England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Friday 13th November 1998

B E F O R E :

LORD JUSTICE POTTER

MR JUSTICE ALLIOTT

and

MR JUSTICE MOSES

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R E G I N A

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SHARON BENSON

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

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(Official Shorthand Writers to the Court)

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MR J COOPER appeared on behalf of the APPLICANT

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JUDGMENT

( As approved by the Court )

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Crown Copyright

Friday 13th November 1998

MR JUSTICE MOSES: On 12th June 1998 this applicant was sentenced to five years' imprisonment for an offence of arson, she being reckless as to whether life was endangered. A trial had earlier taken place in relation to a charge of manslaughter. She was acquitted of manslaughter. She renews her application for leave to appeal against that sentence of five years' imprisonment after refusal by the single judge.

The facts which we need to outline are as follows. The applicant had had a quarrel with her boyfriend, who was threatening to leave her. She was clearly upset and had been drinking with her boyfriend, who issued that threat at the public house. She said before she left the public house, when it was said to her that she had a nice flat, "I don't want it, I'm going to burn it down".

The flat was on the top floor of a fourteen-storey block of flats in Grays. The applicant purchased two boxes of matches, as well as cigarettes, before going home. She then went home. At about 10.45 pm, or thereabouts, she set fire to a pile of her clothing in her flat. One of the neighbours saw smoke in the hallway and went into the flat, the door of which was open, to speak to her. The applicant refused to leave and said, "Let it burn". Eventually she was persuaded to leave. It was noticed she had been drinking. Once outside, the applicant did not leave the scene. She became hysterical and was heard to say that she had put her clothes in a pile and set light to them.

Unfortunately there were others in the flats, as one would expect at that time of night. The other tenants in that large block were evacuated. An elderly couple had been persuaded to leave their flat, but tragically returned to it and suffocated from smoke inhalation, the smoke deriving from the fire started by this applicant. Because the jury took the view that there was a break in the chain of causation, this applicant was acquitted of manslaughter.

The applicant is a lady of 35. It is of note that she has never been in trouble before. As is so often the case in arson of this sort, she has a depressed and unhappy background, as revealed in a number of reports. The effect of those reports was summarised in a report of August 1997 from Dr Browne, a consultant psychiatrist, who points out that this applicant is not ill. He describes how she had led a blameless existence to the time of the offence. Her intermittent depressions, which led to a minor overdose at Christmas and to the present offence, would appear to have been related to her unhappy relationship with her present boyfriend. Indeed, it appears that she was setting fire to her clothing because she thought that clothing made her look attractive. All the other reports, which we have carefully read, are to the same effect.

During the period waiting for sentence she was at one point retained in a secure psychiatric unit, but it was plain that she settled down there and requires no further treatment in such an institution.

The pre-sentence report speaks of a fear of some risk of offending until she can take full responsibility for her actions. Nevertheless, we accept, as was submitted in very full submissions by Mr Cooper on her behalf, that she was at least responsible enough to stay at the scene and we further accept that she exhibited genuine remorse at the offence that she had caused and particularly in relation to that two elderly people in the same block of flats, who had died.

It is important, as we were reminded, that this lady should only be sentenced for the offence to which she pleaded guilty at the earliest opportunity. It is submitted that, having regard to her genuine remorse, her plea of guilty and particularly her blameless background, this sentence of five years was manifestly excessive. It is submitted, in particular, that there is a danger that she was in fact sentenced in respect of her responsibility for the death of those two elderly tenants when she had been acquitted by the jury of manslaughter.

In support of the submission we were referred to a number of authorities, some of which have little relevance, since they concern cases where a fire was started by accident but subsequently the defendant failed to take sufficient steps to put it out or draw it to the attention of the emergency services. Nevertheless it is of note that this sort of sentence does fall within the range of sentences approved by this Court on appeal. We were particularly referred to the case of Anna Marie Zywina (1984) 6 Cr App R(S) 434, in which a nurse who set fire to four unoccupied rooms in a hospital had her appeal allowed and her sentence was reduced to one of 30 months. We were also referred to the Attorney-General's Reference No 1 of 1997 ( Wheeler) [1998] 1 Cr App R (S) 54. That, it was submitted, was a worse case of a man with previous convictions who had his sentence increased to one of four-and-a-half years, the Court observing that the correct sentence would have been one of six years, where he had set fire to a flat.

We take the view that, whilst it is perfectly correct that she was not to be sentenced for responsibility for causing the death of those two victims, nevertheless it was appropriate for the court to bear in mind that, had she not set fire to the clothes in her flat, those two elderly victims would have survived. The death of those victims underlined the gravity of an offence such as this, of arson being reckless as to whether life was endangered.

We bear in mind all those matters which Mr Cooper advanced on her behalf. We take the view that, although the sentence was severe, it is not reasonably arguable that it was manifestly excessive. In those circumstances this application is refused.