been for you and your family. However, you have brought much of that anguish upon yourself and your public assertions that you are a scapegoat or the victim of some wider political agenda is absolute nonsense. You are simply someone against whom there was a strong prima facie case of serious wrongdoing and, given the dangers to society caused by illegal firearms and their misuse, it was in the public interest to prosecute you. The Service Prosecuting Authority would have been neglecting its duty if it had not brought this prosecution.
You have now had a fair trial before a civilian judge and an independent and impartial Board. All of the issues you wished to raise and all of the submissions you wished to make have been fully considered and verdicts properly given. It would have made no difference had you been tried before a civilian jury – the evidence against you was overwhelming and I have no doubt the verdicts would have been the same.
I trust that those who have been so critical of the Service Prosecuting Authority and the Court Martial process – particularly those who made unfounded and uniformed remarks under the cloak of Parliamentary privilege – now realise how inappropriate and wrong their criticisms were.
Now to sentence
This board has found you guilty of the two charges of possessing a Glock 9mm and 338 rounds of ammunition, over 120 of which fitted the Glock. You originally said that you received the pistol as a gift in Iraq and you accumulated the ammunition in your capacity as a range officer. You maintained that account until relatively recently when you said that your admissions were false and that you had confabulated them. In fact, you said, you never possessed the weapon or ammunition – you are too meticulous a soldier to have done that – and the weapon and ammunition must have been put in your room by your former best friend and housemate Soldier N. You asserted that you were never aware of their presence in your room. You and Soldier N trained together, have been through operations together and were best friends. Yet you suggested he was prepared to throw that friendship away by putting you in jeopardy of being dismissed from the Army and sent to prison, and that his motive for not accepting responsibility for the Glock and ammunition found in your room was to lessen his own criminality so that he received a shorter sentence.
This court has rejected that explanation. The court does not accept that you confabulated about the weapon and ammunition. Having heard all of the evidence – not just the neuropsychologist and neuropsychiatrist - the court was sure that you did not confabulate and that you did know the weapon and ammunition were in your room and how they got there. They observed you when you were interviewed by the police and when you gave evidence in court. They took account of the evidence of soldiers who have served with you on operations since your brain injury and your two most recent professional assessments and concluded that there is no evidence of confabulation. Importantly the court accepts the evidence that you would not have been able to undertake the operational tasks that you completed after your return to service if you truly had the mental dysfunction you now say you have.
In coming to that conclusion the Court accepted Dr Joseph’s concern about the difference in memory test results between those administered by Dr Young and Professor Gudjonnson, and his conclusion that if you had been confabulating you would still have had the memory albeit it would have been a false memory. Dr Joseph said that your assertions that you cannot remember obtaining the pistol and ammunition in the way you described is inconsistent with a diagnosis of confabulation and this demonstrates that your account has been contaminated by the legal process. The court accepted Dr Johnson’s expert opinion and agreed with his conclusions. In short, the account you gave to this court lacks credibility and the court does not believe you.
It does not matter for these circumstances how you got the Glock – whether it was in fact given to you by grateful Iraqis or whether it came into your possession in some other way. The court concluded that you knew it was in your wardrobe – it was with your clothes and it is inconceivable that you did not know it was there. Equally it is inconceivable that you did not know you had such a large cache of ammunition. It was in a transparent box which also contained items of stationery and which you accepted was your admin box. The Court concluded that you accumulated this ammunition when acting as a range officer and you placed it in your admin box as you originally described to the police.
Your SSSA was not secure. It was a normal semi detached house in suburbia, and it was left empty for much of the time. This could have been a tempting target for burglars – and if there had been a burglary and the weapon and ammunition had been taken, the consequences could have been terrible and terrifying. A number of military weapons do somehow end up in the criminal community and any thing that makes that dangerous transfer easier – such as leaving a weapon and ammunition unsecured – must be deterred.
You deal with weapons routinely both at home and abroad and you are required to be expert with them. While not an excuse the Court accepts that weapons are a normal part of your life and you would not have held them in the sort of awe which civilians would. It is this attitude, however, which must be guarded against because it leads to the sort of laxness you have demonstrated.
