England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18 July 2018

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MR JUSTICE WILLIAM DAVIS: On 14 August 2017, in the Crown Court at Sheffield, the appellant pleaded guilty to an offence of arson being reckless as to whether life would be endangered. On 12 March 2018 he was sentenced at the same court to a period of three years' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.

The appellant was born on 6 November 2000 (so he is still 17). We make an order pursuant to section 45 preventing publication of any matter likely to lead members of the public to identify him. This order shall continue until his 18th birthday. We shall refer to him in this judgment as the appellant throughout.

At around 10.40 pm on Sunday 15 May 2016 the appellant was a passenger on a bus which arrived at the bus station in Rotherham. He intended to get off the bus there. He was the last passenger to do so. The driver had already alighted in order to stretch his legs. Before the appellant got off, he set fire with a cigarette lighter to newspapers and magazines which had been left on the floor of the bus.

A short while later new passengers got on to the bus. They smelt smoke and alerted the driver. The driver got on to the bus. He now could see flames coming from seats near to the back of the bus. He tried to put out the fire with his fire extinguisher supplied on the bus itself. He could not do so. Quickly, the whole bus was engulfed in flames. It was completely destroyed.

Worse was to follow. The fire spread to the bus station itself. Very significant damage was done to the fabric of the bus station. Damage was caused to power and electrical cables, which disabled lights, automatic doors, ticket machines and the like. Roof cladding in an area of the multi-storey car park above the bus station was damaged. The overall cost of reinstatement was said to be region of £1.8 million.

The appellant was readily identifiable from CCTV footage, in particular on the bus. For reasons of which we are not aware, he was not arrested and interviewed until January 2017. When interviewed, he accepted he was the person depicted on the CCTV footage from the bus but denied starting a fire.

It was another six months before he was summoned to attend court. The reason for that delay was not apparent even by the time of the sentencing hearing.

The youth court immediately sent him to the Crown Court under the grave crime provisions.

On 14 August 2017 the appellant pleaded guilty at the first hearing in the Crown Court to the offence of arson being reckless as to whether life would be endangered.

This was on an unacceptable basis. He said that the fire had been started by a carelessly discarded cigarette. The judge who conducted the hearing determined that a Newton hearing was required. That hearing was fixed for 18 January 2018.

Why there was such a long delay in the listing of a case for a defendant then aged 16 is not clear to us; the issue to be determined was hardly complicated. In the event the hearing was not necessary: the appellant's solicitors subsequently notified the court and the prosecution that the basis of the plea now was that the appellant deliberately had lit a newspaper and had left it without ensuring that it had gone out. This was accepted as an accurate account.

Unfortunately, the psychiatric report which had been ordered at or shortly after the entering of the plea was still not available by the date on which the Newton hearing was due to take place. It was only available on 12 March 2018, which was, as we have already indicated, the date of sentence.

The judge had a full pre-sentence report prepared by a member of the Rotherham Youth Offending Team. That disclosed that the appellant had been a 'looked after' child since November 2015, which is when his mother had placed him voluntarily into care. The appellant did not want to go into care, but all of his various family members made it clear that he could not live with any of them. Despite this, he continued to visit the area of Rotherham where they all lived. It was as he was on his way back from that area to a children's home in Barnsley that the offence was committed in May 2016.

The pre-sentence report recounted the appellant's criminal history since the events of May 2016. At that time, he had no findings of guilt. His subsequent history consisted of appearances in the youth court: first, in October 2016, for offences of theft, criminal damage and threatening behaviour, when a referral order was made - the offences dating from the same period as the arson offence; second, in September 2017 he was sentenced for offences of theft and criminal damage, the sentence being a twelve-month youth rehabilitation order. The offences dealt with then dated from May 2017.

The period between May 2016 and May 2017 was a period during which the appellant had been moved to no less than four different placements.

In June 2017 the local authority sent him to an activity placement centre in Lancashire for a period of twelve weeks. This had led to a turnaround in his behaviour. He then returned to South Yorkshire, where he lived in semi-independent accommodation, undertaking education and training.

On 28 January 2018 the author of the pre-sentence report was able to write:

"[The appellant was] a very different young person, having matured and developed into a young man open and willing to change his behaviour and focused on making a success of his life."

The report indicated that this progress would be at risk in the event of a custodial sentence.

The judge also had a psychiatric report from a child and adolescent psychiatrist. This report concluded that the appellant had symptoms consistent with ADHD - a condition likely to give rise to impulsive behaviour. Psychiatric intervention in the community was suggested.

In sentencing, the judge referred to previous decisions of this court concerning the sentencing of young people convicted of this offence: in particular, Finnerty [2016] EWCA Crim 1513 and Attorney-General's Reference No 58 of 2007 [2007] EWCA Crim 2057. These were cases of young defendants in respect of whom sentences of three-and-a-half years and four years' detention respectively were the outcome.

In our view they provided no real assistance to the judge in this case. In Finnerty (a young man who was 16) the appellant set two separate fires in a church about a week apart. The fires were set deliberately. The second fire put children at risk. The damage caused was estimated at £4.5 million. In Attorney-General's Reference No 58 of 2007 the offender had broken into a school in order quite deliberately to set a fire. Having done so, he stayed to watch the flames take hold, which they did, causing £3 million worth of damage. That offender had a poor record. He showed no signs of responding to the help offered to him.

