England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		5 March 2009

Thursday 5 March 2009

LORD JUSTICE MAURICE KAY: I shall ask Mr Justice Holroyde to give the judgment of the court.

MR JUSTICE HOLROYDE:

1. On 22 August 2008, before the Thames Magistrates' Court, the appellant, Stanley Roberts, admitted one offence of attempted arson. He was committed to the Crown Court for sentence pursuant to section 3(2) of the Powers of Criminal Courts (Sentencing) Act 2000. On 12 September 2008, in the Crown Court at Snaresbrook, he was sentenced by Mr Recorder Green QC to imprisonment for public protection with a minimum term of two years. An order was made that the 80 days he had spent on remand in custody should not count towards that sentence. The appellant now appeals against sentence by leave of the single judge.
2. The grounds of appeal, briefly stated, are that imprisonment for public protection was wrong in principle, that the sentence was manifestly excessive, and that the 80 days spent on remand should have counted towards his sentence.
3. The appellant has suffered from mental health problems and alcohol-related problems since about 1994. The nature and the severity of his symptoms have varied over the years. A psychiatric report dated 20 August 2008, written by a Consultant Psychiatrist, Dr Falkowski, summarised the position by indicating that the appellant has from time to time suffered both depressive symptoms and some paranoid ideas, has often heard the voices of his deceased parents speaking to him, and has been treated with both anti-depressant and anti-psychotic medication.
4. The appellant has only once before been convicted of a criminal offence, but that one conviction is significant. On 10 June 2004 he was sentenced to three years' imprisonment for an offence of arson contrary to section 1(2) and section 1(3) of the Criminal Damage Act 1971, to which he pleaded had guilty. The circumstances, we understand, were that he had wanted to commit suicide and had started a fire in the property in which he was living. We assume that the basis of the guilty plea was that he was reckless as to the endangering of the lives of others.
5. In the summer of 2008 it seems that the appellant was depressed. He was living a solitary life and drinking far too much. He had lost interest in everyday activities and was neglecting his personal hygiene. He felt lonely and at times suicidal. On 21 June the appellant rang the police from a call box situated a few minutes walk from his flat at 148 Rhodeswell Road, London E14. He reported that he was a mental patient and that he had just set fire to his flat. He gave his name and address and said that he would wait for the police to arrive, which indeed he did.
6. Police officers went to the flat, which is described as being at the bottom middle of a block of several flats, which were all occupied. They found that the appellant had turned fully on two heaters and had draped blankets and towels over them. Fortunately, nothing had caught fire and no damage had, in fact, been caused. The officers then went to the call box and arrested the appellant. He confirmed what he had done and said, "I called the police because I've had enough. I want to go to prison." At the police station he said, "I wanted to burn my place down and the flats".
7. The appellant went on to make full admissions in interview. He said that he had nothing against his neighbours and did not intend to kill any of them. He accepted that they could have been injured if there had been a fire. He described his own actions as a "cry for help". He again said that he wanted to go to prison and would take any help he could get.
8. As we have already noted, the appellant's previous conviction was for the aggravated form of arson under section 1(2) and section 1(3) of the Criminal Damage Act 1971. On the present occasion, however, he was charged only with attempting to commit the simple form of the offence under section 1(1) and section 1(3) of the Act.
9. We are surprised that the Crown Prosecution Service advised that the appellant should be charged only with an attempt to commit the simple form of the offence of arson. We have been assisted today by Mr Sandford, counsel for the respondent, who has read to us the advice given by the reviewing lawyer. Although we see his reasoning, we disagree with it. In our view, the evidence which we have briefly summarised, including the admissions made by the appellant, on the face of it gave rise to a case to answer on a charge of attempting to cause damage by fire, being reckless as to whether the lives of others would thereby be endangered. Nonetheless, we make it plain that we consider this sentence on the basis that the appellant was guilty only of an offence of an attempt to commit the offence of simple arson.
10. When the matter came before the Crown Court for sentence, the court had the assistance both of Dr Falkowski's report and also a pre-sentence report dated 21 August 2008 by Mr Rouse. The former indicated that the appellant had recently managed to abstain from alcohol for a period of months, but that in his depressed mood had resumed drinking and had impulsively attempted to cause a fire. There was no indication that a psychiatric disposal was needed at the time of sentence, although Dr Falkowski felt it important that the appellant's mental state should continue to be monitored. That report did not specifically comment on the issue of dangerousness under the Criminal Justice Act 2003. It seems to us that it was clearly implicit in the report that the appellant could act in a similarly impulsive way if he again became depressed and drunk. The pre-sentence report gave specific consideration to the issue of dangerousness, albeit that the author had in mind the unamended provisions of section 225 of the Criminal Justice Act 2003. Mr Rouse expressed the opinion that there was a medium risk of re-offending and a high risk of harm to the appellant himself and to the public. He observed:

