England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Friday 2 February 2001

1. LORD JUSTICE PILL: On 3 May 2000, the appellant, M.G.S., pleaded guilty to an offence of arson contrary to section 1(1) and (3) of the Criminal Damage Act 1971. Initially an interim hospital order was made. On 25 August 2000, in the Crown Court at Chichester, before His Honour Judge Thorpe, the appellant was sentenced to life imprisonment with a specified period of two years and five months under section 28(3) of the Crime (Sentences) Act 1997 based on a notional determinate sentence of six years. The appellant pleaded not guilty to arson with intent to endanger life (count 1) and to arson being reckless as to whether life was endangered (count 2). No evidence was offered on those counts. The appellant now appeals against sentence by leave of the single judge.In 1998 the appellant married a woman whom he had known since 1993. The relationship was a difficult one. It is clear that the appellant had a long history of mood swings, to which we will refer in more detail. At the time of the offence he was living separately from his wife and indeed was subject to an injunction prohibiting him from going near the matrimonial home, which was a terraced house in Crawley, West Sussex, jointly owned by him and his wife.
2. On 20 January 2000, the appellant received a letter informing him that his wife had commenced divorce proceedings. He drove to the former matrimonial home. He bought petrol from a garage on the way. At about 2.50pm he smashed a pane of glass to obtain entry to the house. He poured petrol around the house and set fire to it. The fire quickly took hold. Although the fire brigade arrived to save the building itself and the other houses in the terrace, the contents of the home were completely destroyed. The house was unoccupied at the time.
3. The appellant made a prompt telephone call to the police, saying that he had not intended to hurt his wife and that he had made sure she was not in the house. He also told the operator that he had a shotgun with him which he intended to use against people who had hurt him in the past. In relation to police officers whom he knew to be pursuing him, he threatened to "blow them out of the sky". He was approached by armed officers who had been informed that he had a shotgun. He raised his coat, revealing an abject which the officers initially thought was a weapon. However, before they fired at him they discovered that it was a wooden-handled axe. The appellant was arrested on suspicion of arson. He immediately said, "I was there. I did it." When interviewed, he said that he had searched the house before setting fire to it to make sure no one was inside. He admitted that he could not be sure that the other houses in the terrace did not have people in them.
4. In passing sentence for this offence of simple arson the judge stated:

"The arson attack on your wife's home was a grave offence with great potential for harm to others, irrespective of the actual charge to which you pleaded guilty. Your subsequent attempt to commit suicide by inviting the police to shoot you, believing that you were armed, is a matter of great concern to me, as I am bound to consider the safety of the public as of paramount importance.

Even more important than those matters is the damning medical report by Dr Peckitt. It is clear that despite at least 40 mental health interventions, there are no psychiatric recommendations to be made and that you are well ale to control your behaviour in circumstances that suit you. Indeed, you are also highly manipulative.

That report sets out very helpfully a number of risk factors that any judge would have to consider very carefully indeed. Dr Peckitt makes it clear that you have a long and repetitive history of violence towards your female partners which is steadily escalating, that you have displayed no remorse, that he has observed, at all for your offence, that you are clearly willing to allow others to be hurt as a result of your selfish acts and that, in his opinion, you do pose a danger to any women with whom you have previously associated, but even more of concern is his opinion that you will move on to make new relationships, as you have done in the past."

5. The judge went on to consider the appellant's employment record, which included his having worked in care establishments. That is not a subject which for present purposes is material. The judge concluded:

"The courts have a duty to protect the public and can only do so by passing appropriate sentences. The whole tenor of this medical report is such that you should not be released until such time as the authorities can be satisfied that you are no longer a danger to the public as a whole and to female members of the public in particular."

6. Plainly it was the possibility of harm to women with whom the appellant had a relationship which particularly concerned the judge.The appellant is 37 years old. He is of previous good character in the sense that he has no convictions recorded against him.
7. On his behalf Mr Al-Yunusi submits that a life sentence was not justified in the circumstances. He further submits that even as a determinate sentence, the sentence of six years contemplated by the judge was too long.
8. The court has before it (as did the judge) a number of medical reports. A detailed report was provided by Dr B Peckitt, who is a highly qualified consultant forensic psychiatrist. He sets out the medical record of the appellant whose problems, it is clear, arose from a very early age. The appellant's mother had difficulty in handling him. He had problems at school, to which it is not necessary to make detailed reference. The appellant has twice been married, on the second occasion to the lady whose house was burnt. The doctor noted that both the first and second wives complained of violence at the hands of the appellant.
9. The medical records are then set out in narrative form. In 1985 the entry appears, following an out-patient appointment:

"Violent temper. Conflict with mother. Came to know about mother's affairs.

