England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Thursday 22 July 1999

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Bingham of Cornhill )

MR JUSTICE ALLIOTT

and

MRS JUSTICE STEEL

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R E G I N A

- v -

JAMIE LEE CHAPMAN

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Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4

Telephone 0171-421 4040

(Official Shorthand Writers to the Court)

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MR E FITZGERALD QC appeared on behalf of THE APPELLANT

MR J DE BURGOS appeared on behalf of THE CROWN

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J U D G M E N T

(As Approved by the Court )

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THE LORD CHIEF JUSTICE: The appellant Jamie-Lee Chapman is aged 22, having been born in March 1977. On 20 May 1996, in the Crown Court at Peterborough, he pleaded guilty to arson being reckless as to whether life was endangered. Sentence was postponed to a later date for reports, and on 1 August 1996 he was sentenced on that count to life imprisonment. Under section 34 of the Criminal Justice Act 1991, a period of twelve months was ordered to be served before consideration of release. A verdict of not guilty was entered on the first count of the indictment which charged the appellant with arson with intent to endanger life. He appeals against sentence by leave of the single judge.

The brief facts of the offence are these. The appellant lived in a unit catering for young adults at 21, St Peter's Road, Wisbech. He shared accommodation with another resident. The manager of the unit was a gentleman named Mr Dangerfield.

On 20 February 1996 the appellant and another had been out and they returned to the room which they occupied. The fire alarm kept going on and off for about half an hour and Mr Dangerfield, who was cooking supper, attributed it to his cooking operations. However, when the appellant finally came downstairs for his meal Mr Dangerfield could see at the top of the landing smoke which was becoming thicker. He told the residents to leave the building. The appellant left by the front door, slamming it behind him. Mr Dangerfield went to the back door and found that it was locked, although the appellant denies that he was responsible for locking it. Mr Dangerfield could no longer see the front door because the smoke was so thick and was getting thicker. He managed to open the kitchen door and leave the house. He alerted the neighbours.

That evening the appellant was arrested and interviewed. It appeared that he had had a disagreement with another occupant of the unit, and he described how he had set the fire alarm off by spraying air freshener and lighter fuel from a cigarette lighter and had then set fire to it. He had gone upstairs with a bucket of water when invited to do so and said that he had never at any stage thought about endangering life and very strongly denied that he had ever intended to injure anyone.

The sentencing judge had before him a number of reports, of which three in particular are significant. The first of these, written by Dr Fegetter, a consultant psychiatrist, was dated 13 June 1996. He had interviewed the appellant and formed the opinion that there was no evidence of any treatable mental illness. He agreed in that with an earlier psychiatrist who had examined the appellant and with the other reports. He was, however, of opinion that there was considerable evidence of a personality disorder and concluded his report by saying:

"I would have to say that someone who started lighting fires at the age of nine, had a further pronounced period of lighting fires between the ages of 11 and 13 and now has resorted to fire setting again when he felt that he was not being paid enough attention is liable to be a continued risk of setting further first at any time in the future when he feels frustrated. I see from the reports that he has been noted to have very considerable problems with temper and anger control in the past and I would have to say that I would see him as being a very considerable risk in the future of setting further fires. I do not think that this is amenable to treatment since this is not being driven by any mental illness. I can only raise my own concerns that Mr Chapman presents a very considerable danger to the public for the foreseeable future."

That was supplemented by a report from Dr Solomka, a senior registrar and clinical lecturer in forensic psychiatry, who wrote a report dated 18 July 1996. She concluded that the appellant reacted to stressful events in various ways, some of which involved a deterioration of mood, violent outbursts, and on occasion setting fires. She believed that his conduct disclosed a personality disorder, but did not regard him as suffering from a treatable medical illness. She said:

"In terms of future fire setting I would concur with probation officer, Margaret Mason's report and Dr Fegetter's report that there is a risk that he will re-offend by setting fires. Whether this amounts to a risk of serious harm is I believe up to the Court to decide. The risk of future fire setting is closely linked with his personality; episodes of low mood, perceived hostility and criticism, anxiety and resentment are times when the risk of setting a fire would be higher."

