England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		12 October 2017

LORD JUSTICE TREACY:

1. This is an application relating to sentence referred to the full court by the Registrar. We grant leave.
2. This appellant pleaded guilty at Chelmsford Crown Court on 3rd March 2017. The offences admitted were manslaughter (count 3) and arson being reckless as to whether life is endangered (count 4). The appellant had on a previous occasion pleaded guilty to a domestic burglary.
3. A sentence of 12 years' imprisonment was imposed for manslaughter with eight years concurrent for the arson offence. No separate penalty was imposed for the burglary.
4. The burglary was committed on 13th June 2016. It appears that at about 8 pm when the elderly female occupant was in her home and the male occupant was in the garden, this appellant entered through an open door and stole a handbag. The female occupant became aware that someone was in her house and the appellant was pursued down the street by her husband and a neighbour. However, she escaped. CCTV captured her emptying the handbag and a chequebook was found on her when she was arrested at a later time.
5. Having been arrested she was released on bail and so was free to commit the further offences. On 4th September 2016 the appellant, who had lived in a flat with the deceased for a number of years, occupying a bedroom whilst he slept in the living room, started a fire in the early hours of the morning. The deceased was a man in his late seventies and in poor health. He died as a result of inhalation of carbon monoxide and other toxic substances. The post mortem revealed that he had been alive through the progress of the fire.
6. The appellant was a long term drug user. She had a boyfriend and the evidence showed that social services had been involved with the deceased's care since early 2016. They were concerned about the apparently dominating and exploitative attitude of the appellant and her boyfriend towards the deceased. There were also concerns about the apparent deterioration in the deceased's appearance in the months before he died.
7. The flat was in a multi-occupied building and another resident became aware of the fire. He entered the deceased's flat on his hands and knees in an effort to save the deceased but was driven back by the smoke. Another neighbour also made attempts on a number of occasions; these were unsuccessful. He then went upstairs to help a 96-year-old woman whom he had to pick up and carry out of the building. By the time a fire-fighter reached the deceased he was dead.
8. The appellant was seen in the vicinity of the flats. She had left the flat after starting the fire and made no attempt to go into the flat and help the deceased. She left the scene before police could arrest her. She was arrested later that night.
9. When interviewed she said that she had been smoking crack cocaine and gave an account of a gas explosion. She denied any responsibility for setting the fire. However, experts carried out tests which refuted the account put forward in interview. The investigators concluded that the fire was started using a flame. It had begun in the bedroom around furniture which had been moved into the middle of the room. There had been no gas explosion and the investigation strongly suggested that it was unlikely that a cigarette or recent crack pipe was the source of the fire.
10. This appellant is now 43. She has 45 previous convictions recorded against her in the last dozen years which seem to be largely coincidental with her drug abuse. None of that offending is of a nature comparable to the present matter but it is a relevant fact that she has been a persistent offender who had not complied with court orders up to the time of the commission of the present offences.
11. , There was no pre-sentence report, but there was a psychiatric report showing that there was no history of any enduring mental disorder. The appellant had a significant history of serious substance misuse, involving crack cocaine and very strong beer on a regular basis. Once the appellant had been remanded in custody and the substance abuse had stopped, symptoms from that abuse had abated.
12. , The grounds of appeal urge that a sentence of 12 years' imprisonment was manifestly excessive representing a starting point of 18 years before full credit for guilty pleas. That figure was reached by a process of identifying a starting point of nine years and then working upwards by a process of aggregating aggravating features in a manner which, it was submitted, was unclear and unsatisfactory. We consider that there is force in those submissions.
13. , In passing sentence the judge referred to a document which was described as a draft guideline for unlawful act manslaughter. The document was in fact nothing of the sort. It was a prototype developed by the Sentencing Council in the very early stages of its consideration of a proposed manslaughter guideline. It had been distributed to some judges on a training course with a view to road-testing certain aspects of the proposals. It was never intended for any wider use and should never have been used in this case. That document was provided to judges on a course in September 2016. Thereafter there were many changes made by the Sentencing Council to its drafts, even before a draft in the form fit for public consultation was published in July 2017. That consultation process has only closed this week.