....

21.6.88: Got involved in a church which would not allow him to see any one. Basic problems still remains explosive episodes of temper, three or four temper tantrums. Three or four episodes of violence against Carol (his wife). Kicked and punched her. Reasons for temper -- flash back from past, poor relationship with mother. Gets low for no reason. Lasts for several hours. Being low is one of the reasons he loses his temper. Otherwise trivial reason. Never gets angry at work. Was sent for an EEG.

....

8.9.95 ....

Assessment:Thirty-two year old man with a complex history of family dynamics and group membership suggestive of emotional abuse presenting in crisis. Biological features suggest an agitated depression with possible hypomania and mood swings.

Diagnosis: Personality Disorder.

December 1997 .... Mr S. was mostly disturbed after the break-up with his girlfriend, M.. He had become increasingly angry with her being verbally abusive over the telephone. He had visited her house, lost his temper and broken a picture. He had then presented at a police station saying that he may do something serious. He made a threatening phone call to his girlfriend and subsequently phoned the police saying that he wished to kill himself.

A diagnosis of mood swings and emotional adjustment disorder was made.

On the weekend of 22 November 1997 he telephoned M.C. and said, 'I cannot live without you. I am going to end my life and take you with me.' He subsequently made aggressive telephone calls to M.C. threatening to kill her."

10. A later note records M.C. as being very uneasy with the appellant. "I was frightened of him and simply wanted him out of the house." She refers to an occasion when she was decorating the house and the appellant deliberately kicked pots of paint, ruining her carpet and spattering the wall. The police were summoned.
11. The report notes that in September 1999:

"He had a week's leave from work and had a mood swing. Whatever transpired resulted in his wife leaving him and he found out last Thursday that she was in a refuge. He smashed up his room and felt really suicidal and took the overdose. NB very distressed that his wife might clear the furniture out of the house as his first wife had."

12. Following that incident the appellant was arrested at Beachy Head by the police under section 136 of the Mental Health Act and subsequently sectioned.
13. In September 1999 there is a note of his taking an overdose of tablets. October 1999:

"Arrested under section 136 by the police threatening to harm his parents and the police with an axe and also attempting to harm himself...."

14. The notes continue following the offence for which the appellant was sentenced:

"18 February 2000 .... At the time of admission he was reported to be having suicidal thoughts and was extremely guilty about the arson attack."

15. Reference is then made to reports by other doctors, to which we will refer briefly.
16. The interim hospital order was made on 25 July 2000. Dr Peckitt's opinion was that the appellant "does not suffer from any form of mental illness". He continues:

"Mr S. suffers from a history of emotional instability and recurrent crisis. These crises tend to be of an increasingly dramatic nature, including fights and reconciliations with his partners, smashing of furniture and items within his home and violence towards his partners. He has also made modest attempts at self-harm. Mr S. has progressively raised the stakes in terms of the dramatisation of his crises from presentation to health professionals through assaulting partners and reporting himself to the police, through episodes of self-harm to dramatic car chases with the police culminating in arson and attempted suicide at the hands of police marksmen.

Formal psychological assessment indicates that Mr S. is highly self-centred, narcissistic and operates on a belief system which strongly tends to attribute responsibility for his actions to others. Psychological measures of disclosure indicate that he has a poor capacity to be direct and forthright."

17. Dr R Magregor-Morris reported on 26 June 2000. His opinion is that the appellant suffers with a personally disorder and exhibits mood swings associated with a loss of temper and loss of impulse control which manifests itself in violent outbursts towards others and harm towards himself. He continues:

"Mr S. has suffered with significant problems in his social relationships but has managed to maintain his good occupational relationships.... In my opinion, Mr S. suffers with emotionally unstable personality disorder of borderline type. The particular characteristics of this group include intense outbursts of anger, often leading to violence or behaviour explosions, together with instability of mood....

Mr S., therefore, could be categorised under psychopathic disorder within the Mental Health Act. Mr S. did not at the time of the interview suffer with a mental illness within the meaning of the Mental Health Act but would be more vulnerable to a superimposed mental illness due to his personality disorder....

.... Mr S. requires a full multi- disciplinary assessment and a full forensic psychology assessment and assessment of all the factors leading up to the offence.

.... Mr S. is keen to co-operate with this plan. He has a past history of maintaining long- term relationships and this indicates that he may emerge well in therapy. He is keen to address the issues which have caused him considerable distress for the past twenty years."

