Scottish High Court of Justiciary Decisons

CROWN APPEAL BY THE RT. HON. LORD HARDIE, HER MAJESTY'S ADVOCATE v. KEVIN IAN WALLACE [1999] ScotHC 63 (11th March, 1999)

On 1 December 1998 the respondent pled guilty to a charge of wilful fireraising. As originally framed the charge also included an allegation of an attempt to murder Mr. and Mrs. Strachan, but the Crown did not insist upon it.

According to the report by the sentencing judge, when he returned home in the first or second week of February 1998 the respondent discovered that his wife had left, taking both of their children with her. Unknown to him she had gone to a women's refuge. The respondent attempted to contact her parents, Mr. and Mrs. Strachan, in order to find out where his wife and children had gone. Mr. Strachan told him that he could not say where they were. However, the police made certain enquiries after which they assured him that they were safe and well. On the evening of 17 February Mr. Strachan had retired to bed in a rear bedroom of the house. After 11 p.m. he was wakened by a noise and found that a fire had started in the bedroom and had taken hold of the bed itself. He fetched a fire extinguisher from the kitchen but it proved inadequate to extinguish the fire which became more intense. He was terrified by the situation. Meanwhile his wife realised what was happening, and the fire brigade were summoned. The couple left the house, and Mr. Strachan was removed to hospital. In due course the fire was extinguished. Acting on information provided by eye witnesses the police detained the respondent. Initially he denied any responsibility for the fire. However, at 5 a.m. on the following morning he made a full and detailed confession to the police. He explained to them that he had been under some strain as a result of the departure of his wife and children. He had gone to see a friend who had put the idea of the crime into his head. Milk bottles from the respondent's house were used to contain the accelerant, which was petrol obtained from a local petrol station. The respondent and his friend went to the rear of the house. He himself put a brick through the window. After filling a milk bottle with petrol he saw that there were flames already within the house. Then he threw into the house a bottle which he had filled.

The Lord Advocate has appealed against the sentence which was imposed on the respondent on the ground that it appeared to him that the sentence imposed was unduly lenient. For the reasons set out in the grounds of appeal he maintains that a more severe sentence was necessary to mark the gravity of the crime and in order to express society's condemnation of it.

Before coming to the arguments which were presented by the Advocate depute in support of his appeal, two points may be noted. The first is that the first ground of appeal contains the allegation that the respondent "enlisted the assistance of a second person in order to execute the crime". The Advocate depute frankly accepted that this statement was inaccurate. The most that he could say was that in a conversation between the respondent and his friend the latter suggested the crime, after which the respondent acted along with him in carrying it out. It should not be necessary for this court to repeat what was said in H.M.A. v. McKay 1996 S.C.C.R. 410 as to the standard of care and accuracy which this court is entitled to expect from the Lord Advocate and his advisers in the selection and presentation of appeals of the present kind. The present case is a regrettable example of departure from that standard. However, that should not deflect this court from a full consideration of the true substance of the appeal. The second point is that the grounds of appeal make no mention of the factors which were relied upon by the respondent in mitigation at the time when he was sentenced, and in addressing this court the Advocate depute said very little about them. In these circumstances the grounds of appeal appear to us to entail that it is claimed that the sentence was unduly lenient, even if those factors were given an interpretation which was the most favourable from the point of view of the respondent.

In presenting the appeal the Advocate depute emphasised the premeditated character of the respondent's behaviour in obtaining the means by which to set fire to the house, preparing the bottles and breaking the bedroom window. He would have been familiar with the house and must have known that this was the bedroom used by Mr. and Mrs. Strachan, and that it was likely that one or both of them was in bed. The respondent had thrown his bottle of petrol through the broken window when he knew that the fire had already been started. It was a small house and the fire took immediate effect in the bedroom. The Advocate depute drew attention to the information which had been given to the sentencing judge including Mr. Strachan's description of the scene as an "inferno" and his own state as being one of "blind terror". The Advocate depute also pointed out the effects upon Mr. Strachan. The sentencing judge was informed that he was taken to hospital in a state of considerable distress. Fortunately he had been affected by smoke inhalation only to a limited extent. However, he had not been quite so fortunate psychologically. The hospital records described him as traumatised and scared. Following his discharge from hospital he was seen by his doctor who noted persistent symptoms of depression, a poor sleep pattern with a lack of enthusiasm. He had required a course of high dosage anti-depressants. He continued to experience flashbacks. As at the date of the sentence it was probable that he would require assistance by way of medication for several more months. As could be seen from the photographs, the house was substantially damaged. It was estimated that the cost of repair would be about £14,000. Mr. and Mrs. Strachan had lost a number of personal possessions as well as household furnishings.