The starting point for the sentence for the first charge would be five years imprisonment. There is no doubt that there are exceptional circumstances in this case and I have already indicated in a previous ruling that this court may not pass a sentence which is more severe than the original sentence passed at your first trial. Those original sentences were 18 months detention for the first charge of possessing a firearm and 6 months detention for possession of ammunition, although this court could make the overall term longer without it being more severe because you received the benefit of guilty pleas at that hearing which you are not entitled to here.
The exceptional circumstances in this case are as follows:
1. You were an outstanding Senior NCO who has served with distinction in the elite regiment of the British Army. You have served on a number of operational deployments where your conduct has been exceptional;
2. Not only have you done your duty, but you have also done more to improve the medical care of those who receive traumatic injury by developing the Nightingale dressing;
3. You suffered a brain injury in 2009 which has had some effect upon you – while the court has rejected your assertions of confabulation about the pistol and ammunition we accept that you do have some mental impairment which may have affected the way you failed to decommission the pistol or return the ammunition;
4. You had no criminal intention – you found yourself in this position because of poor administrative practices and possibly forgetfulness.
The court at your original trial would have had all of these matters in their minds when they determined that the appropriate sentence for Charge 1 was 18 months detention. The Court Martial Appeal Court determined that 18 months was too long and they substituted a suspended term of 12 months detention. However, in determining that sentence both the original court and their Lordships gave you credit for your plea of guilty, your co-operation with the authorities and your expressed remorse. At that stage you had not made up a spurious defence which falsely impugned the character of a fellow soldier and caused a number of SAS soldiers to risk their own security in giving evidence. Had their Lordships dealt with you after a trial in these circumstances I have no doubt they would not have been so lenient. None of those mitigating factors are present as we sentence today and you can claim no credit for them. In those circumstances the appropriate sentence is 2 years’ detention. This is not a sentence of greater severity than your original sentence of 18 months detention for the reasons expressed in R v Skanes [2006] EWCA Crim 2309.
We have undertaken the same exercise in relation to Charge 2 and determined that the appropriate sentence is 9 months detention. Those sentences shall be served concurrently so that the overall sentence is one of 2 years detention. This is the same sentence as Sergeant N: his cache was larger than yours and contained a live hand grenade but he had the benefit of a plea of guilty which he tendered at the earliest opportunity. Your sentence would have been shorter had you also pleaded guilty, to reflect the smaller and more limited cache.
We have examined whether this sentence should be suspended and referred to the JAG sentencing guide paragraph 3.4.9 and the principles of sentencing in the Armed Forces Act 2006 s237. That section imposes a duty on the court to follow the six purposes of sentencing: punishment of offenders, maintenance of discipline, reduction of service offences and other crime (including reduction by deterrence), the reform and rehabilitation of offenders, the protection of the public and the making of reparation. Their Lordships in the Court Martial Appeal Court were satisfied that the sentence they imposed could be suspended without compromising those purposes because of your exceptional character, your conduct which went above and beyond that required of a SNCO (such as in relation to the development of the Nightingale dressing) and the exceptional circumstances of this case. In our opinion the seriousness of this case does merit an immediate custodial sentence but we feel constrained by the decision of their Lordships. In those circumstances we have decided that the sentences passed should both be suspended for a period of 12 months.
The weapon and ammunition has been seized by competent military authorities. We order that the useable ammunition be brought back on charge with the balance being destroyed. We order that the Glock pistol be forfeit and destroyed.
- See more at: http://www.crimeline.info/case/r-v-sergeant-danny-harold-nightingale-no-4#sthash.OHHUlCOb.dpuf

Summary

History - Original conviction following guilty plea quashed. Re-tried and convicted after trial.
Sentence - 2 years detention, suspended for 12 months.
Sentencing Remarks:-
I intend to make some general observations about this case before addressing you on sentence.