18. Dr Jean Sherrington reported on 12 July 2000. At that time her assessment was that the appellant was not suffering from a mental illness such as depression and no longer required emergency treatment in a psychiatric hospital. It was felt that his difficulties were long-standing and related to intense emotional conflict. In her summary and recommendations she says:

"I nevertheless feel that there is sufficient evidence of a long-standing dangerous and irresponsible pattern of behaviour to feel that Mr M.S. would fall within the criteria for psychopathic disorder in the 1983 Mental Health Act.

.... Mr S. is extremely motivated, indeed almost desperate, to have help in addressing his difficulties. There is good evidence that he has already begun to make use of help from a variety of sources, both in hospital and in prison. I feel that the risk of him re-offending has already considerably decreased."

19. In recommending an interim hospital order, Dr Sherrington stated:

"As part of this assessment it would also be possible to involve Mr S.' family as stresses within the family are obviously an important factor in his offending behaviour."

20. We have referred to the other medical opinions before addressing the conclusions of Dr Peckitt which weighed heavily with the judge. Dr Peckitt stated that in his opinion there was no psychiatric recommendation to be made. He then set out the risk factors as he saw them:

"1. Mr S. has a long-standing, repetitive history of violence towards his female partners which has been steadily escalating.

2. Mr S. has shown no remorse whilst in hospital for his index offence; rather he has sought to explain it as if he were doing his estranged partner some kind of a favour.

3. The presence of correspondence between Mr Simmonds Senior and the victim of the arson concerning fire insurance may be an unfortunate coincidence but in my opinion further enquiry may be necessary to appropriately weight this factor in terms of the risk assessment."

21. In the context of this case and for present purposes we do not consider the insurance aspect to be material. It appears that one of the motivating factors was that, misguidedly and dangerously, the appellant may have thought he was doing his estranged wife a favour. To that extent we bear it in mind.

"4. Mr S.' attempt to have the police shoot him to death is extremely worrying, and illustrates Mr S.' willingness to allow harm to befall others by his highly selfish acts.

5. Mr S. does not appear to pursue retribution against his ex partners in the long term, but those responsible for the risk he poses must be aware of the danger he would pose to any of the women he has previously associated with. It is however in my view more likely that he will move on to make new relationships as he has done in the past.

6. I note with concern that Mr S. worked in a number of care establishments, both with adults and children. Mr S. has also failed to complete medical declaration forms for insurance purposes truthfully....

7. I would recommend that Mr S. should not be employed in any capacity of care or responsibility for ill or vulnerable persons.

8. I respectfully recommend that if the sentence of the Court should be one of imprisonment that this report should be made available to the various agencies who will be managing Mr S. through his prison career.

9. As Mr S. appears to respond to disappointment with dramatic gestures, there is a risk of a dramatic gesture of self-harm at or about the time of sentencing."

22. Dr Peckitt has made a comprehensive assessment. This court shares the worries which the judge and Dr Peckitt have expressed about the appellant's future conduct. Analysis of the medical records is required, however, to decide whether the contents of those records create a situation in which an exceptional case exists.
23. There are several worrying features in the appellant's behaviour. The one with which the court must be concerned is that of danger to the public, which includes those members of the public who may be particularly vulnerable to the appellant's conduct. Compared with some cases, however, the harm done to the women concerned, as distinct from the serious offence which is now committed by way of arson, is not of the most serious kind. That is a comment upon the medical records which we have set out in some detail.
24. The judge also had a pre-sentence report on the appellant from a probation officer, dated 20 June 2000. Under the heading "assessment to the risk of harm to the public and the likelihood of re-offending" the writer says:

"Mr S. appears to have experienced a difficult childhood, not least because of his parents' extreme religious beliefs, which left him confused and with feelings of guilt. This was exacerbated by his experience at boarding school which he felt unable to share. As a result, his behaviour has often been unreasonable and he has been both mentally and physically violent towards his partners. Although he now appears to be able to talk about this, I believe Mr S. will require a considerable amount of counselling and help and in the meantime, there must be some risk of a relapse in his behaviour and therefore a risk of harm to the public."

25. The circumstances in which a life sentence is appropriate have been considered in this court in R v McPhee [1998] 1 Cr App R(S) 201. Maurice Kay J, in giving the judgment of the court, set out the classic statements on this subject and we can do no better than repeat those statements:

".... in Hodgson (1967) 52 Cr App R 114 McKenna J stated:

'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 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 specifically injurious as in the case of sexual offences or crimes of violence.'

In Wilkinson (1983) 5 Cr App R(S) 105, 108-109, Lord Lane CJ stated:

'It seems to us that the sentence of life imprisonment, other than for an offence where the sentence is obligatory is really appropriate and must only be passed in the most exceptional cases. With a few exceptions, of which this case is not one, it is reserved, broadly speaking .... for offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act, yet who are in a mental state which makes them dangerous to the life or limb of members of the public. It is sometimes impossible to say when that danger will subside, and therefore an indeterminate sentence is required, so that the prisoner's progress may be monitored by those who have him under their supervision in prison, and so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large.'"