14. , It ought by now to be well-known to judges and practitioners that draft guidelines, even in a consultation paper, should not be used by sentencing courts. This court made that very plain in R v Boakye [2013] 1 Cr.App.R (S) 2 and in a number of subsequent cases. It is only when a guideline becomes definitive that courts should use it as a sentencing guide. Until that occurs, in relation to manslaughter in 2018, courts should sentence by reference to existing case law and practice.
15. In passing sentence, the judge also chose to pass no separate penalty in relation to the burglary, despite the fact that it was committed on a separate occasion and was of a type which in its own right would have attracted a custodial sentence since the burglary took place whilst the occupier was at home. The judge said she took account of the burglary in the main sentence on count 3, but better practice would have been to pass a separate sentence for a different type of offence of some gravity committed on a different occasion.
16. The main offences of reckless arson and manslaughter involve not only the death of one person but the significant endangerment of others from a fire started at night in a multi-occupied building. The dangers are obvious and the episode with the 96-year-old woman is a graphic illustration of that. There was a significant level of damage done and smoke from the fire hampered or, in the deceased's case, prevented attempts at rescue. It appears that the offender was affected by drugs when she started the fire, but she had voluntarily put herself into that state. We surmise that that was a factor in the Crown's decision to accept a plea to reckless arson as opposed to arson with intent.
17. We regard the appellant's previous convictions as of some relevance, given their frequency, persistence and their relation to the appellant's drug abuse, but we do not attach major weight to them. As to the evidence of financial and emotional exploitation of the deceased over a period prior to his death, we note firstly that those matters did not form the basis of any charge, although it appears that the general tenor of the evidence was not disputed; secondly, we consider that those matters are not directly relevant to the arson and manslaughter charges, but that they have a background relevance. We consider that they operate primarily so as to show an absence of any mitigation based for example on otherwise good care or concern for the deceased. Instead, that background evidence shows a pattern of disregard for the deceased, culminating in the starting of a fire in the flat on the night in question and the leaving of the deceased to his fate.
18. In Attorney General's Reference No 68 of 2008 (Myrie) [2008] EWCA Crim 3188, this court indicated a range between eight and ten years' imprisonment for arson with intent to endanger life. However, the court went on to say that the dividing line between the worst cases of reckless arson and the least serious cases of arson with intent to endanger life was a fine one. Here, a number of lives were endangered in circumstances where the risk was significant. Had this solely been a case of reckless arson it would have been a bad one, but the fact of a death caused puts it into a different league. Of the greatest importance is the fact that a vulnerable old person in poor health, and thus not in a position effectively to assist himself, was fatally trapped in his home during the night by an offender who left the premises unscathed and did nothing at all to help him.
19. We have considered R v Mahmood [2012] 2 Cr.App.R (S) 53 and R v Khatoon [2014] EWCA Crim 881 as examples of manslaughter by arson. We recognise the increased focus in manslaughter sentencing on the fact of death caused since the decision in Attorney General's References Nos 60, 62 and 63 of 2009 (Appleby) [2010] 2 Cr.App.R (S) 2653.
20. In our judgment for the offence of manslaughter a term of at least 14 years was appropriate before credit for plea. A consecutive term of 12 months was appropriate for the burglary. Thus the judge's figure of 18 years prior to credit for plea was too high.
21. , We have to go on to consider the question of credit for a guilty plea. The judge granted full credit and there is no suggestion that that was not appropriate. Applying the same approach to the aggregate of 15 years reduces the overall sentence to one of 10 years. We therefore allow the appeal by substituting a term of 10 years for the 12 years imposed on count 3. The sentence on count 4 remains unchanged. In relation to the burglary offence we impose a term of eight months to run concurrently to the other sentences. The overall effect is that this appeal is allowed by reducing the sentence to one of 10 years from the 12 years imposed below.

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