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Chapman, R v [1999] EWCA Crim 2056 (22 July 1999)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1999/2056.html
Cite as:
[2000] 1 Cr App R (S) 377,
[1999] EWCA Crim 2056,
[2000] 1 Cr App Rep 77,
[1999] Crim LR 852,
[2000] 1 Cr App R 77,
[2000] 1 Cr App Rep (S) 377
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JAMIE LEE CHAPMAN, R v. [1999] EWCA Crim 2056 (22nd July, 1999)
No.
98/4967/Z4
IN
THE COURT OF APPEAL
CRIMINAL
DIVISION
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
__________________
R
E G I N A
-
v -
JAMIE
LEE CHAPMAN
__________________
Computer
Aided Transcription by
Smith
Bernal, 180 Fleet Street, London EC4
Telephone
0171-421 4040
(Official
Shorthand Writers to the Court)
__________________
MR
E FITZGERALD QC appeared on behalf of THE APPELLANT
MR
J DE BURGOS appeared on behalf of THE CROWN
____________________
J
U D G M E N T
(As
Approved by the Court
)
____________________
Thursday
22 July 1999
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.
_________________________________
© 1999 Crown Copyright