No: 200704532/A9 
Neutral Citation Number: [2007] EWCA Crim 3003
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 16th November 2007
 
B e f o r e:

LORD JUSTICE GAGE

MRS JUSTICE COX DBE 
 
DAME HEATHER STEEL DBE 
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R E G I N A 

v 

JAMIE SCOTT 
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Mr M Cheeseman (Solicitor Advocate) appeared on behalf of the Appellant 
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J U D G M E N T 

1.	DAME HEATHER STEEL:  On 26th June 2007 in the Crown Court at Kingston upon Thames the appellant in this case, Jamie Scott, who was 18 years of age, pleaded guilty to two offences.  First was an offence of burglary, the second was an offence of arson being reckless as to whether life was endangered.  He asked the court to take ten other offences of burglary into consideration.  On 24th July 2007 he was sentenced to a period of detention in a young offender institution for public protection.  The period to be served to be 3 years less 97 days served on remand as specified under section 82A of the Powers of the Criminal Courts (Sentencing) Act 2000.  For the offence of burglary, taking into account 10 other offences, a 3 year sentence concurrent was ordered to be served in a young offender institution.  The appellant appeals his sentence by leave of the Single Judge.  
2.	The brief facts of the offence are these.  A house that the appellant burgled was a two bedroom terraced house.  The occupants lived in the upstairs front bedroom and they used the back bedroom as an office and wardrobe.  At 8.40 on the morning of 12th April 2007 they left the house locked and secured.  At around 12.30 pm the fire brigade were called.  A fire alarm had gone off and the information the fire brigade had received was that people were trapped in the house and that it was on fire.  In fact nobody was in the house but there were children who were at home next door.
3.	The fire was put out and it was established that it had been started deliberately in the back bedroom.  The appellant had gained entry to the premises by smashing a large ground floor window and stolen a quantity of electrical goods and jewellery.  Paper work and clothing had been stacked on top of the bed in the rear bedroom and been set on fire, either with matches or a naked flame.  The appellant's fingerprints were found at the point of entry and he was arrested on 17th April.  He declined to comment in interview.
4.	The damage to the house by the fire was estimated to cost between £30,000 and £40,000 to repair.  After he had been charged the appellant offered to assist the police, and he detailed ten other burglaries that he had carried out.
5.	The antecedent record of the appellant discloses a very large number of previous convictions and prior to sentence the judge had the benefit of a pre‑sentence report, dated 23rd July 2007, in which the writer of that report indicated that there was a high risk of re‑offending.  The appellant himself had written a letter to the judge which he took into account.
6.	In sentencing, the judge indicated that the most important mitigating factors in this case were the age of the appellant and his timely pleas.  The judge referred to his formidable criminal record.  The judge went on to say that burglaries of dwelling‑houses were rightly considered to be serious but the offence of arson was even more serious.  Having broken into the property the appellant decided that as he was not wearing gloves he would set fire to the bedroom in the hope of causing damage so there would be no forensic evidence to identify him as the perpetrator.  Fortunately the house was not occupied, but it was a terraced house and there were children next door.
7.	Mr Cheeseman, who then appeared on his behalf, maintained that the pre‑sentence report did not do him justice, but the judge went on to say that the probation report made sorry reading.  The offence analysis spoke for itself, and the appellant had not displayed an understanding of the consequence of the behaviour or the fact that he had endangered life. It is appreciated he was remorseful.
8.	The judge then went on to consider the sentencing options in this case and said: 
"... the arson, means that this court is obliged to consider the terms of the 2003 Act and impose a sentence for public protection.  I have come to the same conclusion."  
He detailed the three matters which by law he is required to do, the circumstances of the offence, the information that he had about the offender and his previous pattern of offending referring to the appalling catalogue of crimes and came to the conclusion that he was obliged to pass a sentence for public protection.  He did not consider a life sentence to be justified in his case.  He specified that the minimum period to be served in custody should be one of 6 years' detention in a young offender institution, had there been a notional determinate sentence, and reached the conclusion that the period to be served was 3 years less the amount already served.
9.	The grounds of the appeal which have been submitted by Mr Cheeseman today are these.  The sentence was manifestly excessive, the 6 year notional determinate sentence failed to indicate the amount of credit for the pleas and the appellant's age and insufficient credit was given to the appellant for those matters.
10.	The court considering this appeal now has two further documents to consider.  First of all, we have a letter which is dated 11th November 2007 from the appellant himself.  We also have a report from the offender supervisor at the young offender institution where the appellant is serving his sentence about the progress that the appellant is making thus far.  This is a very impressive document.  The appellant has already shown, during a previous sentence, that he has the ability to control excessive drinking.  According to his letter, whilst he has been in custody he has detoxed himself from a cocaine habit and has successfully overcome his addiction.  In addition to that it appears from the report of the supervisor that he is making very impressive progress on a number of courses which he has attended and we are impressed by that document.
11.	In relation to the sentence that was passed by the learned judge on 24th July, we have to consider whether it was appropriate, in all the circumstances, for the judge to pass a sentence of detention for public protection.  The appellant had committed a specified violent offence within the terms of the 2003 Act.  Although the appellant had a long criminal record this is not a case to which the assumption applies.  The judge therefore had to go on to consider the question of risk and whether this appellant created a significant risk to members of the public of serious harm by the commission of further specified offences, so that the judge must impose a sentence of detention for public protection.
12.	The judge took into account all the relevant matters under section 229, but in relation to the evaluation of the risk, we conclude that the judge erred in his finding that this was a case where a sentence of detention for public protection must be imposed.  It is further the main thrust of the appellant's argument that the notional sentence of 6 years in this case was too high.  Mr Cheeseman has referred us this morning the authority of R v Xhellollari [2007] EWCA Crim 2052. We have had a brief opportunity to look at that case.  We conclude in the present case that the notional determinate sentence was too high and that the credit for the pleas and age of this appellant was insufficient.  The offence committed of arson was a serious offence where a substantial amount of damage was caused to the home of the occupants and which also created a substantial risk to the people in adjoining properties.  Having said that the notional 6 year sentence was too high and that a sentence for detention for public protection was not appropriate to this case, what we propose do is to quash the sentence of detention in a young offender institution for public protection.  For that sentence we substitute a determinate sentence of 5 years in a young offender institution from which the 97 days will be subtracted.  Concurrent to that the sentence of 3 years which was passed by the learned judge will remain, in respect of the burglary offence, taking into account ten other offences of burglary so that the total sentence now is 5 years' detention in a young offender institution.  To the extent that we have indicated the appeal is allowed. The sentence of detention for the protection of the public is quashed and a determinate sentence is substituted.