No: 200900917 A1 
Neutral Citation Number: [2009] EWCA Crim 1091
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 15th May 2009

B e f o r e:

LADY JUSTICE HALLETT DBE 

MR JUSTICE DAVIS 
 
MRS JUSTICE SLADE DBE 
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R E G I N A 

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Mr C Hotten QC appeared on behalf of the Appellant
Miss K Iliffe appeared on behalf of the Crown
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J U D G M E N T
1.	LADY JUSTICE HALLETT:  This was a an extraordinarily difficult sentencing exercise.  In July 2007 the appellant was just over 13 years of age, and his brother 17 years of age.  In the early evening of 3rd July, together with another youth called Hubble, they went to a derelict factory in Hanley.  A number of drug addicts and rough sleepers had made the factory their home.  A young couple, Mr Asher and Miss Beech, both aged 26, had designated one of the rooms in the factory as their bedroom.  The boys knew that several people lived in the factory.  In fact, they spoke to Miss Beech the very day of her death, and she was kind to them.  Other occupants were not so welcoming. One told them to leave and or to stop making a noise.  
2.	The boys decided to set a fire within a caged area on the ground floor of the factory.  Hubble, who was called as a prosecution witness, claimed that Shawn Winwood and the appellant Simon Pass piled some chairs into a pyre.  Shawn then found some flammable oil and poured it on a chair.  Simon Pass found some paint and dropped that over the chairs.  Shawn then lit the pyre.  A fire quickly took hold with flames reaching the roof.  Mr Asher and Miss Beech's room was overhead. 
3.	The boys were not satisfied.  They moved to a garage or portacabin where another pyre was built.  This was despite the boys noticed gas cylinders which might explode.  As Shawn and Simon constructed their pyre of furniture, the appellant told Hubble to get off a chair upon which he was sitting saying it was going into the fire.  Hubble protested that the brothers could be “done for murder”, yet they went ahead. The pyre was lit.  The fire in the portacabin soon took hold.
4.	Shortly afterwards, the fire brigade attended.  The portacabin was gutted.  The fire brigade did their best to put out both fires and left the scene believing they had extinguished the fire in the caged area and the fire in the portacabin.  Thereafter, a number of the homeless returned to the factory to spend the night there.  They included Mr Asher and Miss Beech.
5.	Unfortunately, unbeknown to anyone, the fire was still smouldering in the roof space above the caged area.  The fire finally took hold shortly after midnight.  The fire brigade was not alerted until 1 o'clock in the morning.  By the time they arrived, the building was ablaze.  Fire officers risked their own lives trying to save the occupants, but, despite their best efforts, Mr Asher and Miss Beech died in the fire.  Members of the Asher and Beech families have written moving accounts of their grief and the nightmares they have endured in which they imagine the way in which their loved ones died.
6.	Two lives were lost and many lives affected by the idiotic and incredibly reckless behaviour of two young men.
7.	Shortly after the incident, they were heard to boast about what they had done.  When interviewed by the police, the appellant accepted that he and his brother had built a pyre.  He agreed he handed a cone and some paint to his brother, but he denied putting the paint on the pyre and he denied setting it alight.  He attributed responsibility for setting the fires to his brother.
8.	At trial at Stafford Crown Court, both young men contested their guilt.  Again, the appellant blamed his brother for setting the fires.  On 6th November 2008 at the Stafford Crown Court they were both convicted of four offences: two offences of arson being reckless as to whether life was endangered, and two offences of manslaughter.
9.	Their cases were adjourned for reports.  Many reports were prepared upon them.  On 23rd January 2009 at the Birmingham Crown Court, in very carefully crafted sentencing remarks, the trial judge Rafferty J sentenced them as follows: on the two counts of manslaughter, 6 years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000; on one count of arson being reckless whether life was endangered, 2 years detention; on the second count of arson being reckless, 3 years' detention.  All sentences were ordered to run concurrently.  The appellant appeals by leave of the single judge.
10.	The appellant's date of birth was 29th April 1994.  He was of previous good character.  His brother, four years older, had some relatively minor previous convictions for offences of dishonesty and being drunk and disorderly.
11.	The reports upon both boys make desperately sad reading.  They caused the trial judge to express the view that their “feckless parents” should have been in the dock beside their sons.  They showed little interest in their children. The father of the boys never bothered to attend the trial, and the mother attended only sporadically.  In the build up to these offences the boys had been left to fend for themselves living the life of adults.  The appellant had not attended school since he was 10.  He was in a sexual relationship with his 14‑year old girlfriend.
12.	Both Shawn Winwood and the appellant had special needs had suffered the same appalling childhood, marked by frequent moods, bullying and violence.  Shawn has a speech impediment as a result.  When Shawn Winwood was first remanded in custody he attempted suicide, and has expressed considerable remorse for the victims of his actions.
13.	We shall focus on the appellant. A psychological report described him as of exceptionally low intelligence, at a similar level to his brother.  His level of cognitive functioning was assessed as 7 years below his chronological age.  He found concentrating for long periods very challenging.  He had difficulty in reading and writing and had a reading age of well below his chronological age.