26. In Attorney General's Reference No 2 of 1996 (Steven Alan Whittaker) [1997] 1 Cr App R(S) 261, 264, the Lord Bingham CJ stated:

".... 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. By 'serious danger' the court has in mind particularly serious offences of violence and serious offences of a sexual nature. The grounds which may found such belief will often relate to the mental condition of the offender. So much was made plain by Wilkinson....

....

It is therefore plain that evidence of an offender's mental state is often highly relevant, but the crucial question is whether on all the facts it appears that an offender is likely to represent a serious danger to the public for an indeterminate time."

27. In McPhee the court held that, notwithstanding the seriousness of the offence for which the appellant had to be sentenced (an offence of wounding with intent to cause grievous bodily harm), it could not be said that the appellant was likely to represent a serious danger to the public for an indeterminate time.
28. Both in the case of McPhee and in the submissions of counsel in this case, reference is also made to criteria under section 2(2)(b) of the Criminal Justice Act 1991. That subsection does not, in our judgment, have a part to play in the decisions which this court has to make.
29. Mr Al-Yunusi also referred to the case of R v Booker (1982) 4 Cr App R(S) 53, where this court (Griffiths LJ presiding) re- affirmed the principle that a sentencing court should confine its sentence to the offence to which the appellant had pleaded guilty and not bring in broader considerations. The relevance of that case is that it, too, was a case where a plea to attempted arson with intent to damage property had been accepted. The judge, in the view of the court, had sentenced on the basis that a more serious offence of arson had occurred. The relevance of that principle to this case, Mr Al- Yunusi submits, is that the judge sentenced on the basis that the appellant had pleaded guilty to something more serious (count 1 or count 2) than the offence to which he had in fact pleaded guilty.
30. We are concerned about the risk which the appellant imposes to the public. However, that of itself is not sufficient to justify a life sentence. There are many cases where serious offences are committed and where any sentencing court will be troubled about what happens when the offender is released from prison. Something more has to be established before a life sentence can be justified. What has to be established emerges clearly from the statements of principle by McKenna J and Lord Lane CJ, to which we have referred. The appellant pleaded guilty to an offence of arson; it was an offence of simple arson, albeit a serious one.
31. We have come to the conclusion that, serious though it was, it cannot be said to have been grave enough to require a very long sentence. Moreover, we have come to the conclusion that, notwithstanding the very worrying aspects of the appellant's history and his conduct towards the members of his family, they do not come within the "most exceptional circumstances" to which Lord Lane CJ referred. Unhappily there are many people with the type of personality and disturbance which the doctors found to be present in this case. The appellant's past conduct, as summarised in the medical records, cannot, in our judgment, be categorised in such a way as would justify the court in concluding that an indeterminate sentence is required.
32. It is not necessary to comment further and conclusion by conclusion upon Dr Peckitt's recommendations. It is sufficient to say that we are not satisfied that the very exceptional course in relation to an offence of this kind, which a life sentence would represent, is appropriate in this particular case. We note also that the encouraging comments which appear in the reports of the other two doctors to whom we have referred is to a degree echoed in the report we now have (which was not before the judge) from a prison visitor, Mr David Walters, dated 25 January 2001. Mr Walters states:

"His personal self-esteem and self-confidence have grown measurably and the changes are noticeable.... The signs are good and M. is forward-looking with determination to address issues rather than bury them, as in the past."

33. We have set out the material before the court in some detail because our conclusion differs from that of the learned judge and because of the worrying features which are present in this case. For the reasons we have given, we propose to quash the life sentence which was imposed. We do not, however, accede to the submission that the determinate sentence which the judge decided should be one of six years' imprisonment was inappropriate in this case. We have been referred by Mr Al-Yunusi to various cases, including Booker where a sentence of five years was reduced to one of three years. We bear in mind the previous good character of the appellant, at least to the extent that, notwithstanding the conduct to which we have referred, he can place himself before the court as a man without previous convictions.
34. This was, however, a serious offence of arson. It was premeditated and deliberate. Moreover, it was accompanied by aggravating features, including placing the police who came to arrest him, he having notified them of the fire, in an extremely difficult position. The circumstances surrounding the offence aggravate it, in our judgment, and the learned judge was entirely correct to assess the appropriate determinate sentence as one of six years on a guilty plea. We substitute for the sentence of life imprisonment a sentence of six years' imprisonment. To that extent this appeal against sentence is allowed.