No: 200604632 A4 
Neutral Citation Number: [2006] EWCA Crim 3028
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 15th November 2006
 
B E F O R E:

LORD JUSTICE GAGE 

MR JUSTICE JACK 

HIS HONOUR JUDGE WARWICK MCKINNON
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) 

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

ATTORNEY-GENERAL's REFERENCE NO 94 OF 2006    
 
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Computer Aided Transcript of the Stenograph Notes of  
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MR J REES appeared on behalf of the ATTORNEY GENERAL
MR R H ENGLISH appeared on behalf of the OFFENDER
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J U D G M E N T 
1.	LORD JUSTICE GAGE:  This is a reference by the Attorney General pursuant to section 36 of the Criminal Justice Act 1988.  In this reference the Attorney General refers to this court a sentence which he regards as unduly lenient.  
2.	The offender is Peter Dominic Bell.  He is 24 years of age.  On 7th June 2006, at the Crown Court at Derby, 12 days before trial, he pleaded guilty to the following offences: count 1, arson being reckless as to whether life is endangered, and count 2, arson with intent to endanger life.  On 11th August 2006, after the preparation of a pre-sentence report and a psychiatric report, the offender was sentenced to six years' imprisonment on count 1 and nine years' imprisonment concurrent on count 2.  These sentences were not ordered to run consecutively to a sentence of imprisonment which the offender was already serving, namely a sentence of four and-a-half years for an offence of attempted robbery. 
3.	The facts are as follows.  So far as count 1 is concerned, the offence occurred on 18th September 2003 in the following circumstances.  In 2002, he became a member of the Revival Church in High Street, New Mills.  At about half past nine in the evening of 18th September 2003, the offender and other members of the church were attending a social event in the main hall on the ground floor of the church.  Some members were playing football and the offender was talking to a former girlfriend.  At some point the offender left the group and walked down to the basement where the lavatories were situated.  
4.	At about quarter to ten in the evening, shortly after his return from the basement area, the fire alarms sounded and the offender opened the doors to the basement at the rear of the church as if to investigate.  When the doors were opened, smoke was seen coming up the stairs and the offender alerted the other members of the church to the fire.  The offender then grabbed a bowl of water and Steven Hardy, another church member, picked up a fire extinguisher. Both headed for the seat of the fire, which was in the Sunday school room in the basement.  That room is directly beneath the main hall.  As the offender was about to throw water over the fire, Mr Hardy used the extinguisher to put out the flames.  Mr Hardy noted that the offender seemed annoyed at this, as if he wanted recognition for putting out the fire.  
5.	It was discovered that the fire had been started by someone setting fire to pieces of paper on a metal filing cabinet. The fire had spread to some plastic hoops that were nearby and the molten plastic had dripped on the floor, igniting the carpet.  On his way to extinguish the fire, Mr Hardy had noticed that the basement fire doors were open.  These had been closed earlier in the evening and there was no reason for them to have been subsequently opened.  The fire damage to the walls, cabinet and carpet cost about £530 to repair.  
6.	Shortly after the fire, the Church Minister, Peter Bird, and Christopher Bradley, one of the church elders, spoke to the offender.  They were aware that he had a previous conviction for arson and that there had been an incident in August 2003 at a religious festival in Shepton Mallet when the offender purported to have put out a fire on a tent in which people were sleeping.  They asked him whether he had started the fire.  Initially, he denied having done so. However, during a further meeting in January 2004, the offender admitted that he had started the fire in the basement.  It was decided at that stage to offer the offender prayers and support and not to report the matter to the police. 
7.	The facts of count 2 are as follows.  In November 2003, the offender moved into a flat at 23A High Street, New Mills.  The flat was on the ground floor of a converted end-of-terrace property.  The flat on the first floor was occupied by Ms Kathleen Weston, who was a member of the same church as the offender.  By the time of the offence, she had lived at the address for about 14 years.  The only entrance to Ms Weston's flat is the original front door of the house.  The entrance to the offender's flat is at the gabled end of the terrace.  