14.	The author of a Pre‑Sentence Report recognised the inevitability of a custodial sentence and put forward a number of options to the sentencing judge, including a detention and training order.  At the time the report was prepared there was said to be a high risk of the appellant's further offending.  The appellant still sought to minimise his involvement in the offences.  He was deemed to be an extremely reckless young man with little or no consequential thinking.
15.	A report prepared for the purposes of this hearing confirms that he is still a very disturbed young man.  When first remanded in custody, he had to be restrained physically on a number of occasions.  He cut and scratched his arms and hands with pieces of plastic.  He made ligatures which he tied around his wrists.  He was seen making a crude noose which he put under his bed.  He was involved in numerous aggressive incidents, summarised in the report as “assaults on staff, attempted assaults on staff, abusive behaviour to staff and other young people, sexualised and racist abuse on people, possession of weapons, and damage to property”. These were coupled with a failure to comply with the rules of the establishment in which he was remanded.  The author of the report described his making extreme threats of violence upon people around him.  
16.	However, as time has gone by, and particularly since sentence, these incidents have decreased significantly.  The appellant is described as a young man who, albeit aggressive on occasions, can also be pleasant and polite.  He is said to be a genuinely funny young man and enjoys making people laugh.  He is the first to offer people a helping hand and volunteers for most tasks.  Staff members at the institution where he is presently detained say that they enjoy his company.  On the education front he has made exceptional progress; progress of a kind which makes gratifying reading.  Those responsible for his care are to be congratulated for nurturing his commitment to attend educational classes. He is to be commended for the excellent progress he has made.  The way he is developing only serves to highlight the difference that can be made when someone pays the appellant attention and provides him with structure and discipline.  It highlights the extent of the neglect of his parents, for which they have yet, it seems, to be held responsible.
17.	In just a few short weeks the appellant has improved a year in his literary scores.  He has been awarded 39 AQA awards in education, as well as a Bronze Arts Award, which we are told are the equivalent of two GCSEs.  This, it should be remembered from a boy who dropped out of education at the age of 10.  It is said that he will have the opportunity to gain further qualifications during his placement, including a Silver Arts Award which would be the equivalent of five GCSEs. This is partly dependent on his remaining at Red Bank, where he is currently detained, to complete the course.  He has also achieved “graduate status” as it is called, the highest status possible on an earnings and incentives scheme.
18.	We are told that his present release date is November 2011.  Red Bank wish to keep him until his sentence is completed.  If his sentence is reduced, they would have a good argument for his remaining with them.  If his sentence remains as it is, there is the possibility that he may have to move around his 16th birthday.  Miss Forber, who prepared the very positive report upon him, believes it would be detrimental if he had to be transferred to a young offender institution.  There is in him an impulsive and violent streak which might resurface in a young offender institution.  However, it is not yet clear what will happen to him when he reaches the age of 16.
19.	Mr Hotten QC, in his extremely helpful and sensible submissions, wished to emphasise a number of mitigating factors.  The first, and most obvious, is the extreme youth of the appellant.  The second was that he was not “the prime mover” behind the two fires.  When pressed on why he made this assertion, Mr Hotten explained that the older brother had set a previous fire which had gone out, and this appellant had joined in with his brother's enterprise.  However, Mr Hotten conceded that there could be no complaint about the jury's convicting the appellant of playing his full part in a joint enterprise to set the fires in which two people died.
20.	Mr Hotten also sought to emphasise as his third factor, that the appellant’s acts did not lead directly to the deaths of Miss Beech and Mr Asher, but again he properly conceded that the jury had found there was an unbroken chain of causation.  He reminded the court the fires were lit in the daytime in derelict commercial premises using materials that were readily available.  He wished to distinguish the setting of these fires from fires which are set at night in domestic premises, where it is known people are likely to be asleep, and using, for example, petrol taken to the property with the intention of committing arson.  
21.	He properly emphasised as his fifth factor the very low intelligence of the appellant.  The appellant is said to have an IQ of 70, the same level of IQ as his brother.  Mr Hotten also described to us the desperately poor parenting that both boys had experienced.  He described the appellant as in a very real sense a victim himself.  He is, on any view, emotionally deprived.
22.	When he drafted his grounds of appeal, Mr Hotten had intended to argue that there that a detention and training order would be the most appropriate custodial environment for him, because he would not flourish in any other secure environment.  However, the ground was taken from underneath his feet by the progress that the appellant has made at Red Bank.  He therefore very properly focussed his submissions on the question of how long this appellant should serve for his part in these offences.  He argued that 6 years is manifestly excessive, given the totality of the mitigating factors; in particular his age, his level of functioning and his degree of criminal responsibility.  He properly reminded the court that a sentencing judge is not entitled to impose an excessive sentence, albeit with the laudable object of providing the appellant with what Rafferty J described as "strong structured discipline".  