The third of the leading reports before the judge was written by Dr Smith, senior registrar in forensic psychiatry, dated 22 July 1996. He described in very considerable detail and with great care the extraordinarily difficult and turbulent upbringing which the appellant had endured, beginning with incidents of severe abuse in the parental home, which led to his being taken for a short period into care at the age of four. His experiences at school were of an extremely unhappy kind, partly because of medical problems from which he suffered, and partly because of his then diminutive stature which rendered him a natural target for bullies. At the age of eleven, as the result of serious abuse at home, he was taken into care and was over the next few years resident in a number of institutions in which he was extremely difficult and disruptive on many occasions. On a number of these occasions he set fires, although none of them caused serious damage or injury. There was, however, a history of fire setting. There was also a history, which was substantiated, of very severe sexual abuse of which the appellant was the victim. Dr Smith concluded his report by expressing the view that the appellant was not suffering from a mental disorder within the meaning of the Mental Health Act 1983 and that there was no ground for any psychiatric disposal. He said:

"He exhibits a significant degree of mental instability which places him at substantial risk of committing similar offences. Whilst living in the community he represents a considerable risk to the safety of others. It is not possible at this time to predict when he will cease to present a substantial risk to the safety of others."

The sentencing judge did not have the benefit, as we have, of later reports and had to pass sentence without that assistance. It is however convenient at this stage to mention the reports which are now before us, it being appreciated that very nearly three years have elapsed since sentence was passed.

The first of those is a report by Dr Tegwyn Williams, dated 26 April 1999. Following long interviews with the appellant he describes his history and his state of mind in considerable detail. In particular, he describes the appellant's reaction to the various forms of treatment which have been made available to him over the past three years. He writes:

"On balance I think, therefore, that Jamie Chapman appears to be moving in the right direction and the risks appear to have reduced since his start of the current sentence. It is, however, clear that the improvement has only been maintained for a relatively short period and that it would be unsafe for Jamie Chapman to return to the community at the present time.

Returning Jamie Chapman to the community is going to be a slow and careful task which will involve habilitating him and helping him develop the appropriate skills, both practical and emotional, for survival in the community, whilst at the same time assessing Jamie Chapman's response to increasingly stressful situations and helping him develop an appropriate range of coping strategies. It is difficult to predict the rate at which this procedure can take place, but Jamie Chapman's good response to date suggests that such an approach may well be successful."

In response to a request for elucidation made by those now representing the appellant Mr Tegwyn Williams, on 19 July 1999, clarified the practical effect of his recommendation. He then added this:

"For the purpose of this addendum, I have been asked by counsel to consider a hypothetical situation that Jamie Chapman be made subject of a long determinate sentence of say ten years, and whether or not this would provide adequate public protection. For the sake of this hypothetical situation, I would consider Jamie Chapman to spend a period of approximately three to four years in custody."

We interpolate that the doctor has since made it plain that he means from now. The addendum continues:

"As mentioned in the body of my report, I am of the view that Jamie Chapman appears to be moving in the right direction as far as risks of further fire setting are concerned and he requires help in developing both the practical and emotional skills for survival in the community and testing him out in increasingly stressful situations to help him develop an appropriate range of ways of coping with his feelings. Should the current progress be maintained for a period of three to four years, whilst it is impossible to be certain, it is in my view likely that the level of risk would be appropriate for Jamie Chapman to return to the community. If during that period Jamie Chapman does not improve and indeed sets another fire, the option would remain open to the authorities to charge Jamie Chapman with those offences."

Lastly, there is a report by Ann Kobayashi, a qualified social worker, dated 19 July 1999. She has voluntarily taken a very close and continuing interest in this appellant. She describes the history with which she is very familiar, since she has had responsibility for him for periods in the past. She paints a favourable picture of his progress since his most recent transfer into an adult prison, and she expresses the opinion that he is very much more likely to progress to a mature acceptance of the need for change and an abandonment of his former habits if he has a determinate goal towards which to work. On that basis she invites the court to give favourable consideration to the substitution of a determinate sentence.

In passing sentence upon him the judge drew attention to the six occasions in the appellant's life on which he had set fire to premises, and he mentioned two of them in particular. There were only two of those occasions which had led to the appellant's appearance in court, and on each occasion there was a conditional discharge. The offences involved setting his bed on fire at the treatment centre where he was then confined.