8.	In the early hours of 3rd March 2004, Ms Weston was asleep in her bedroom with her boyfriend, Nigel Lloyd.  At about 2.45am she woke up on hearing a noise made by her letter box.  She thought she could smell smoke and went to investigate.  The upstairs hallway was full of thick black smoke and she woke Mr Lloyd.  Ms Weston was panic stricken.  Mr Lloyd ran downstairs.  He saw that flames were at the back of the front door coming from some burning newspapers and a burning blanket, both of which had been pushed through the letterbox.  Mr Lloyd ran to the kitchen to get a bowl of water, which he used to put out the newspapers.  The blanket remained alight, so he picked it up and threw it out of the front door.  As he did so, it flared up and continued to burn on the pavement.  In putting out the fire, Mr Lloyd suffered slight burns to his hands.  
9.	Within a minute of the fire being discovered, the offender walked around the corner of the building from the direction of his front door.  He was fully dressed and appeared perfectly calm.  He asked Ms Weston what was happening.  When the offender looked into the premises he said, "Oh no! I've got a previous conviction for arson".  Ms Weston went back into her flat with her boyfriend.  The offender joined them.  As they waited for the emergency services to arrive, he offered them support.  When the police arrived they discovered that a wine decanter stopper had been jammed in the letterbox of the front door to enable the newspapers and blankets to be pushed through.  That was subsequently important in determining that the offender was the one who had set the fire.  In due course, when the offender was sentenced for this matter, the judge sentenced him on the basis that he was aware that the front door, which was the seat of the fire, was the only exit from Ms Weston's premises.  
10.	The fire had a significant psychological impact upon Ms Weston.  She had CCTV cameras subsequently fitted in her flat and the flap to the letterbox screwed down.  Her self-esteem was badly affected and she described herself as a nervous wreck.  The fire caused about £1,400 worth of damage, which was not covered by insurance.
11.	Upon hearing the news of the fire at Ms Weston's flat, Peter Bird, the Church Minister, contacted the police and told them that the offender had admitted responsibility for the arson at the church.  On 8th March 2004, the offender made a telephone call to a police officer at the local police station.  In the course of the telephone call, he admitted having caused the fire at the church.  On 10th March 2004, he attended the police station and agreed to make a voluntary statement in which he denied committing arson at Ms Weston's flat.  On 19th March 2004, the offender was arrested on suspicion of having committed both arson offences.  He was interviewed under caution and denied responsibility for either fire.  In April 2004, he admitted to a friend that he had caused the fire at Ms Weston's premises.  He said that he remembered being in a trance and that he could not help himself.  
12.	On 31st August 2005, he was further arrested on suspicion of arson with intent to endanger life.  By that time the police were in possession of a statement from the previous occupant of the offender's flat, Daniel Sheehan, who said that he had left the wine decanter stopper and blanket which had been used in the arson at Ms Weston's premises at the flat when he had moved out.  When the offender was interviewed on this occasion, he continued to deny causing the fires.  He was charged with both offences later on that day.  At that point, he was serving a sentence of 54 months' imprisonment for an offence of attempted robbery with a knife which had been imposed on 20th August 2004.  That offence had apparently been committed on 21st April 2004, shortly after the offence of arson with intent. 
13.	The pre-sentence report before the judge indicated that the offender had continued to deny the offences up until June 2006, when he was overcome by remorse after he saw members of his church community on his television.
14.	He has a number of previous convictions, including the attempted robbery, to which we have already referred.  They also include one offence of arson being reckless as to whether life was endangered for which he was sentenced to two years' detention in a Young Offender Institution on 25th September 2000.  Very briefly, the facts are as follows.  The offence was committed on 30th May 2000 at a hostel called Whaley Hall where the offender was living.  At about 11.20pm, he entered the chapel and set fire to the altar tablecloth using a cigarette lighter.  He tried to make it look like an accident by knocking over a lit candle.  Twenty-seven elderly guests and ten other residents, including children, were present at the relevant time.  The smoke alarm was activated and the offender and other staff helped to evacuate the premises.