"Since being held on remand Mr Roberts informed me he had gone through detox and had not touched a drop of alcohol. However, he was extremely candid in his appraisal of his chances of remaining abstinent when released from prison, telling me he would immediately return to his previous drinking habits."

Mr Rouse came to the conclusion that the appellant poses a high risk of harm to members of the public who live in close proximity to any future property in which he resides.

11. In all the circumstances of the case, we have reached a similar conclusion. The Recorder in the court below was, in our judgment, correct to find that there is a significant risk to members of the public of serious harm occasioned by the commission by the appellant of further specified offences. Accordingly, the criterion of dangerousness in section 225(1) of the 2003 Act was satisfied. We also agree with the Recorder that this was not a case in which the imposition of a sentence of imprisonment for life would be justified.
12. We turn to consider the terms of section 225(3) of the 2003 Act, which had been amended by the Criminal Justice and Immigration Act 2008 about two months before the appellant came before the Crown Court for sentence. The effect of the amendment is that, even though an offender is dangerous within the terms of the 2003 Act, the discretion to impose a sentence of imprisonment for public protection only arises if one of two conditions is fulfilled. The first is that the offender has previously been convicted of one of the short list of grave offences specified in the new Schedule 15A to the Act. That Schedule does not include either form of the offence of arson, and so the appellant cannot be eligible for a sentence of imprisonment for public protection on that basis. By section 225(3B) the second condition is that:

".... the notional minimum term is at least two years."

The notional minimum term is defined by section 225(3C) as being:

".... that part of the sentence that the court would specify under section 82A(2) of the Sentencing Act (determination of minimum tariff) if it imposed a sentence of imprisonment for public protection but was required to disregard the matter mentioned in section 82A(3)(b)."

As Lord Judge CJ explained in R v C and Others [2008] EWCA Crim 2790, the effect of those statutory amendments is:

"11. .... unless condition 3A is established, an order of imprisonment for public protection may not be imposed under condition 3B unless the offence justifies the specified notional minimum term, even if there is a significant risk of harm."

We add that, under the amended provisions of section 227 of the 2003 Act, a corresponding change has been made in respect of extended sentences.

13. The question which therefore arises in acute form in this case is this. Ignoring any question of whether credit should be given for time spent on remand, did this offence of attempting to commit simple arson merit a determinate sentence of at least four years' imprisonment if a term of imprisonment for public protection was not to be imposed? The Recorder held that it did, in these terms:

"Had it not been appropriate to impose a sentence for public protection, I would have passed a sentence of four years, having regard to the seriousness of the offence and the mitigating factors which include the guilty plea and the fact that you notified the police of your actions and no one was in fact hurt."

On behalf of the appellant it is pointed out that he was entitled to full credit for his immediate admissions and prompt guilty plea, so that in reality the Recorder was there saying that after a trial this offence would have merited a determinate sentence of six years' imprisonment. It is submitted that such a sentence would be manifestly excessive for the offence of attempting to commit simple arson and is a sentence which would be more appropriate to the aggravated form of arson.

