No: 97/0297/R2

IN THE COURT OF APPEAL
CRIMINAL DIVISION
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Tuesday 29th April 1997
 
                    B E F O R E :
 
               LORD JUSTICE McCOWAN
 
                 MR JUSTICE OGNALL
 
                         and

                  MR JUSTICE SEDLEY

 
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                    R E G I N A

                       ‑ v ‑

                     IAN WHEELER
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
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MR R WHITTAM appeared on behalf of the Attorney
MISS K MONTGOMERY appeared on behalf of the Offender
 
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                      JUDGMENT
             (As Approved by the Court)
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                   Crown Copyright 
 
                        JUDGMENT
LORD JUSTICE McCOWAN: This is an Attorney General's reference on the ground that a sentence passed by a lower court was unduly lenient.  We have given leave to the Attorney.
      The offender is one Glen Wheeler who is 30 years old.  On 17th December 1996 he pleaded guilty to a single count of arson, being reckless as to whether life would be endangered, and was sentenced to two years' probation with a 60 day training order as a condition. The judge was Assistant Recorder Reddings sitting at Stafford Crown Court.  Each member of this court has recorded the view that this case should never have been put before an Assistant Recorder.  This is an offence of great seriousness both in the abstract and on the particular facts of the case.
      At about 6 pm the offender started a fire in a ground floor flat by setting fire to a cushion on a settee whilst the occupant in the flat was asleep in bed.  It was a ground floor flat in a two storey building.  It was a semi‑detached house.  One can only say with certainty that there was one occupant of the house at the time and that was one John Perry who owned the flat in question.  It cannot be said with any  certainty that there were other occupants, there may well have been and there was no reason for the lighter of the fire to think there would not be.  For all he knew there could well be.
      The building was in Brecknock Road, Hill Top, West Bromwich.  Mr Perry had been to a public house with his flat mate and the defendant.  They had been drinking there as one would expect.  After they came back the flat mate and another visitor left which meant that, as the defendant must have known, it was just he and John Perry present in that flat.  Shortly after 6 pm John Perry went to bed.  The defendant ignited a cushion on the settee and then placed another cushion on top of that one.  He then left the flat and went to a public house.  As he knew that Mr Perry had been drinking he must also have known that he might well fall asleep. Nonetheless he started that fire.  Having done so he left the flat without waking or rousing Mr Perry and without calling the fire brigade.  He went off to a public house instead.  Mr Perry awoke to find his bedroom full of smoke.  He panicked and tried to get out.  The smoke was thick and he could not see where he was going.  He left the building by the front door and asked neighbours to call the fire brigade.  He was then taken by ambulance to a hospital where he was treated  for minor burns and smoke inhalation.  The fire brigade was called at 7.56 pm.  By the time the police arrived at the scene the fire had been extinguished.  The fire investigator concluded that a severe fire had been involved in the rear ground floor room, the mean seat of the fire being the settee to which we have referred. The cost of the damage done was several thousand pounds.
      The defendant took himself to West Bromwich Police Station at 11 pm.  He appeared to be drunk.  He admitted he had set fire to a flat whilst his friend was asleep. He did not know why he had done it but was angry.  In interview the following day he admitted starting the fire and that he had put all the cushions and a quilt together.  When asked what he thought would have happened if John Perry had not woken up and if the fire had not been discovered, he accepted that John Perry would have died.
      The Attorney has been good enough to put forward aggravating and mitigating circumstances to this case. The mitigating features appear to be these:  he attended the police station that evening voluntarily and admitted the offence; he pleaded guilty; a probation officer reported quite favourably upon him saying that what he did had been a real shock to the man who as a result had  stopped drinking.  The aggravating features put forward are the following:  he started the fire deliberately; he knew that John Perry was in the flat and asleep having been drinking; he did not call the fire brigade or take any measure to extinguish the fire or to rouse Mr Perry.  To counteract what the probation officer had said it was a condition of bail that he cooperate with the preparation of his probation enquiry report.  In fact he failed to keep two appointments with the probation service which did not hold out great encouragement for his future.
      It is said on behalf of the Attorney that it is axiomatic that if you commit this sort of offence, save in the most exceptional circumstances, an immediate prison sentence must be imposed.  That we would accept. We were referred to the case of Sparkes (1995) Cr.App.R (S) 393.  The point about that case, where his sentence was reduced, was that the starting of the fire had not been deliberate.  Of course that makes a very considerable difference.  Here the starting of the fire was deliberate and it was done with recklessness as to the endangering of life.  We should have added among the adverse factors so far as this man is concerned that he had a record, although it is right to say not for arson, but his record contained many offences of burglary,  several offences involving violence, affray, threatening behaviour, assault occasioning actual bodily harm and a great many offences of damage to property ‑ one of those offences seems to us to be particularly worrying as it involved him going back to a public house and throwing bricks through the window.
      There is a psychiatric report upon this man but it is of importance to notice that this is not a case where there is any mental trouble or any recommendation of medical treatment.  That, it is suggested by the Attorney, is one of the only circumstances in which it might be permissible for the court to pass anything other than an immediate prison sentence, if in fact it was a case of mental trouble.  That again we would accept.
      The offender is a man who in our judgment must cause considerable anxieties to the court because as we have seen he is an abuser of drink, or has been, he now says that he has given it up.  He has also been an abuser of drugs and he is a man who has committed acts of violence and been before the courts for violence and also for acts of damage to property, which is obviously akin to arson.  He is a man who seems unable to control himself.  We noted the phrase that he did not know why he had done it but he was angry; that can only cause  anxiety.  He was the sort of person who could do this sort of act because he was angry and not for any other reason.
      We have no doubt whatsoever that an offence of arson endangering life recklessly is one which, save in the most exceptional circumstances and/or in the case of mental trouble, must attract an immediate prison sentence.  Further to that we say that it is a case where the prison sentence will have to be severe, partly to protect the public, partly to deter the man himself and to deter anyone else from doing this sort of thing again.  That is a necessary aspect of the sentencing exercise.
      Being such as it was the offence has to attract a severe sentence of imprisonment.  We only get limited assistance from any authority to which we have been referred.  We consider that the right sentence in these cases, and certainly the right sentence in the present case, would have been one of six years' imprisonment. We take into account, of course we have to, what has become known as the double jeopardy principle ‑ this man has once before faced his sentence, he thought he had received his sentence and that was the end of it, he seems to have made some efforts since to curb his drinking and now he has had to face sentence again.  We  take account of that factor and in the circumstances we therefore reduce the sentence of imprisonment from one of six years to one of four‑and‑a‑half years and to that extent we substitute one sentence for another.  That sentence he will have to serve running from today.
THE CROWN: My Lord the offender has not been present today and I think your Lordship can indicate under paragraph 10 of schedule 3 of the 1988 Act that it should run from when he surrenders to custody.
LORD JUSTICE McCOWAN: Yes.  You are right.
THE CROWN: I know that some courts have allowed an offender some 48 hours to surrender themselves voluntarily.
LORD JUSTICE McCOWAN: Yes, I believe that is the common approach.  Very well, we will do that.  That is our order.  He must surrender to West Bromwich Police Station within 48 hours.  We believe, Miss Montgomery, that that is his nearest police station.
MISS MONTGOMERY: Yes, my Lord.