15.	Before the sentencing judge there were pre-sentence reports, to which we will refer, and a psychiatric report by Dr Bashir.  Dr Bashir set out the offender's history.  Amongst other things in the report, it is recorded that, at the age of 12, the offender set fire to some hay that he had piled up outside the front door of a racist neighbour and he was duly cautioned by the police.  About the same time, the offender was regularly violent to a girl who visited his house.  At secondary school, he continued to be disruptive and aggressive.  He was banned from science class for setting fire to the gas coming from a gas tap.  He set light to a bin outside the headmaster's window at the age of 14 and, on another occasion, he had threatened to damage the school with matches.  The author of the report, Dr Bashir, a consultant forensic psychiatrist, recorded that he was satisfied that the criterion of dangerousness under the Criminal Justice Act 2003 were satisfied.
16.	The pre-sentence report, dated 1st August 2006, made the following points.  The author of the report was of the opinion that the offender presented a very high risk of offending and, if given the opportunity, would continue to pose a risk to others through arson whilst in custody.  The offender required detailed work to address the underlying motivation for his offending before he could be considered safe for release and the author of the report said that a life sentence would allow the Parole Board to have scrutiny of the level of risk and work completed with the offender in assessing whether he was suitable for release, and when. 
17.	The Attorney General identifies the following aggravating features that are present.  First, the offender committed two aggravated offences of arson separated by a period of about five and a half months.  Secondly, in respect of the offence of arson with intent to endanger life, the offence involved a degree of planning in that the offender brought flammable material to start the fire and a wine stopper to wedge open the letterbox.  The offender started the fire in the early hours of the morning, knowing that Ms Weston was probably asleep in her bed and for that reason particularly vulnerable.  The appellant set the fire at the front door of the flat knowing it was the only exit available to the occupants.  The offence had a significant psychological impact upon Ms Weston.  Thirdly, the offender has a history of fire setting and a previous conviction for an offence of arson being reckless as to whether life would be endangered, for which he was sentenced to two years' detention in a Young Offender Institution.
18.	The Attorney General identifies the following mitigating factors that would appear to be present.  First, the offender's fire setting behaviour is linked to a personality disorder, which has its roots in the extreme neglect he suffered as a child.  Secondly, neither fire resulted in serious injury.  Thirdly, the offender pleaded guilty to the offences, albeit at a late stage, and, fourthly, the offender expressed remorse for his offending behaviour.  
19.	On behalf of the Attorney General, Mr Rees submits that the sentence was unduly lenient and that the judge ought to have passed a discretionary life sentence.  Alternatively, it is submitted that the facts of these offences and the offender's record demonstrate that he is a danger and that the judge ought to have passed a sentence longer than commensurate with the offence under section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000.   
20.	For the offender, Mr English submits that the totality of the sentence, namely nine years, comes within the bracket for offences of this sort, which he submits is between eight to ten years.  He relies on the following factors: no accelerator was used in either offence; both fires were easily extinguished; no serious damage was caused and no serious injury to any person.  Further, he relies on the fact that in the end the offender pleaded guilty and was remorseful for what he had done.  It is submitted, and we will come to this later in this judgment, that the crimes for which he fell to be sentenced did not come within the first criteria necessary for a discretionary sentence to be passed.  In the circumstances, it is submitted on behalf of this offender that the sentence passed by the judge was not unduly lenient.