With regard to the present offence the judge observed that no structural damage was caused, but that the damage that did occur was substantial. He expressed the view that, had the fire not been extinguished, there would have been severe structural damage. He however accepted the submission of counsel that the risk to life from the fire which the appellant started was small. He made reference to the reports which were then before him and concluded by ruling that he was not prepared to take the risk, which he judged to be considerable, that the appellant might start a new fire if released into the community. It was on that basis that he made the order which he did.

The crux of the submission made to this court by Mr Fitzgerald QC can, we hope, be fairly summarised in a series of propositions which are not precisely those advanced by Mr Fitzgerald, although we hope that we faithfully reflect the thrust of them:

(1) Where a custodial sentence is imposed the basic rule of sentencing is that the term to be imposed should be commensurate with the gravity of the offence. In support of that submission Mr Fitzgerald relies on the terms of section 2(2)(a) of the Criminal Justice Act 1991, which provides:

"Subject to sections 3(2) and 4(2) of that Act [the Crime (Sentences) Act 1997] the custodial sentence shall be --

(a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it;...."

Mr Fitzgerald also draws attention to the observation of Lord Steyn in R v Secretary of State for the Home Department, ex parte Stafford [1998] 3 WLR 372, 380, where Lord Steyn said:

"For present purposes I am content to assume that the proportionality of the sentence to the seriousness of the crime is the leading common law principle: see Ashworth, Sentencing and Criminal Justice , 2nd ed. (1995), ch. 4."

(2) Mr Fitzgerald submits that a court may nonetheless impose a longer than commensurate sentence under section 2(2)(b) of the 1991 Act if the conditions there laid down are fulfilled and the reasons for the sentence given and explained. In support of that submission he relies again on the terms of the section, in particular:

"(2) Subject to sections 3(2) and 4(2) of that Act the custodial sentence shall be --

....

(b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender.

(3) Where the court passes a custodial sentence for a term longer than is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it, the court shall --

(a) state in open court that it is of the opinion that subsection (2)(b) above applies and why it is of that opinion; and

(b) explain to the offender in open court and in ordinary language why the sentence is for such a term."

(3) Mr Fitzgerald submits that a discretionary sentence of life imprisonment imposed for purposes of public protection and not for purposes of pure retribution or deterrence must now be passed under section 2(2)(b) of the 1991 Act. In support of that submission he draws attention to subsection (2)(1) of the 1991 Act, which provides:

"This section applies where a court passes a custodial sentence other than one fixed by law or falling to be imposed under section 2(2) of the Crime (Sentences) Act 1997."

Thus, Mr Fitzgerald submits that any sentence of custody which is not a mandatory or an automatic life sentence must either be a commensurate sentence under section 2(2)(a) or a longer than commensurate sentence under section 2(2)(b). He submits that section 2(2)(b) plainly embraces indeterminate sentences of life imprisonment, and in support of that draws our attention to subsection (4) which provides:

"A custodial sentence for an indeterminate period shall be regarded for the purposes of subsections (2) and (3) above as a custodial sentence for a term longer than any actual term."

Mr Fitzgerald acknowledges that in a number of cases in which discretionary life sentences have been imposed for purposes of public protection since 1991 the court has not expressly drawn attention to section 2(2)(b) or declared itself to be acting under that section; but nonetheless he argues, that is the authority under which the court now acts.

(4) Mr Fitzgerald submits that the first precondition for imposing an indeterminate life sentence for purposes of public protection is that the offender has committed an offence grave enough to merit a very long sentence. His prime authority for that proposition is the well-known case of R v Hodgson (1968) 52 Cr App R 113, and in particular the oft-quoted passage at page 114 where MacKenna J giving the judgment of the court said:

"When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence."

Mr Fitzgerald also refers to the more recent authority of Attorney General's Reference No 32 of 1996 ( R v Whittaker ) [1997] 1 Cr App R(S) 261, and to the passage in the judgment of the court where it was stated:

"In our judgment the learned judge was taking an unnecessarily narrow view of the circumstances in which a discretionary life sentence can be imposed. It appears to this Court that the conditions may be put under two heads. The first is that the offender should have been convicted of a very serious offence. If he (or she) has not, then there can be no question of imposing a life sentence. But the second condition is that there should be good grounds for believing that the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence."

