No: 2006/3683/A8 
Neutral Citation Number: [2006] EWCA Crim 2637
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Monday, 16 October 2006
 
B E F O R E:

LORD JUSTICE HOOPER 

MR JUSTICE AIKENS 

MR JUSTICE LLOYD JONES 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 81 OF 2006    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL
MR D SHELLEY appeared on behalf of the OFFENDER
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J U D G M E N T 
1.	LORD JUSTICE HOOPER:  This is a reference by the Attorney General under section 36 of the Criminal Justice Act 1988.  We grant the necessary leave.  During the course of the oral argument it became clear that Mr Shelley, who appears for the offender, conceded that the sentence which the learned judge passed was unduly lenient and the judge ought to have passed a sentence of imprisonment for public protection.  In those circumstances this judgment can be brief.
2.	Having previously pleaded not guilty at a Plea and Case Management Hearing on 23rd January 2006, the offender pleaded guilty before His Honour Judge Burgess at Derby Crown Court to one count of arson being reckless as to whether life was endangered, contrary to section 1(2) and (3) of the Criminal Damage Act 1971. The offence was committed on 1st August 2005. Sentence was adjourned for the preparation of reports.  
3.	On 12th April 2006 the case was listed for sentence and opened in full to His Honour Judge Pugsley, but sentence was adjourned so that a psychiatrist, Dr Mendelson, could attend court to give evidence and a psychologist could be instructed. 
4.	On 29th June 2006 the offender was sentenced to four years' imprisonment. The offender was given credit for time spent in custody on remand and a total of 330 days was to be counted pursuant to section 240(3) of the Criminal Justice Act 2003.  The prosecution offered no evidence on an alternative count on the indictment of arson with intent to endanger life and a not guilty verdict was entered.  
5.	The facts in summary are that the offender who, after three-and-a-half years of separation, could not accept that his relationship with his former partner was over, formed a particular animus against her female friend. After an evening drinking he took petrol to the friend's home where the friend was sleeping with her children aged six, nine and 11 years. The offender set light to the floor inside the porch of the first floor flat, which has only one safe access point, by pouring petrol in through that door and setting fire to it. A smoke alarm awoke the occupants and the fire was put out. The friend and her children were treated for the effects of smoke inhalation and there was limited damage to the porch area at the front door. The offender was arrested at the scene and provided a breathalyser sample of 210ug alcohol in 100ml of breath.   He denied the offence in interview.
6.	The facts in more detail are that the offender had a relationship with a woman called Michelle Hattersley lasting some 12 years but which ended three-and-a-half years before the offence.  The reason given by Michelle Hattersley for the break-up was the offender's possessive nature.  They had three sons.  Since the separation Miss Hattersley had become best friends with the victim, Tracey Crawford, who had three daughters aged six, nine and 11.  By the time of the offence the offender had been evicted from his flat and was sleeping in his car.  He seemed destitute and in desperate circumstances.
7.	The offender pursued Miss Hattersley and found it impossible to believe that their liaison was indeed finally finished.  He would attend at her home and disturb her, often after he had been drinking.  He made threats to kill her and any new boyfriend she had.  He formed the view that Miss Crawford was deliberately preventing the relationship from reforming and that she was introducing Michelle Hattersley to other men.  This had been a subject of discussion between the offender and Miss Hattersley on many occasions.
8.	On the day of the incident, 31st July 2005, the offender spoke to his ex-girlfriend in person and twice on the telephone.  He told her that he hated Tracey Crawford.  At about 7.40 pm he went to her house and was in the usual belligerent mood.  They argued.  At 9.00 pm Miss Crawford visited Michelle Hattersley and the two women talked until about 11.30 pm when Miss Crawford left and returned home with her children.  They immediately went to bed.
9.	In the meantime the offender had been drinking at his brother's house nearby.  He was drinking cider and during the evening looked out of the window in the direction of Miss Crawford's home and said: "She won't be laughing this weekend."
10.	At about 12.40 am the offender's brother saw him take a petrol can and a magazine out of the boot of his car and then walk in the direction of Miss Crawford's flat which is above a social club.  Access to the flat is via an external staircase.  At the front door there is a porch near which a gas meter is housed.
11.	The offender poured petrol onto the doormat inside the flat.  He removed the letter box flap and was able to set light to the petrol using matches.  Miss Crawford was woken by the smoke alarm and used water to extinguish the flames, assisted by her 11-year-old daughter.  The children had to leave the flat by running through the smoke to escape.  The fire brigade was called at 1.04 am.
12.	The family was treated with oxygen for the effects of smoke inhalation, although no other injury was caused.  There was a small amount of damage to the door and area around it and the carpet in the hallway.  There was light smoke damage to the rooms of the flat.
13.	After entering his guilty plea the offender wrote a letter to the sentencing judge in which he expressed his regret, stated that the offence was out of character and set out his priorities when released as being to get a place to live and to see his children.  He also apologised to the judge and to Tracey Crawford and her family.