14. We are grateful to Mr Dowty on behalf of the appellant for the care he has taken both in his written submissions and in his oral submissions to us today. He has invited our attention to Attorney General's Reference No 23 of 2001 (R v Fielder) [2001] 2 Cr App R(S) 118, a case in which the offender was convicted after a trial of arson being reckless as to the endangering of life, and had a similar previous conviction. In that case this court said that it would have expected at first instance, bearing in mind the offender's previous history, a sentence of between six and seven years' imprisonment. However, there are other decisions of this court, to which Mr Dowty points, in support of a submission that in cases of arson being reckless as to the endangering of life in which there is a guilty plea, a sentence of about three years' imprisonment can be appropriate and sufficient: see, for example, Attorney General's Reference No 5 of 1993 (R v Hartland) (1994) 15 Cr App R(S) 201, Attorney General's Reference No 35 of 1996 (R v Hoyle) [1997] 1 Cr App R(S) 315, R v Stacey [1999] 2 Cr App R(S) 298 (in which it should be noted that this court observed that these are cases which depend very much on their own facts), and R v Bal [2008] EWCA Crim 1434.
15. In relation to cases of simple arson, Mr Dowty on behalf of the appellant points to R v Hales [1999] 2 Cr App R(S) 113, in which the offender had pleaded guilty to pushing a lighted newspaper through a letter box, after drinking heavily. A sentence of two years' imprisonment was reduced on appeal to one of fifteen months' imprisonment. We do not think that that case is of any real assistance here, not least because the appellant Hales was an otherwise law-abiding man whose employer gave oral evidence to the court speaking highly of him. We note that, although that appeal was allowed, this court referred to the fact that, even for simple arson, the maximum penalty is life imprisonment and emphasised that "the seriousness of the offence of arson should never be overlooked". More pertinently, Mr Dowty further relies on R v Joslin [2002] EWCA Crim 1718. In that case the alcoholic offender had attempted to set fire to the nozzle of one of the pumps at a petrol station in a residential area. He had a previous conviction for arson, which had resulted in a sentence of two years' imprisonment. A report assessed that the risk of his re-offending was high. He was originally charged with attempted arson, being reckless as to whether life was endangered. However, that charge was stayed and the offender pleaded guilty to an offence of simple attempted arson. He was sentenced to four years' imprisonment. On appeal this court substituted a term of three years' imprisonment. It emphasised:

"14. .... Despite the obvious seriousness of what this appellant did, we have to bear in mind that what he was sentenced for was an offence of attempted simple arson."

16. In the present case the submission is made that if three years was an appropriate determinate sentence on a guilty plea in the dramatic circumstances in Joslin, a notional determinate sentence of four years is too long here.
17. We have sympathy with that submission. We have very much in mind the words of the Lord Chief Justice in paragraph 12 of the judgment in R v C and Others, reminding sentencers of section 153(2) of the Criminal Justice Act 2003, where he said:

"12. .... courts will no doubt ensure that longer than appropriate sentences are not imposed in order to avoid the restriction created by condition 3B."

18. It will be apparent from what we have said that the recent amendments to section 225 and 227 of the 2003 Act are capable of producing, in circumstances such as these, a result which prevents the court from imposing a sentence designed to further public protection, even though the offender has properly been assessed as dangerous. That consequence in certain circumstances of the recent amendments illustrates, in our view, the importance of giving particular care and consideration to the drafting of the charge which is laid against an offender in circumstances such as the present.
19. This appellant, despite his previous conviction for almost identical conduct, tried to start a fire which, if it had caught, would plainly have put the lives of a number of adults and children at risk. The harm which he might have caused was grave. Depressed though he was, he clearly knew what he was doing.
20. However, we are persuaded by counsel's submissions that in all the circumstances, and in the light of the previous decisions of this court, the Recorder fell into error in concluding as he did that a notional determinate sentence of four years would have been appropriate, even taking into account the guilty plea. It seems to us that, in all the circumstance of the case, four years' imprisonment would have been an appropriate sentence following conviction of this offence after a trial. Having regard to the appellant's guilty plea, for which in our judgment he was entitled to full credit, that must be reduced to a determinate term of 32 months' imprisonment.
21. The consequence of that in our view is this. In our judgment the notional determinate term in this case is not such as would satisfy the condition in section 225(3B), with the result that a sentence of imprisonment for public protection is not available to the court. We remark, as emphasising the point we have made earlier in this judgment, that Mr Dowty readily acknowledged that under the unamended provisions of the 2003 Act, a sentence of imprisonment for public protection, with a term based upon such a notional determinate sentence, would have been unassailable.
22. In those circumstances we allow this appeal to the extent that we quash the sentence of imprisonment for public protection and substitute for it a determinate sentence of 32 months' imprisonment, of which the appellant will serve half.
23. In the circumstances of the case, the appellant is, in our judgment, entitled to credit for the 80 days which he had spent in custody prior to being sentenced.
24. To that extent the appeal is allowed.