England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2007] EWCA Crim 1320

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		Neutral Citation Number: [2007] EWCA Crim 1320
		No: 200606560/A5

IN THE COURT OF APPEAL
CRIMINAL DIVISION

No: 200606560/A5
Royal Courts of Justice
Strand
London, WC2

11th May 2007

B e f o r e :

LORD JUSTICE THOMAS
MR JUSTICE KEITH
MR JUSTICE LLOYD JONES
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	R E G I N A
	-v-
	GEORGE FRANKHAM

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Mr S Smyth appeared on behalf of the Appellant

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HTML VERSION OF JUDGMENT
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Mr Justice Keith: On 23rd June 2006 at Chichester Crown Court, the appellant was convicted of an offence of arson with intent to endanger life. He had pleaded not guilty. On 31st October he was sentenced by Judge Thorpe to 12 years' imprisonment. He now appeals against his sentence with the leave of the single judge.

The appellant is 31 years old. He comes from a family with a tradition of travelling with fairs. He owned a hamburger stall and a bouncy castle. He employed Lee-Roy Murfin in that business. Some time in 2004, Mr Murfin began an affair with the appellant's wife. That was not the first time that she had been unfaithful to him. He had become clinically depressed after finding out about her previous infidelity, and had been prescribed anti-depressant medication. Indeed, he and his wife had separated for a while, during which time he had tried to hang himself. However, they had become reconciled by the time her affair with Mr Murfin began in 2004.

On the evening of 30th December 2004, the appellant overheard his wife on the telephone telling Mr Murfin that he was the father of their recent child. The appellant was very distressed, and after an evening's drinking he made a threatening telephone call to Mr Murfin, who at that time was staying at the home of his mother and stepfather. The appellant's wife had herself telephoned Mr Murfin to tell him that she had had a row with the appellant, and in effect to warn him that the appellant may be on the look-out for him.

Later that night, a man went to the house where Mr Murfin was staying, which was a semi-detached house set back from the road. The forensic evidence established that petrol was poured against the front door and then set alight. Indeed, Mr Murfin's stepfather said that he saw the man throw something which was alight at the door. He recognised that man as the appellant, and although the appellant was to deny that the man was him, the jury must have been sure that it was him. Flames engulfed the door, but the damage was confined to the door and the door frame, and no one was injured. The house had not been fitted with smoke detectors, and there was six people in the house at the time: Mr Murfin, his mother and stepfather, and their three children, aged eight to 18. When sentencing the appellant, the judge said that the appellant must have known this.

The appellant had two previous convictions. One was for indecent assault on a girl of his own age when he was 15, and the other was in 2005 -- in other words, after the commission of this offence but before his trial -- for driving a motor vehicle with excess alcohol. By the time of his trial, he had separated from his wife, though she gave evidence for him and was seen sobbing in the public gallery when he was sentenced. He acknowledged that at the time of the offence he had a significant problem with alcohol, and he was to tell the author of the pre-sentence report on him that his drinking for his depression had not abated until he met his new partner three months before his trial. By the time of his trial, though, he had lost his business.

A psychiatric report on him was unable to address his thinking at the time of the offence since the appellant continued to be in denial about his responsibility for it, but it confirmed the previous diagnosis of depression, and pointed to his unsettled childhood and to his suffering more from his parents' conflicts than he was prepared to recognise. He was described by the psychiatrist as being more vulnerable than his apparent affability suggested. That has been confirmed to us today by what the director of the prison at which he is currently held has informed the court: other prisoners have taken advantage of his vulnerability and he is soon to be transferred to another prison which specialises in providing support for prisoners who suffer from various forms of mental illness.

Although the offence was committed before the provisions about dangerousness in the Criminal Justice Act 2003 came into force, the judge considered whether the appellant posed such a risk to members of the public of serious harm that an indeterminate sentence was necessary in order to protect the public. In the end, he decided that a determinate sentence was adequate, and he regarded 12 years' imprisonment as commensurate with the seriousness of the offence, having expressed the view that the fact that the appellant had been "affected by drink and consumed with jealousy" was "no mitigation at all".

The indictment which the appellant faced had included an alternative count, the less serious form of arson, which did not allege an intent to endanger life, but an intent to damage property and being reckless as to whether the lives of others would be endangered. Mr Stephen Smyth for the appellant has referred in his grounds of appeal to the fact that the prosecution had been prepared to accept a plea of guilty to that lesser count, and that the judge had intimated his approval of such a course. That may be so, but the appellant nevertheless had to be sentenced on the basis of the jury's finding, which was that he had intended to put the lives of others in danger.

Mr Smyth has drawn the court's attention to a number of authorities. We do not regard those cases which deal with the attempted murder of a spouse or partner as being of particular assistance. But the cases cited to us relating to the appropriate sentences for offenders who commit arson with intent to endanger life show that the starting point tends to fall in a range of eight to ten years' imprisonment. That bracket appears to reflect the fact that, as with the present case, the offender's life will usually be in upheaval at the time, and that the offender will be going through much turmoil in order for him to commit an offence of the kind which puts the lives of innocent people at risk.

An example of these cases is Cheeseborough (1982) 4 Cr App R(S) 394. In that case, the appellant during his trial retracted his earlier plea of not guilty, and pleaded guilty to an offence of arson with intent to endanger life. In the early hours of the morning, he had poured petrol through the letter box of the house of a man who was having an affair with this wife and had ignited it. The court reduced his sentence from ten years' imprisonment to seven. More recently, in Attorney General's Reference No 66 of 1997 [2000] 1 Cr App R(S) 149, BAILII: [1998] EWCA Crim 2232, the court said that following a trial it would have expected a sentence within the range of eight to ten years' imprisonment to be imposed for an offence of arson with intent to endanger life, where the offender had squirted petrol upon the carpet outside the bedroom where four members of his family lived, having previously removed the batteries from the fire alarm. The offender's marriage in that case had been going through a rocky patch, and he had been diagnosed as clinically depressed at the time. Finally, in Attorney General's Reference Nos 78, 79 and 85 of 1998 [2000] 1 Cr App R(S) 371, the court said that the appropriate bracket for an offender convicted of arson with intent to endanger life, who had felt a long standing resentment towards his father, and who had thrown a lighted petrol bomb at a row of houses which contained his father's house, was between eight to ten years' imprisonment. In that case, grave injuries were caused to two small children.

In our judgment, a sentence of 12 years' imprisonment for what the appellant had done was very significantly out of kilter with the level of sentence normally considered appropriate for this kind of offence. To the extent that the appellant's case came within the bracket of eight to ten years' imprisonment, it was plainly right at the lower end. However, bearing in mind the very limited extent of the damage, the absence of any injury to anyone, the very real distress which the appellant felt at the time over his wife's infidelity, the doubt that she had planted in his mind about his paternity of their recent child, his undoubted vulnerability and the fact that Mr Murfin and his family apparently bear no grudge against him because they have written to the court saying that they have no objection to his early release, we think that this is an exceptional case, for which the appropriate sentence would have been one of seven years' imprisonment. Accordingly this appeal will be allowed, the sentence of 12 years' imprisonment will be set aside, and we substitute for it one of seven years' imprisonment.