England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		24th February 2010

1. MR JUSTICE FOSKETT: On 16th June 2009 at Sheffield Crown Court, the appellant pleaded guilty to an offence of attempted arson with intent to endanger life and to another count of arson. On 17th September 2009 he appeared before His Honour Judge Moore for sentence. In relation to the offence of attempted arson with intent to endanger life, he was sentenced to 9 years' imprisonment and in relation to the arson offence he was sentenced to 2 years' imprisonment, consecutive to the other sentence, making 11 years' imprisonment in all, with a direction that 221 days spent on remand should count towards sentence. He appeals against the total sentence with the permission of the single judge.
2. What happened in this case is clear. Why it happened is not. The two offences were committed against two families in the Erskine Crescent and Erskine Road areas of Sheffield within a 5-minute period or so on the night of Monday 22nd October 2007. There were connections between the families. In the house in Erskine Crescent were Rebecca Ray, her partner, Ashley Eyre, and their two young children. The children were in bed, but it should be said that there was no evidence that the appellant was aware that there were two young children present in the house.
3. The target of the second attack in Erskine Road was a Ford Escort van belonging to Craig Smith, the father of Mick Smith who was Ashley Eyre's best friend. It should be noted that Ashley Eyre was known to the police.
4. At about 10.35 pm Rebecca Ray and Ashley Eyre were watching the television in the living room. They noticed two figures on the footpath outside who were clearly interested in the house. Having been observed, those two figures moved off. A short while later there was a loud bang at the front door. Rebecca Ray opened it to find shattered glass and an overpowering smell of petrol. A makeshift petrol bomb had been thrown. A tissue had been stuck into the neck of an Alcopop bottle. The issue had been lit but it had failed to ignite the petrol. As the judge observed in his sentencing remarks, had the taper stayed alight for a few more seconds the whole house would have gone up. That observation demonstrates how wafer thin is the distinction between an offence of murder or manslaughter, when people including children die in this kind of attack, the full offence of arson with intent to endanger life where no one dies and an attempt to commit arson with intent to endanger life. When someone is convicted of murder in such circumstances very substantial minimum terms of imprisonment before consideration for release by the Parole Board are almost invariably recommended. Where there is a conviction for manslaughter very substantial prison sentence are imposed.
5. In Attorney-General's Reference No 68 of 2008 [2008] EWCA 3088, where the defendant, using petrol, had started fires in the vicinity of a house that he knew was occupied, this court identified the normal range for an offence of arson with intent to danger life as 8 to 10 years' imprisonment, following a trial. That general bracket has been confirmed in subsequent cases. Those who elect to take part in such offences are not just dicing with the deaths of the occupants properties targeted, they are taking huge chances with their own liberty and a failed attempt involves no less a wicked intent than a full offence of arson with intent to endanger life.
6. The appellant was taking those chances when he threw the petrol bomb at the property in Erskine Crescent, although it is a fair point that is made on his behalf that he did not deliberately put petrol through the letter box, as is sometimes seen in this kind of case. Five minutes later he attempted to set alight a van belonging to Craig Smith. That was observed and put out without too much damage. Damage amounting to about £500 worth was caused. An adjacent parked car had to be moved to avoid it being damaged.
7. The fire was caused by an almost identical makeshift petrol bomb. The Crown's case was that there was a clear connection between the two families and that these were targeted attacks. In the absence of any other explanation, that seemed an irresistible inference. The judge so concluded and we are in no position to say that he was wrong about that. Indeed, in our judgment, it seems to be entirely right.
8. The appellant's blood was found at the front door of the premises in Erskine Crescent. In December 2007 he was arrested in Rochdale. He denied any involvement, saying he had not been in Sheffield for some 2 years, a denial that he maintained up until a week before the trial was due to take place.
9. The suggestion contained in the pre-sentence report that this was all part of drunken and drug-fuelled spree was specifically rejected by the prosecution, and the judge plainly thought, wholly justifiably in our view, that this was quite implausible. He said this in his sentencing remarks:

"I reject as not capable of reasonable belief that these attacks were random, not targeted and just the product of drink, drugs and a quest for excitement. The Erskine Road area of the city, between Gleadless Road and Norfolk Park, is right across the city from any roads from Rochdale and Manchester. I am satisfied so that I am sure that, for reasons which are not yet known publicly, you were brought over from Rochdale in order to throw a petrol bomb at this house whilst the people were in it. It was 10.35 at night and you knew they were in."

So what lay behind this remains a mystery. The judge gave the appellant the opportunity to call or give evidence as to the background of the offences but he did not avail himself of that opportunity.

10. So was the judge entitled to pass the sentences that he did? In our judgment, the judge was plainly entitled and obliged to take a very serious view of this matter. But we do take the view that in the circumstances, particularly now we have had drawn to our attention the very close proximity of the two locations where the offences took place, that this was not a case in which consecutive sentences should have been imposed for two aspects of what was effectively one episode. There is, in our judgment, no doubt at all that the second aspect of the episode aggravated the first and plainly is not to be ignored, but when it comes to the question of imposing a consecutive sentence, we think with respect the learned judge erred in that sense. There is nothing wrong in principle, in our judgment, with a sentence of 2 years' imprisonment for the offence that was committed and reflected in count 2, but in our judgment that should have been made concurrent with any sentence passed on count 1.
11. So the issue is also then whether 9 years on count 1 is the appropriate sentence in this particular case. We have already referred to the proposition that the general bracket is said to be between 8 and 10 years for the full offence after a trial. Against that background, and bearing in mind this was an unsuccessful attempt, we think 9 years, following a plea of guilty albeit late one and in the light of making the sentence on count 2 was concurrent, too long. Doing the best we can on the basis of material which is not entirely clear, largely because the appellant has, as it were, failed to come clean as to what precisely lay behind all this, and bearing in mind that by making the sentence on count 2 concurrent with the sentence on count 1 we have already reduced the overall sentence by 2 years, we think that the proper sentence on count 1, would be one of 8 years' imprisonment. So that will be substituted and the sentence on count 2 will be made concurrent resulting in a an overall sentence of 8 years' imprisonment. To that extent and on that basis the appeal is allowed.