21.	In our judgment, it is perfectly clear from the offender's history and a report from the forensic psychiatrist that there is a grave risk that this offender, when at liberty, will continue to commit offences of arson.  The facts of the instant two offences, to which the offender pleaded guilty, demonstrate that there is a real risk that such further offences will endanger lives.  In our judgment, the following passages in Dr Bashir's report are relevant and significant.  The report is dated 18th July 2006.  At paragraph 15.2, Dr Bashir states:
"... there is strong evidence to suggest that Mr Bell is suffering from a personality disorder as defined in ICD10 (The World Health Organisation Classification of Diseases 1993).  Mr Bell showed evidence of emotional flatness, a lack of empathy towards the emotions felt by those around him, a difficulty in recognising and articulating his own emotional state and an episodic difficulty in regulating his violent emotions resulting in periodic self-harm and violence to others.  Mr Bell appears to have difficulty in forming and sustaining healthy relationships with others.  He has a life long difficulty in relating to authority figures and this is evident by his relationship with school, employers and his own adoptive parents.  There is also evidence that Mr Bell has difficulty in terms of his own sexual identity and forming sexual relationships.  The need to attain attention and praise are features of his fire setting behaviour and could be indicators of chronic low self-esteem. Mr Bell appears to crave power and control and this is gratified by the adulation he expects to receive in extinguishing fires he himself causes."  
At paragraph 5.6 the following appears: 
"Mr Bell has a long history of fire-setting from early childhood.  He appears to experience irresistible compulsion associated with anxiety which is only abated by the act, to savour the excitement in doing the act and relish being an active participant in the human aftermath.  On occasion he imagines he is the hero that saved the day, on others he is an avenger of perceived insult, and then he is the comforter to the innocent victim.  The risk of future fire-setting remains very high.  The risk has so far spanned nearly 15 years and I would regard the risk as persisting indefinitely unless Mr Bell can address his personality disorder."
22.	In sentencing the offender, the judge plainly had in mind the possibility of passing a discretionary life sentence.  He said at page 1F of the sentencing observations: 
"The reason you've given for your offending, or the only one I can find in the papers I've read, is that you believe it relieves the stress from which you're suffering at the particular time. Well that explanation and the nature of your previous offending lead me to believe that there's a very high risk of you re-offending in the future.  That's confirmed by the fact that in September of 2000 you were convicted of a similar sort of offence whereby you set fire to religious premises knowing that there were a number of vulnerable people on the scene.  
I've therefore had to consider whether I should impose a life sentence in your case.  Well after some hesitation I have drawn back from that and I'm going to pass a determinate sentence, but it will be of some length because you not only need punishment but you need help and it's hoped that during the currency of the sentence at some stage you'll be transferred to Arnold House."
23.	On behalf of the Attorney General, Mr Rees has referred the court to a number of authorities dealing with the criteria necessary to be satisfied before the court can contemplate a sentence of life imprisonment.  We pause to point out that these offences were committed before the coming into force of chapter 5 of the Criminal Justice Act 2003, dealing with dangerous offenders.  Accordingly, we must, as the judge did, ignore completely the provisions of chapter 5 of that Act.  The classic statement of the criteria for a life sentence to be passed is to be found in R v Hodgson [1968] 52 Cr.App.R 113.  MacKenna J, giving the judgment of the court, said, at page 114: 
"When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence.” 
24.	This statement was endorsed in Attorney General's Reference No.32 of 1996 (Steven Alan Whittaker) [1997] 1 Cr.App.R(S) 261.  Both these two authorities were referred to by Lord Bingham CJ, as he then was, in R v Chapman [2000] 1 Cr.App.R(S)282.  Having referred to these two cases and others, Lord Bingham said, at page 85 letter B: 
"In most of those cases there was no express departure from the criteria laid down in R v Hodgson, and certainly no doubt has to our knowledge ever been cast on the authority of that decision, which was very recently re-affirmed in Attorney General's Reference No 32 of 1996 (R v Whittaker). In Attorney General's Reference No 34 of 1992 (R v Oxford), R v Hodgson was indeed specifically relied on as laying down principles which were described as 'not in dispute'. It is in our judgment plain, as the court has on occasion acknowledged, that there is an interrelationship between the gravity of the offence before the court, the likelihood of further offending, and the gravity of further offending should such occur. The more likely it is that an offender will offend again, and the more grave such offending is likely to be if it does occur, the less emphasis the court may lay on the gravity of the original offence. There is, however, in our judgment no ground for doubting the indispensability of the first condition laid down for imposition of an indeterminate life sentence in R v Hodgson, re-affirmed, as we say, in the more recent Attorney General's Reference No 32 of 1996 (R v Whittaker). It moreover seems to this court to be wrong in principle to water down that condition since a sentence of life imprisonment is now the most severe sentence that the court can impose, and it is not in our judgment one which should ever be imposed unless the circumstances are such as to call for a severe sentence based on the offence which the offender has committed."