Taking R v Hodgson as the orthodox statement of principle, Mr Fitzgerald submits that it has been applied in a series of cases, of which R v Dempster (1987) 85 Cr App R 176, R v O'Dwyer (1988) 86 Cr App R 313, and R v Spear (1995) 16 Cr App R(S) 242 are examples. He also draws our attention to cases in which a life sentence has been held to be inappropriate on the ground that the offence of which the offender had been convicted was not sufficiently grave: for example, R v Turemko [1965] Crim LR 319, and R v Williams [1974] Crim LR 376.

(5) Mr Fitzgerald submits that the second and additional precondition for imposition of an indeterminate life sentence for purposes of public protection is that there should be good grounds for believing that the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence. As authority for that proposition Mr Fitzgerald relies on R v Hodgson and Attorney General's Reference No 32 of 1996 ( R v Whittaker ). He has drawn our attention to cases in which it was held that a life sentence was inappropriate because the danger to the public was judged to be insufficient: for instance R v Picker [1970] 2 QB 161, and R v Laycock (1981) 3 Cr App R(S) 104.

(6) Mr Fitzgerald submits that longer than commensurate sentences under section 2(2)(b) should not be longer than judged necessary to achieve the object of extending the sentence, namely the protection of the public. But he submits that there is no necessary ratio between the part of the sentence intended to punish and the part of the sentence intended to protect. Thus he argues that there is no objection in principle if the court regards a term of, say, two years as necessary to punish, but an additional term of, say, six or eight years as necessary for purposes of protection, making a total term of eight or ten years. Any sentence so constructed, if justified by the grounds relied on in support of it, is, he submits, to be preferred to an indefinite life sentence which leaves a defendant uncertain when, if ever, he may hope for release, and exposes him to the risk of very protracted incarceration.

The court has been greatly assisted by Mr De Burgos representing the Crown who, mindful of the proper neutrality of a prosecutor, has nonetheless addressed certain submissions on the proper approach to the law. He has accepted at the outset that a sentence of life imprisonment should not be imposed unless the conditions are such as to make it, rather than a determinate sentence, appropriate. He does, however, question whether R v Hodgson represents the present state of the law, and in support of that draws attention to cases such as R v Blogg (1981) 3 Cr App R(S) 114, R v Allen (1987) 9 Cr App R(S) 169, and Attorney General's Reference No 34 of 1992 ( R v Oxford ) (1994) 15 Cr App R(S) 167. He further draws attention to cases such as R v Parker [1997] 1 Cr App R(S) 259 and R v Flanagan [1999] 1 Cr App R(S) 100, as showing that the offence relied on to support the indeterminate life sentence need not be of great gravity since the term specified to be served in those cases was relatively short.

There are, as we conclude, some cases in which the court has attached less weight to the first condition for imposition of a life sentence than we should have expected. Perhaps the example most helpful to Mr De Burgos' argument is R v Thornton [1975] Crim LR 51. Most of the other cases, however, are as we judge explicable on their own facts. In R v Blogg the offender had a very long record of offences, including offences of arson, stretching over a period of 30 years, and the court regarded a life sentence as merciful. In R v Allen a man with a very serious record was convicted of possessing a firearm with intent to endanger life. In R v Parker the offender was aged 36 and had a previous record of arson offences. In R v Flanagan the offender was aged 49 and again had a record of numerous previous offences, including offences of arson.

In most of those cases there was no express departure from the criteria laid down in R v Hodgson , and certainly no doubt has to our knowledge ever been cast on the authority of that decision, which was very recently re-affirmed in Attorney General's Reference No 32 of 1996 ( R v Whittaker ). In Attorney General's Reference No 34 of 1992 ( R v Oxford ), R v Hodgson was indeed specifically relied on as laying down principles which were described as "not in dispute". It is in our judgment plain, as the court has on occasion acknowledged, that there is an interrelationship between the gravity of the offence before the court, the likelihood of further offending, and the gravity of further offending should such occur. The more likely it is that an offender will offend again, and the more grave such offending is likely to be if it does occur, the less emphasis the court may lay on the gravity of the original offence. There is, however, in our judgment no ground for doubting the indispensability of the first condition laid down for imposition of an indeterminate life sentence in R v Hodgson , re-affirmed, as we say, in the more recent Attorney General's Reference No 32 of 1996 ( R v Whittaker ). It moreover seems to this court to be wrong in principle to water down that condition since a sentence of life imprisonment is now the most severe sentence that the court can impose, and it is not in our judgment one which should ever be imposed unless the circumstances are such as to call for a severe sentence based on the offence which the offender has committed. We accordingly find ourselves in sympathy with all the submissions made by Mr Fitzgerald, which are as we conclude soundly based in law.