Possession of a firearm is a very serious offence and it is aggravated when ammunition is with the firearm. Parliament has decreed that a person who unlawfully possesses a prohibited firearm such as a Glock pistol should be sentenced to a minimum term of five years imprisonment. That term may only be reduced if there are exceptional circumstances. It is obvious why this policy exists: there have been a number of atrocities such as Hungerford and Dunblane where someone with a gun has murdered innocent members of the public including children. That means that even where someone has no criminal intent, but he possesses a prohibited and unlicensed firearm, particularly where it is not secure, then the law treats him severely. Severe sentences are designed to act as a deterrent – that is what the public and Parliament demand.
It is because the unlawful possession of a firearm endangers society that even where mitigation appears very strong significant sentences are still appropriate. There are many examples of such cases. For instance in 2006 a defendant called Blackall had been shot and rendered a paraplegic by an unknown gunman who was never identified. On a further occasion a man knocked at the defendant’s front door and put a gun to his head. He reported this to the police but no one was apprehended. He kept a loaded revolver thereafter for his own protection. Four months later the police came to his house and he told them where his gun was. His exceptional circumstances were taken into account to reduce the sentence of five years to three years imprisonment.
The law applies to everyone even those with an impeccable character and a history of exceptional public service. A weapon is dangerous in the wrong hands whether it originates from someone with no criminal intent who is careless or from someone with baser motives. It has been said, and it is right, that you are not a danger to society. However, what you have done has endangered society and for that reason your offending is serious.
While this case has proceeded – and was sub judice – many people including you have made numerous public statements, many of which were misleading. As a result there has been much uninformed and misinformed public debate. Much of what has been said bordered on contempt and has not helped the course of justice. The criticism of the prosecution and the Army is unmerited and totally without foundation. We understand how difficult these proceedings have been for you and your family. However, you have brought much of that anguish upon yourself and your public assertions that you are a scapegoat or the victim of some wider political agenda is absolute nonsense. You are simply someone against whom there was a strong prima facie case of serious wrongdoing and, given the dangers to society caused by illegal firearms and their misuse, it was in the public interest to prosecute you. The Service Prosecuting Authority would have been neglecting its duty if it had not brought this prosecution.
You have now had a fair trial before a civilian judge and an independent and impartial Board. All of the issues you wished to raise and all of the submissions you wished to make have been fully considered and verdicts properly given. It would have made no difference had you been tried before a civilian jury – the evidence against you was overwhelming and I have no doubt the verdicts would have been the same.
I trust that those who have been so critical of the Service Prosecuting Authority and the Court Martial process – particularly those who made unfounded and uniformed remarks under the cloak of Parliamentary privilege – now realise how inappropriate and wrong their criticisms were.
Now to sentence
This board has found you guilty of the two charges of possessing a Glock 9mm and 338 rounds of ammunition, over 120 of which fitted the Glock. You originally said that you received the pistol as a gift in Iraq and you accumulated the ammunition in your capacity as a range officer. You maintained that account until relatively recently when you said that your admissions were false and that you had confabulated them. In fact, you said, you never possessed the weapon or ammunition – you are too meticulous a soldier to have done that – and the weapon and ammunition must have been put in your room by your former best friend and housemate Soldier N. You asserted that you were never aware of their presence in your room. You and Soldier N trained together, have been through operations together and were best friends. Yet you suggested he was prepared to throw that friendship away by putting you in jeopardy of being dismissed from the Army and sent to prison, and that his motive for not accepting responsibility for the Glock and ammunition found in your room was to lessen his own criminality so that he received a shorter sentence.
This court has rejected that explanation. The court does not accept that you confabulated about the weapon and ammunition. Having heard all of the evidence – not just the neuropsychologist and neuropsychiatrist - the court was sure that you did not confabulate and that you did know the weapon and ammunition were in your room and how they got there. They observed you when you were interviewed by the police and when you gave evidence in court. They took account of the evidence of soldiers who have served with you on operations since your brain injury and your two most recent professional assessments and concluded that there is no evidence of confabulation. Importantly the court accepts the evidence that you would not have been able to undertake the operational tasks that you completed after your return to service if you truly had the mental dysfunction you now say you have.