25.	As Mr English, on behalf of the offender, pointed out, the facts of that case were not dissimilar to this one, save that in the instant case the judge had to sentence this offender for two offences, not one as in Chapman.  There also in our judgment was a significant difference in that in Chapman the appellant pleaded guilty to an offence of reckless arson and not to arson to endanger life.  In Chapman, Lord Bingham described the problem faced by the judge as "extraordinarily difficult".  The same can be said in this case.  In that case, the court described the one offence as not being of such gravity as to satisfy the criteria laid down in Hodgson, although, as this was not expressly stated by the court, it appears to be on the basis that the offence itself was not of sufficient gravity to merit a life sentence.
26.	We are left in no doubt that the sentence passed by the judge was not only lenient but unduly lenient and we give leave.  If the judge was to have passed a determinate sentence rather than life imprisonment, in our judgment he ought to have exercised his powers under section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000.  It seems to us that he ought to have passed a sentence in total which was longer than the sentence that he actually passed, notwithstanding the late guilty pleas.  But we further are of the opinion that he should have passed a life sentence of imprisonment.  The offender's history in our judgment demonstrates that he is a person of unstable character who is likely to commit further offences in the future.  We also conclude that these offences are likely to be so serious that there is a grave risk that others may be severely injured.  
27.	The aspect of this reference that has caused us the most difficulty is in deciding whether the offences of arson to which the offender pleaded guilty satisfied the requirement of being in themselves grave enough to require a very long sentence.  We can understand the judge's reluctance to pass a life sentence but we conclude that he ought to have done so.  These were, on any view, two very serious offences.  It must not be forgotten that the offender pleaded guilty to count 2, an offence of arson with intent to endanger life.  In our judgment, in all the circumstances, a life sentence was the only appropriate sentence to pass.  
28.	Having so concluded, what we propose to do is to substitute such a sentence on each count in place of the sentence of six years and nine years passed concurrently by the judge.  Taking into account the principle of double jeopardy, we do not increase the period of time which the offender must serve before being eligible for parole.  We base that on the nine years set by the judge.  That will be in the usual way halved to four years, six months before which the applicant will be ineligible for parole.  We now seek the guidance of counsel as to when the sentence should start and whether any time served should count.  
29.	You did say something in your submissions, Mr Rees, about that.  It should, should it not, date from the date of sentence? 
30.	MR REES:  My Lord, yes.  Given that it is now a sentence of life imprisonment, clearly the public are afforded sufficient protection and it ought to be that the time that he has served since the imposition of sentence should count.  So, in my respectful submission, the sentences should date from the sentencing date.  But the time he has spent in remand in respect of these offences, prior to the sentencing date, should not count because he was currently serving a sentence of imprisonment for attempted robbery.
31.	LORD JUSTICE GAGE:  So in other words it will run from the date that he was sentenced in August 2006, this year? 
32.	MR REES:  My Lord, yes, and it will be four and-a-half years not minus any other period.
33.	LORD JUSTICE GAGE:  No. Four and-a-half years not minus any period. Mr English? 
34.	MR ENGLISH:  I have nothing to add, my Lord.
35.	LORD JUSTICE GAGE:  No.  Thank you both very much for your very helpful submissions.