England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		14 May 2007

1. JUDGE LORAINE-SMITH: On 2nd October 2006 in the Crown Court at Sheffield both these appellants pleaded guilty to count 2, arson being reckless as to whether life is endangered. Additionally, Goodfellow pleaded guilty to count 4 (burglary) and Jevons also pleaded guilty to count 3 (simple arson). On 1st December both were sentenced by His Honour Judge Goldsack QC to five years' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 on count 2. No separate penalties were imposed on Goodfellow for count 4 or on Jevons for count 3. A count of arson with intent to endanger life was ordered to lie on the file against each of them and count 3 (simple arson) was ordered to lie on the file against Goodfellow on the usual terms. They appeal against that sentence of five years pursuant to section 91 with leave of the single judge.
2. The facts were as follows. On the evening of 16th June 2006 the appellants were out with a group of friends drinking to celebrate the end of their school careers. Goodfellow, then aged 16, went to a local property and broke the padlocked clasp off the garden shed, stole a petrol can and rejoined the group. That was the subject matter of count 4.
3. In the early hours of the morning the group sat in an alleyway at the back of a house. Some of them were sniffing the fumes from the petrol can. One member of the group poured petrol against the outside wall of the house and lit it with a lighter. Flames rose to about four feet. Jevons, then aged 15, also poured a large quantity of petrol onto the wall and lit it, causing scorching. That was the subject matter of count 3.
4. The group moved off. One of them made a racist remark. They then went to No 23 Burns Road, Maltby, a terraced house which at that time was occupied by a Tunisian man, his girlfriend, her sister and a friend all of whom by that time were in bed asleep. The judge specifically stated that there was insufficient evidence to establish any racist motive. Between them Goodfellow and Jevons threw petrol on the door of the property and it splashed onto the adjacent wall and window. Some of the petrol went through the top of the window which was open and splashed the curtains. They then lit the petrol. Both appellants claimed that they did not realise that the house was occupied. The curtains caught fire. A neighbour, Mr Brett Jones, who happened to be awake, heard noises which included laughing and saw the fire when he went outside to investigate. He hammered on the door to raise the alarm. He and his partner doused the fire outside the property with a bucket of water. Unable to alert the occupants and unable to extinguish the fire inside the property, Mr Jones kicked the front door open and then, with commendable courage, pulled the curtain pole off the wall and threw the flaming curtains outside into the street. He then went into the house which was by then smoke-filled. The occupants were raised and safely left the house. The fire caused £1,500 worth of damage. The fire service determined that the fire was caused by a maliciously administered accelerant and had the fire not been discovered it would have spread into the property and could have caused loss of life. Not surprisingly the occupants had been traumatised by thoughts of what might have happened to them.
5. The appellants were arrested on 23rd June 2006. Goodfellow made no comment and Jevons denied any involvement. Jevons entered a basis of plea. In the course of passing sentence, the judge observed:

"It is drink and generally feckless attitudes and behaviours which lie behind these offences. ... Given your ages, I have many reports about you. ... Mental illness does not lie behind these offences, delinquency does."

He concluded that although this was a specified offence they did not qualify for an indeterminate sentence. He continued:

"You are both entitled to appropriate credit for your pleas...

Deliberately setting fire at night to a house which is occupied, even if you did not think it was, falls into the most serious category of offending. Whilst I bear in mind your ages, that cannot save you from a lengthy sentence."