The judge in this case crystallised his sentence with these words:

"The arithmetical approach that I take to your case is to start with a sentence of seven years' detention if you'd been an adult, but, in accordance with the way the guideline on the subject of sentencing youths suggests, to take more appropriately not that starting point ... but a starting point ... two-thirds of that - the sentence therefore of 56 months. From that, you are also entitled to credit for your guilty plea, and ... giving you a generous full discount for your plea of guilty ... the sentence I am going to pass upon you is one of three years' detention."

The first criticism that can be made of that encapsulation of the sentencing process is that the starting point, even for an adult was too high. The usual range of sentences after trial for arson intending to endanger life is recognised as being between eight to ten years in the ordinary case. The authorities recognise that some cases of reckless arson can come close to the culpability involved in intentionally endangering life, in which case a sentence close to the lower end of the eight to ten-year range will be appropriate.

This is not such a case. It is, in reality, difficult to imagine an ordinary adult doing what this appellant did, namely messing around with a cigarette lighter and setting fire to some newspaper on the bus. It might be possible to anticipate an adult with some form of alcohol problem or the like doing so. If the consequences were as occurred here, the sentence after trial for that adult would not exceed six years' imprisonment.

The second criticism is that the judge's reference to the guideline on sentencing for youths was cursory and inadequate. He simply stated, as we have rehearsed, that the sentence after trial should be two-thirds of the sentence appropriate for an adult.

Not only was this an inaccurate reflection of the reduction suggested in the guideline, but it also failed to reflect the detailed guidance set out in that guideline. This appellant first appeared at court after 1 June 2017. Thus the Sentencing Council guideline on sentencing children and young people applied.

It is unnecessary for us to cite from this guideline at length: it is a public document. But it is a guideline that was considered very carefully and in detail by the Sentencing Council, and sets out clear and unequivocal sentencing principles in relation to young people.

Paragraphs 1.2, 1.5, and 1.16 of the general sentencing principles are particularly apposite in this case.

Paragraph 1.2 emphasises that, whilst the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person as opposed to offence focused, with the focus being on rehabilitation where possible.

In paragraph 1.5 it is emphasised that children and young people are not mini adults; they have not attained full maturity. That impacts on their decision-making and risk-taking behaviour.

Paragraph 1.16 in some detail deals with the effect and significance of an offender being a 'looked after' child and the complexities and difficulties to which that gives rise.

It is clear that proper consideration of these principles was not applied by the judge in his sentencing.

The third matter we must raise is that the guideline sets as a broad guide the appropriate sentence for those aged 15-17 as being in the region of a half to two-thirds of the adult sentence.

This appellant was to be treated for sentencing purposes as a 15-year-old. That was his age at the date of the offence. Though the guideline is not to be treated rigidly, there is no proper basis for this appellant's reduction having been set at two-thirds rather than a half.

The consequence of those matters is that any sentence of custody after a trial would have been three years' detention. The judge gave full discount for plea. There is no criticism of that. The plea was indeed tendered at the first opportunity. Therefore, the maximum sentence of custody the judge should have imposed was two years' detention. If a sentence of custody then was appropriate, it would have been a sentence by way of detention and training order.

The appellant, as is clear, was sentenced nearly two years after the event. The judge found that most of that delay was the fault of the appellant. This was not a finding justified on the chronology. It is unclear why seven months elapsed between the offence and the appellant's arrest. There is no indication that it was any fault of his. Once he had been arrested, there was a completely unexplained delay of six months whilst a charging decision was made. The appellant could not have been sentenced without a psychiatric report. That report was ordered at or shortly after the date of the plea being tendered and it was not available until some seven months later. Any equivocation by the appellant in relation to his plea had no causative relevance to the delay.

The delay in this case should have been a significant factor in the sentencing exercise. Twenty-two months in the life of an immature troubled teenager is a very long time indeed. This was delay largely outside the control of the appellant.

The judge, in sentencing, came to the conclusion that the seriousness of the offence, in terms of the loss and damage caused was such that nothing other than, as he put it, "a not insignificant custodial sentence" was possible. That approach perfectly properly reflected seriousness of the offence, but it failed to reflect the very low culpability involved in the offence and it failed to reflect the approach required by the Sentencing Council guideline.

There will be many cases in which an offence of this kind, committed even by a 15-year-old, will result in immediate custody. But this, given all of the circumstances we have set out, was an exceptional case. We have come to the conclusion that the proper course for the judge in this case would have been to take the course suggested by the author of the pre-sentence report, namely a youth rehabilitation order coupled with an intensive supervision and surveillance programme.

It follows, therefore, that we propose to quash the sentence of three years' detention and substitute in its place just such a programme as suggested. Inquiries have been made this morning. It has been confirmed that such a programme remains available and a youth offending team is anxious to have the opportunity to put it into effect. Therefore, we make a youth rehabilitation order for a period of eighteen months.

There will be an intensive supervision and surveillance programme attached to that youth rehabilitation order.

It will involve a curfew requirement - an electronically monitored curfew - for three months. The period of curfew will be between 7 pm and 7 am. The address at which the curfew applies will be the address as notified from time to time by Sheffield Youth Offending Team.

There will be an unpaid work requirement to complete 100 hours.

There will be an activity requirement to engage with sixteen sessions of junior attendance centre.

The youth rehabilitation order will also have attached to it a supervision requirement for eighteen months.

The purpose of the order is as set out in the Youth Offending Team report.

This is clearly an exceptional course, but this was an unusual and exceptional case. It follows that we allow the appeal in the way we have set out.

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