In coming to that conclusion the Court accepted Dr Joseph’s concern about the difference in memory test results between those administered by Dr Young and Professor Gudjonnson, and his conclusion that if you had been confabulating you would still have had the memory albeit it would have been a false memory. Dr Joseph said that your assertions that you cannot remember obtaining the pistol and ammunition in the way you described is inconsistent with a diagnosis of confabulation and this demonstrates that your account has been contaminated by the legal process. The court accepted Dr Johnson’s expert opinion and agreed with his conclusions. In short, the account you gave to this court lacks credibility and the court does not believe you.
It does not matter for these circumstances how you got the Glock – whether it was in fact given to you by grateful Iraqis or whether it came into your possession in some other way. The court concluded that you knew it was in your wardrobe – it was with your clothes and it is inconceivable that you did not know it was there. Equally it is inconceivable that you did not know you had such a large cache of ammunition. It was in a transparent box which also contained items of stationery and which you accepted was your admin box. The Court concluded that you accumulated this ammunition when acting as a range officer and you placed it in your admin box as you originally described to the police.
Your SSSA was not secure. It was a normal semi detached house in suburbia, and it was left empty for much of the time. This could have been a tempting target for burglars – and if there had been a burglary and the weapon and ammunition had been taken, the consequences could have been terrible and terrifying. A number of military weapons do somehow end up in the criminal community and any thing that makes that dangerous transfer easier – such as leaving a weapon and ammunition unsecured – must be deterred.
You deal with weapons routinely both at home and abroad and you are required to be expert with them. While not an excuse the Court accepts that weapons are a normal part of your life and you would not have held them in the sort of awe which civilians would. It is this attitude, however, which must be guarded against because it leads to the sort of laxness you have demonstrated.
The starting point for the sentence for the first charge would be five years imprisonment. There is no doubt that there are exceptional circumstances in this case and I have already indicated in a previous ruling that this court may not pass a sentence which is more severe than the original sentence passed at your first trial. Those original sentences were 18 months detention for the first charge of possessing a firearm and 6 months detention for possession of ammunition, although this court could make the overall term longer without it being more severe because you received the benefit of guilty pleas at that hearing which you are not entitled to here.
The exceptional circumstances in this case are as follows:
1. You were an outstanding Senior NCO who has served with distinction in the elite regiment of the British Army. You have served on a number of operational deployments where your conduct has been exceptional;
2. Not only have you done your duty, but you have also done more to improve the medical care of those who receive traumatic injury by developing the Nightingale dressing;
3. You suffered a brain injury in 2009 which has had some effect upon you – while the court has rejected your assertions of confabulation about the pistol and ammunition we accept that you do have some mental impairment which may have affected the way you failed to decommission the pistol or return the ammunition;
4. You had no criminal intention – you found yourself in this position because of poor administrative practices and possibly forgetfulness.
The court at your original trial would have had all of these matters in their minds when they determined that the appropriate sentence for Charge 1 was 18 months detention. The Court Martial Appeal Court determined that 18 months was too long and they substituted a suspended term of 12 months detention. However, in determining that sentence both the original court and their Lordships gave you credit for your plea of guilty, your co-operation with the authorities and your expressed remorse. At that stage you had not made up a spurious defence which falsely impugned the character of a fellow soldier and caused a number of SAS soldiers to risk their own security in giving evidence. Had their Lordships dealt with you after a trial in these circumstances I have no doubt they would not have been so lenient. None of those mitigating factors are present as we sentence today and you can claim no credit for them. In those circumstances the appropriate sentence is 2 years’ detention. This is not a sentence of greater severity than your original sentence of 18 months detention for the reasons expressed in R v Skanes [2006] EWCA Crim 2309.
We have undertaken the same exercise in relation to Charge 2 and determined that the appropriate sentence is 9 months detention. Those sentences shall be served concurrently so that the overall sentence is one of 2 years detention. This is the same sentence as Sergeant N: his cache was larger than yours and contained a live hand grenade but he had the benefit of a plea of guilty which he tendered at the earliest opportunity. Your sentence would have been shorter had you also pleaded guilty, to reflect the smaller and more limited cache.