In connection with these matters the Advocate depute drew our attention to a passage in the report by the sentencing judge in which, having pointed out that the respondent's friend had raised the idea of the crime and had actually started the fire, he continued by saying:

The sentencing judge went on to say that while the conduct of the respondent was deplorable and a significant custodial sentence was necessary, he disagreed with the contentions advanced in the grounds of appeal. The Advocate depute submitted that the sentencing judge had materially understated the seriousness of the case in saying merely that there was "some degree of premeditation and preparation" and that there was "some danger to the occupants of the house". The fact that they were able to react quickly in the situation did not take away from the fact that the respondent's conduct had been such as to place them in clear peril of their lives. It was also an understatement to refer to the conduct of the respondent as "deplorable".

Miss Scott sought to answer these criticisms by emphasising that the question was not whether the sentencing judge had underplayed certain factors but whether the sentence which he imposed was unduly lenient. In saying that there had been "some measure of premeditation and preparation" the sentencing judge was apparently referring to the fact that the respondent and his friend had proceeded at once to implement the idea which the respondent had taken up. She also pointed out that there was no suggestion that the sentencing judge had based his approach to sentence

on the footing that the fire was the idea of someone else, or that the occupants had not been in any danger. However, she could not offer an explanation as to the relevance of the comment by the sentencing judge when he said that Mr. and Mrs. Strachan were able to react quickly to the situation which had been created.

We have given careful consideration to the report by the sentencing judge, and we have had the advantage of reading the transcript of the information which was put before him. Having done so we are left with a clear impression that in the passage criticised by the Advocate depute the sentencing judge failed to take adequate account of the deliberate steps which the respondent took to set fire to the house, including adding further petrol when the fire had already started in the bedroom. He also, in our view, failed to give adequate weight to the grave danger in which he placed the occupant of a room which he must have known was being used as a bedroom.

We next require to consider the factors which were relied upon before the sentencing judge in mitigation of sentence. Reliance was placed on the fact that the respondent's friend was an older man. The idea of the crime was conceived when he and the respondent had been drinking. The intention had been to cause a "fright" and not a substantial fire. It was pointed out that the respondent himself had not started the fire. In view of what we have stated earlier, we do not regard these points as impressive. Of more significance is the fact that the respondent had expressed his remorse for what had happened, realising the serious harm which his actions had caused. He was described as having been very greatly upset by his matrimonial situation. The sentencing judge was asked to take into account a number of reports and documents. These included a social enquiry report which explained that prior to

the incident his wife's health had begun to improve after a spell of illness. However, as this was happening the respondent's own mental well-being began to deteriorate and he suffered depression, for which he had required treatment. Since the incident he and his wife had attended family therapy sessions to try to improve the quality of their relationship. They felt that their marriage would survive. The report also showed the respondent had a relatively consistent employment record, and that he and his wife had worked hard to resolve their marital difficulties, for the benefit of their children with whom they had a close relationship. The sentencing judge was also provided with a psychiatric report on the respondent which brought out that he had felt bitterness towards his wife and Mrs. Strachan, whom he had always seen as trying to separate them. The psychiatrist also stated that the respondent's personality had been damaged by a difficult childhood. At the time of the offence he was certainly in a distressed state. The sentencing judge also had before him a report from Voluntary Service Aberdeen which expressed the view that the respondent was committed to minimising the effect on his children of the upset and disruption in his marriage. There was also a reference from an employer which spoke of the excellent work which he had done in that employment. The respondent's wife, with whom he had become reconciled, had written expressing the view that the respondent had acted totally out of character. Miss Scott founded on these factors, emphasising that it was unlikely that the respondent would repeat the kind of conduct to which he had pled guilty.

In the whole circumstances we have come to the view that, even when the most favourable consideration is given to the mitigating circumstances which were founded upon by the respondent, the sentence passed on the respondent was unduly lenient. In particular, for the reasons which we have given earlier in this opinion, it is evident that the sentencing judge gave insufficient weight to information which pointed to the deliberate and dangerous nature of the respondent's conduct. We are satisfied that the sentence imposed fell outside the range of sentences which the sentencing judge, applying his mind to all the relevant factors, could reasonably have considered appropriate. It is appropriate that we should increase that sentence. We will quash the sentence of 30 months imprisonment, and substitute a sentence of four years imprisonment which will, as before, date from 1 December 1998.