We turn therefore to his submissions on the application of those principles to the present case. He submits, first of all, that the offence which this appellant committed was not of sufficient gravity to justify the imposition of a life sentence on a defendant aged 19. He points out that the damage to property was not extreme; that there was no injury to life and limb; that there was no likelihood of injury to life and limb; and that there was no intention on the part of this appellant to cause injury to life and limb. There was undoubtedly a very worrying history of interest in fire, but in the main these were relatively minor incidents, the two already mentioned involving the setting of fire to the appellant's bedclothes and always in rooms where there were fire alarms so that the prospects of detection were very strong. This is not, in contrast with a number of cases to which we have been referred, a case in which the appellant comes before the court with a history of serious convictions for arson.

Mr Fitzgerald furthermore submits that there was insufficient evidence before the trial judge of prospective dangerous offending to justify the imposition of a life sentence.

Our conclusion is that on the first of these points Mr Fitzgerald is right. Serious though this offence undoubtedly was, we consider that it was not of sufficient gravity to justify the imposition of a life sentence. We are not, however, impressed by his second point. We have already recited the terms of the reports before the trial judge and these did in our view point towards the likelihood of further offending and the obvious risk if such offending took place.

It seems to us that the sentencing judge faced an extra-ordinarily difficult problem. He was faced by a very disturbed young man who had suffered abuse, deprivation, isolation and medical problems, and whose upbringing had been about as unhelpful as any could be. He had shown a very worrying propensity for lighting fires, whether to attract attention, to get his own back or even, as it appeared from some of the reports, to remind himself of some of the fairly rare happy episodes in his childhood when he and his father had together lit fires in the garden. The judge had no clear guidance from any of the reports as to how long it was likely to take this appellant to mature and grow out of these habits (on the assumption that he could grow out of them). The judge plainly took the view that a commensurate sentence under section 2(2)(a) of the 1991 Act was not appropriate, and in that we conclude that he was entirely correct.

In ordering that the appellant should serve a term of one year, we infer that the judge was treating two years as the appropriate sentence for this offence had he imposed a determinate sentence, and that was in our judgment too short a term. Despite the various mitigating factors to which we have drawn attention, this was a deliberate setting of fire and we conclude that it merited on a determinate basis a sentence of three years (and perhaps even arguably more). The offence was not however, in our judgment, of such gravity as would meet the criteria laid down in R v Hodgson and R v Whittaker , bearing in mind that this was a defendant aged 19.

We conclude that a life sentence was in all the circumstances inappropriate, despite the prospect of continuing risk. The facts in our judgment pointed strongly towards the imposition of a longer than commensurate determinate sentence under section 2(2)(b) rather than an indeterminate life sentence. We of course, as already pointed out, are in a different position from the judge, since three years have now elapsed and we have the benefit of reports, of which he could not take advantage.

Taking a view as to the sentence which in the light of the material now before us we should substitute, we conclude, as already indicated, that three years is an appropriate determinate term to take for this offence, but that a period of seven years should be added for purposes of public protection under section 2(2)(b) of the 1991 Act, making a total therefore of ten years. That will take effect from the date of the appellant's remand in custody, which was 1 February 1996. We make this decision confident that, with a firm goal to work towards, and with the benefit of the assistance which this appellant is now receiving and of which we trust he will continue to take advantage, he will put these potentially dangerous habits behind him and work towards his reintegration into the community.

Is there anything else?

MR FITZGERALD: My Lord, no. There is just one matter which is this. My instructing solicitor has asked me. I do not believe we have legal aid for my solicitor. She has done a certain amount of work for the appeal in obtaining the psychiatric reports.

THE LORD CHIEF JUSTICE: Yes, we think that there should be legal aid to cover your solicitor. Mr Fitzgerald, we should be very grateful if you and Miss Kobayashi -- I am sure that you will anyway -- could explain in some detail to the appellant what is now expected of him.

MR FITZGERALD: My Lord, yes, we will.

THE LORD CHIEF JUSTICE: Mr De Burgos, we are very grateful for your help. Thank you very much.

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