Agent operation and sentencing for attempted weapons possession

Case no. 48/2022
Judgment delivered on 15 February 2023

The Prosecution Service
vs.
T1
T2
T3
and
T4

The High Court had found the four defendants (T1, T2, T3 and T4) guilty of attempted pos-session of a large quantity of weapons under particularly aggravating circumstances.

T1 had ordered the weapons at issue in counts 1 and 2 of the case on the Dark Web, where agents from the US Homeland Security Investigations (HSI) had advertised weapons for sale on the “Berlusconi” marketplace as part of their investigation of gun crime. T2 had acted as a courier in count 1, while T3 and T4 had acted as couriers in count 2.

The HSI agents had contacted Danish police and was now collaborating with them. The agent operation that was then carried out by agents in Denmark under court orders involved the practical arrangements for the delivery of the weapons that T1 ordered from the HSI agents.

The Supreme Court stated that a key point to consider in the case, both under the provisions of the Danish Administration of Justice Act on agent operations and under Article 6 of the European Convention on Human Rights, is whether the agent operation carried out incited the defendants to commit an offence that would otherwise not have been committed, and whether the agent operation aggravated the extent or seriousness of the offence.

The Supreme Court agreed with the High Court that the HSI agents had not incited T1 to purchase weapons and ammunition that he would otherwise not have purchased or to purchase more than he otherwise would. The Supreme Court also agreed that none of the defendants had been made subject to an agent operation in contravention of the prohibition of incitement in the Administration of Justice Act and Article 6 of the ECHR.

In the fixing of T1’s sentence, the Supreme Court gave importance to the fact that he had been found guilty of two counts of attempted illegal trade in a large quantity of weapons and ammunition. These were serious offences of a professional and organised nature, in which he had played a leading role. The Supreme Court did not find any basis for applying the special provision in the second sentence of Section 88(1) of the Danish Criminal Code, according to which the maximum penalty may be exceeded in particularly aggravating circumstances. The Supreme Court sentenced T1 to imprisonment for eight years.

In the fixing of T2’s. T3’s and T4’s sentences, the Supreme Court considered the nature and seriousness of their offences. The Supreme Court also referred to the quantity of weapons and their roles as couriers, including that T4 had played a less active part. The Supreme Court sentenced T2 and T3 to imprisonment for five years, and T4 to four years.

The High Court had sentenced T1 to imprisonment for seven years, T2 and T3 to four years, and T4 to three years.