We have examined whether this sentence should be suspended and referred to the JAG sentencing guide paragraph 3.4.9 and the principles of sentencing in the Armed Forces Act 2006 s237. That section imposes a duty on the court to follow the six purposes of sentencing: punishment of offenders, maintenance of discipline, reduction of service offences and other crime (including reduction by deterrence), the reform and rehabilitation of offenders, the protection of the public and the making of reparation. Their Lordships in the Court Martial Appeal Court were satisfied that the sentence they imposed could be suspended without compromising those purposes because of your exceptional character, your conduct which went above and beyond that required of a SNCO (such as in relation to the development of the Nightingale dressing) and the exceptional circumstances of this case. In our opinion the seriousness of this case does merit an immediate custodial sentence but we feel constrained by the decision of their Lordships. In those circumstances we have decided that the sentences passed should both be suspended for a period of 12 months.
The weapon and ammunition has been seized by competent military authorities. We order that the useable ammunition be brought back on charge with the balance being destroyed. We order that the Glock pistol be forfeit and destroyed.
- See more at: http://www.crimeline.info/case/r-v-sergeant-danny-harold-nightingale-no-4#sthash.OHHUlCOb.dpuf
entencing Remarks:-
I intend to make some general observations about this case before addressing you on sentence.
Possession of a firearm is a very serious offence and it is aggravated when ammunition is with the firearm. Parliament has decreed that a person who unlawfully possesses a prohibited firearm such as a Glock pistol should be sentenced to a minimum term of five years imprisonment. That term may only be reduced if there are exceptional circumstances. It is obvious why this policy exists: there have been a number of atrocities such as Hungerford and Dunblane where someone with a gun has murdered innocent members of the public including children. That means that even where someone has no criminal intent, but he possesses a prohibited and unlicensed firearm, particularly where it is not secure, then the law treats him severely. Severe sentences are designed to act as a deterrent – that is what the public and Parliament demand.
It is because the unlawful possession of a firearm endangers society that even where mitigation appears very strong significant sentences are still appropriate. There are many examples of such cases. For instance in 2006 a defendant called Blackall had been shot and rendered a paraplegic by an unknown gunman who was never identified. On a further occasion a man knocked at the defendant’s front door and put a gun to his head. He reported this to the police but no one was apprehended. He kept a loaded revolver thereafter for his own protection. Four months later the police came to his house and he told them where his gun was. His exceptional circumstances were taken into account to reduce the sentence of five years to three years imprisonment.
The law applies to everyone even those with an impeccable character and a history of exceptional public service. A weapon is dangerous in the wrong hands whether it originates from someone with no criminal intent who is careless or from someone with baser motives. It has been said, and it is right, that you are not a danger to society. However, what you have done has endangered society and for that reason your offending is serious.
While this case has proceeded – and was sub judice – many people including you have made numerous public statements, many of which were misleading. As a result there has been much uninformed and misinformed public debate. Much of what has been said bordered on contempt and has not helped the course of justice. The criticism of the prosecution and the Army is unmerited and totally without foundation. We understand how difficult these proceedings have been for you and your family. However, you have brought much of that anguish upon yourself and your public assertions that you are a scapegoat or the victim of some wider political agenda is absolute nonsense. You are simply someone against whom there was a strong prima facie case of serious wrongdoing and, given the dangers to society caused by illegal firearms and their misuse, it was in the public interest to prosecute you. The Service Prosecuting Authority would have been neglecting its duty if it had not brought this prosecution.
You have now had a fair trial before a civilian judge and an independent and impartial Board. All of the issues you wished to raise and all of the submissions you wished to make have been fully considered and verdicts properly given. It would have made no difference had you been tried before a civilian jury – the evidence against you was overwhelming and I have no doubt the verdicts would have been the same.
I trust that those who have been so critical of the Service Prosecuting Authority and the Court Martial process – particularly those who made unfounded and uniformed remarks under the cloak of Parliamentary privilege – now realise how inappropriate and wrong their criticisms were.
- See more at: http://www.crimeline.info/case/r-v-sergeant-danny-harold-nightingale-no-4#sthash.iB2EzEGh.dpuf

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