6. Goodfellow is now aged 17. He had appeared before the courts on one previous occasion. In 2006 he was given a referral order for offences of attempted theft of a motor bicycle and burglary of a shed. He told the probation officer that at the time of this offence he was drinking heavily on a regular basis and spending much of his time with other offenders. He accepted that it was he who threw petrol at the window of the house when he and his associates had become badly affected by alcohol and the petrol fumes which they had sniffed earlier. He expressed regret for his actions, but the author of the report found it difficult to assess his degree of remorse. He had been seriously affected by the death of a grandparent three years earlier and his behaviour had deteriorated. He began getting into trouble at school and associating with other young people who were drinking heavily. His behaviour had however improved since his arrest. The pre-sentence report recommended a supervision order with an intensive supervision and surveillance programme as an alternative to custody.
7. A psychiatric report identified traits of attention deficit hyperactivity disorder. The appellant's full scale IQ of 70 is on the borderline between normal intellect and a mild learning disability. The psychiatrist took the view that because there did not appear to be any underlying medical cause for that low IQ it is likely that his limited secondary school attendance contributed towards his limited attainment. The psychiatrist concluded that this appeared to be an isolated fire-setting incident and there was no history nor abnormal finding on mental state examination to indicate a pathological interest in fires. The offence appeared to have been committed within a context of harmful alcohol use and peer pressure. A pschological report referred to test scores which strongly indicated attention deficit hyperactivity disorder, a basic reading score of 9.3 years and a spelling age of 8.6 years. A report from his young offender institution at Lancaster Farm describes his good behaviour as a prisoner and suggests that he is a likely candidate not to return.
8. Jevons is now also aged 17. He pleaded guilty on a detailed basis of plea in which he accepted that it was he who set light to the petrol on the window but he said that he thought that it would burn off the petrol on the surface as it had when he had set alight to it against a wall earlier on that evening. The probation officer found that he was very depressed and demotivated by comparison with the lively and somewhat disruptive and immature adolescent he had dealt with two years earlier. The appellant told him that he had been very drunk at the time of the offence, having consumed approximately eight cans of lager. He expressed remorse and the probation officer found no evidence of any preoccupation with fire setting or causing harm to others. This was an offence committed out of alcohol-fuelled bravado. A similar alternative to custody was proposed as in the case of the first appellant. A psychiatrist also concluded that this offence appeared to have taken place in the context of alcohol. It was his opinion that given the appellant's current feeling of guilt and remorse that it was unlikely he would re-offend in the same way in the near future. He considered the risk of reoffending to be low. A psychologist concluded that this offence was undertaken impulsively and while intoxicated. It occurred against a relatively stable background history and no clear evidence of psychological maladjustment had been identified.
9. It is submitted by Mr Hughes that the sentence of five years' detention was manifestly excessive for what amount to three reasons: first, the age of both appellants at the time of the offence: Goodfellow was 16, Jevons 15; secondly, the guilty pleas tendered by both at the plea and case management hearing and in Jevons' case the accepted basis of plea; and thirdly, the personal mitigation available to both applicants.
10. Two authorities have in particular been drawn to our attention. The first is Attorney General's Reference No 5 of 1993 [1994] 15 Cr.App.R (S) 201. In that case the trial judge imposed a sentence of 12 months' imprisonment suspended for 12 months with an order to pay £1,250 compensation for arson being reckless as to whether life would be endangered by throwing a petrol bomb through the window of a house. The Court of Appeal varied that sentence to one of two years immediate imprisonment. The facts were that the offender had pleaded guilty to arson being reckless whether life would be endangered. He and his girlfriend were involved in a dispute over a taxi with a group of men in the course of which the offender's girlfriend was knocked to the ground. The offender in the early hours of the morning went to the house where the other group lived and threw a brick through the window, followed by a petrol bomb. Minor damage was caused to the house. The Lord Chief Justice, Lord Taylor, concluded of the offender:

"He is a man of previous good character. More than that, he is spoken of positively by employers and he is supported by his family. It is quite clear that the offence which he committed was out of character. It may be that his feelings for his girlfriend's discomfiture aggravated by the amount of drink which he took persuaded him to act in this way. But we have to look at the gravity of what was done. It was the most fortuitous good fortune that this offence did not result in greater damage to property, or even to life. Setting fire to a semi-detached house endangers not only the people in that house, but those in the next house and also may endanger the firemen who have to come and put out the fire. These are all considerations which make an offence of this kind extremely serious and one which cannot be passed over in the manner in which it was in the present case."

Taking into account the exceptionally good record of the offender and the element of double jeopardy, the court varied the sentence to one of two years' imprisonment.

11. The second authority is that of Layla Josephine Parkes 16 Cr.App.R (S) 74. In this case five years' detention in a young offender institution for arson being reckless whether life would be endangered was reduced to three years. The facts were that the appellant had pleaded guilty to arson being reckless whether life would thereby be endangered. She believed that another young woman was spreading rumours about her. She obtained petrol, poured it by the door of the young woman's house in the early hours of the morning and set alight to it. The front door was set on fire and the young woman and two children were rescued by the fire brigade. The sentence was one of five years' detention in a young offender institution. Waller J concluded:

"In the present case we take into account, as did the sentencing judge, that the appellant was only 17 years of age at the time. But on any view this was a very serious offence indeed, one in which it is clear that the appellant knew the number of people that were involved in the premises which she had deliberately planned to attack in the way that she did. She did that with a total disregard of the safety of those people, including the safety of young children. So clearly the judge was right that a custodial sentence was inevitable; indeed, that has not been challenged on this appeal in any way. But it does seem to us that if the case to which we have referred...[Attorney General's Reference No 5 of 1993] ... had been drawn to the judge's attention he would not have started, as it were, from a figure of 10 years.

It is clear that this appellant does now appreciate the gravity of what she did. It is also clear, and we would add to the words of the sentencing judge, that she does need assistance, as demonstrated by the reports to which the sentencing judge referred. In our judgment what she needs is a period of detention in a young offender institution. We only add that we hope those reports will be drawn to the attention of those authorities. But what we also conclude is that we are able to reduce that period of custody from five years to three. To that extent this appeal is allowed."

12. The facts of the present case were very serious indeed and obviously nothing but a custodial sentence was appropriate. These two young men acting with alcohol-fuelled bravado, set alight to a terraced house in circumstances which, but for the courage of the neighbour, could have had tragic consequences for the four occupants of those premises. But in order to reach the figure of five years for these appellants the judge must have had a starting point of around seven years which we consider to be too high on the facts of this case with appellants of this age. Having considered in particular the two authorities referred to, which we understand were not drawn to the attention of the trial judge, we think the appropriate sentence for these two appellants is one of three years' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 and accordingly we allow these two appeals to that extent.