14.	The offender has old burglary and drink driving convictions and in September 2004 he was convicted of an offence of battery against Miss Hattersley.  He had punched her in the face several times during a heated argument.  At North East Derbyshire and Dales Magistrates Court he was sentenced to a community punishment order of 100 hours which was eventually breached and varied to a community rehabilitation order for 12 months on 21st February 2005.  The offender was by then also the subject of a community rehabilitation order made by Sheffield Magistrates Court on 7th January 2005 for an offence of driving whilst disqualified and using an uninsured vehicle.  The offender also has a caution for two matters of common assault on 20th November 2001, both of which were also assaults against Miss Hattersley.
15.	A pre-sentence report was prepared and is dated 28th February 2006.  The author of the report makes the following central points:  
1.  The offender was unable to give an account of the offence which he blamed on alcohol.  
2.  His attitude to Miss Hattersley was still possessive and he persisted in minimising the history of violence in their relationship.  
3.  He had a serious alcohol problem at the time of the offence and although he was dry in custody he had no fixed plans how to remain abstinent on release.  
4. The offender was assessed as posing a medium risk of reoffending but of posing a high risk of causing serious harm to known adults, namely his ex-girlfriend and any adult she became close to.  
5. There was a passage in a prosecution witness statement in which it was said that the offender had put petrol through his sister's letterbox six months before this offence although the matter had not been reported to the police at that time. 
16.	Two psychiatric reports were prepared by Dr Mendelson dated 23rd February 2006 and 27th March 2006.  During the interview for the first report the offender denied having any previous convictions.  Dr Mendelson was of the view that by the time of this offence the offender had developed a full alcohol dependency.  There was no history of physical or mental ill health.  The offender said that it was in drunken desperation and, on the failure of his attempts to win back Michelle Hattersley's affections, he impulsively set fire to Miss Crawford's front door.  He believed the fire would be quickly and easily detected but Miss Crawford would be frightened enough to leave the town and hence her influence be removed from Michelle Hattersley.  The of tender told Dr Mendelson that he was now reconciled to the end of his relationship and was looking forward to meeting new women through work.  The conclusion of the report was a hope that the court might be able to be lenient towards the offender given the lengthy time he had spent on remand and consider a probation disposal: "I would consider the risks of him returning to the community at this stage to be acceptably small.  There was no indication that the harbours any inclinations towards further fire setting and there appears to be no residual resentment or hostility.  Moreover he does seem to have been genuinely greatly shocked by his alarmingly irresponsible behaviour."
17.	In the second report Dr Mendelson recognised that the offender still harboured resentment against his ex-girlfriend but he had remained stable in prison and intended to get involved with abstinence programmes when released from custody.  The recommendation was for a combination order to so that the offender could be properly supervised in the community.  There was still a risk that if fuelled by alcohol his resentments could result in further serious offending but such a risk would remain however long the sentence and only abate once the offender was settled in the community and perhaps with a new partner himself.
18.	Subsequently a psychological assessment was carried out on the offender and a consultant psychologist Rebecca Lawday provided a report for the court dated 25th June 2006.  The central findings were that the offender still had ambivalent feelings towards Michelle Hattersley but that going to prison had been a wake up call for him and he now recognised that she was not interested in him. He had let his financial situation get out of hand by trying to win back Michelle through the purchase of presents for the children and giving her a car.  He had been evicted and felt considerable social stigma and shame from having become almost destitute.  The alleged earlier incident with petrol was denied.  He had now begun to address his alcohol dependency with regular sessions in prison and the expert formed the view that the offender was expressing genuine remorse for his acts.
19.	When addressing the issue of risk the report is less emphatic than the author of the pre-sentence report. 
20.	The following aggravating features appear to be present:  A) the offence was premeditated; 
B) the victims included three children who the offender knew were asleep in bed when he set light to the only means of escape from their first floor flat; 
C) the offender was motivated by a hatred of his ex-girlfriend's friend; 
D) the offender did nothing to raise the alarm; 
E) the offender's antecedents reveal a history of domestic related violence; 
F) the offender's response to punishment and rehabilitation in the past has been poor.
21.	The following mitigating features appear to be present:  A) guilty plea; 
B) no intent to endanger life; 
C) remorse; and. 
D) no moderate or serious injury caused and only minor damage to property. 
22.	In so far as the reference in the pre-sentence report to an allegation that the offender had committed this offence on another occasion, we do not need to consider whether that was a factor which the sentencing judge was entitled to take into account given the concession that is being made by Mr Shelley.  
23.	Mr Shelley makes his concession because having had a number of passages drawn to his attention in the course of proceedings in the court below, he accepts that the judge had reached the conclusion that not only was this a serious offence but in the opinion of the judge there was a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.  As Mr Shelley concedes, once the learned judge has reached that conclusion then he had no alternative under section 225 other than to impose either a life sentence or a sentence of imprisonment for public protection.  It is the latter which the Attorney General rightly submits is the appropriate sentence in this case.  
24.	The result therefore of this reference is that we substitute for the sentence of four years' imprisonment a sentence of imprisonment for public protection.  The specified minimum term will be two years, minus the 330 days which he has spent on remand.