23.	For those reasons, Mr Hotten argued the two grounds of appeal upon which he was given leave.  First, that the judge erred in making no distinction between the appellant and his brother given the differences in their ages and respective roles, and second, the sentence was not commensurate with the appellant's criminality at the age of 13.
24.	We have given this appeal very careful consideration, but, we disagree.  First, in our view, there was no objectionable disparity in the sentences passed upon the appellant and his brother.  The trial judge stated in clear terms why she was passing the same sentence on each and why she had decided to give Shawn the benefit of the appellant's youth.  It is not that the appellant received a sentence longer than he would otherwise have done, it is that his brother Shawn has received a shorter sentence than he would otherwise have done, had he appeared in the dock alone.  Her decision to treat the boys equally was a matter well within her discretion.  She had presided over the trial.  She knew a considerable amount about both young men.  She was in a far better position than members of this court to assess the brothers, their relationship with each other, their level of functioning and their culpability.  She was no doubt acutely conscious of their respective ages, but she was even more conscious of their background and problems.  Those problems were such that the difference in their chronological ages was far less important than would otherwise be the case.  These were two troubled young brothers from a chaotic background.  A 17‑year old normally has the benefit of four years maturity on his 13‑year old younger brother, but here, in terms of social and intellectual functioning, the boys were not so very different. 
25.	As for their roles, the judge was all too aware the part each played.  Shawn had at least been prepared to accept responsibility for lighting the fires and express concern for the victims.  This appellant, sadly, was still minimising his responsibility when seen by the Probation Officer.  Shawn may have been the driving force behind the fires –and he may well have actually lit the fires, but this appellant, Mr Hotten properly conceded, played his full role in lighting a fire in a caged area not far away from where he knew people were living.  Not satisfied with the one blazing fire, the appellant then helped his brother build another where gas cylinders were stored which might explode.  
26.	The boys may have been charged with and convicted of an offence of being reckless as to endangering life, no doubt because of their chronological and mental ages, but this was as close as one can get to an offence of intending to endanger life.  Two people died in the fire and the lives of many more were put at risk.  This was not a case of accidentally starting a fire in which someone was tragically killed.  This is not a case of deliberately setting a fire in premises which the arsonist knew were unoccupied.  These brothers started 2 fires deliberately in premises they knew were occupied, having been told to leave by at least one of the occupants.
27.	The only question which has exercised us, therefore, has been the appropriate length of sentence for offences of this gravity, committed by a young man of this age and background.  We confess, we have not found this an easy question to answer.  Offences of this kind merit a substantial period of detention, whatever the age of the offender.  Given the assessments made by those charged with his care, the appellant was perhaps fortunate that the judge decided not to impose an indeterminate sentence.  But, as Mr Hotten observed, that was the judge's decision.  She had seen the boys before her and she decided that they were not dangerous.  
28.	We do not forget that the appellant was only 13 and an immature 13 with many problems.  But, just as we do not underestimate his problems they must, in our view, be put into perspective.  This was a young man who was living the life of an adult and was well able to look after himself in the outside world. He can, and does, function outside an institution.  What he now needs to do is to learn how to control his temper and his aggressive instincts, and how to relate to other people.  As the trial judge observed he needs structure and discipline and he will need it for a long time to come.  If he does not get the help he needs, his prospects are bleak and the prospects for society are bleak.  We would be doing the appellant and society no favours by reducing what would otherwise be a perfectly proper sentence as an act of mercy, so that he could be released back onto the streets ill‑equipped to deal with life's problems.  
29.	We understand the concerns about moving the appellant to a young offender institution and we urge the authorities to avoid that if at all possible.  However, we also note that judges in the Crown Court, are frequently addressed on the basis that detention in a particular institution will have a devastating effect on a young offender, only for this court to discover, as we have discovered, that the detention in question has proved extremely successful.
30.	Mr Hotten rightly reminded the court that the principal aim of the youth justice system is to prevent offending by children and young people, and that the sentencing court must sentence for the offence or offences and not in an attempt to provide structure and discipline.  We have borne those principles very much in mind, as did Rafferty J.  Given that we are not persuaded that a sentence of 6 years' detention is in any way excessive for offences as serious as this, we believe we can best implement the aim of the youth justice system by allowing the sentence to stand.  The appellant will still only be 16 years of age when released, if he continues to make the progress that he has done.  He will have his whole life ahead of him, something his actions denied Miss Beech and Mr Asher. In the intervening 3 years he will have had the benefit of intensive care and supervision and teaching, something he desperately needs.  
31.	For all those reasons, this appeal, properly put before us and eloquently argued on his behalf, must be dismissed.  We conclude with a repetition of our plea to the authorities to keep the appellant at Red Bank if it is at all possible.