No: 200903116/A5 
Neutral Citation Number: [2009] EWCA Crim 2302

IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 21 October 2009
 
B e f o r e:

LORD JUSTICE HOOPER 

MRS JUSTICE SWIFT DBE 
 
HIS HONOUR JUDGE MORRIS QC 
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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R E G I N A 

v 

ALAN LESLIE BIRKETT 
 
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Miss R Faux appeared on behalf of the Appellant
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J U D G M E N T
1.	MRS JUSTICE SWIFT:  This is an appeal against sentence by leave of the single judge.  
2.	On 6 February 2009, at Preston Crown Court, the appellant, who is 46 years old, pleaded guilty at the earliest opportunity to an offence of arson, being reckless as to whether life was endangered.  On 29 May 2009, he was sentenced by Mr Recorder Farley QC to imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003 (as amended) with a minimum term of two years less 226 days spent on remand.
3.	The appellant, who was an alcoholic, lived in a council flat in Barrow-in-Furness.  The flat was on the ground floor of a two storey block of about 30 flats.  On the evening of 13 October 2008 he was at home with Barry Miller, also an alcoholic, who was homeless and who had been staying with the appellant for some months.  They had been drinking throughout the day, in particular strong cider and strong lager.  They were both drunk.
4.	In the early evening, Miller began to fall asleep.  Meanwhile the appellant had become argumentative.  He tried to set fire to a duvet in the front room with a cigarette lighter.  He said several times, "I want it over and done with."  Miller threw a glass of cider over the duvet and extinguished the flame.  The appellant then moved to a corner of the room where there was a television, ostensibly to put on a DVD.  He set light to the curtains with a second lighter.  Miller tried to drag the curtains down to put out the flames but was unable to do so.  The room began to fill with smoke.  The appellant continued to say, "I want to get it over with."  Miller called 999.  
5.	A neighbour, Mr Donald, had seen the fire.  He also alerted the fire brigade and then went to assist.  The appellant opened the door and claimed that the television had blown up.  Miller was on the sofa.  Mr Donald told them to get out and extinguished the fire by wetting a chair cover and applying it to the flames.  The fire brigade attended and the police arrived shortly afterwards.  Miller made a complaint and the appellant was arrested.  He gave a no comment interview.  
6.	The fire damage was limited to the side of the room near the television.  It did not extend to the flat above which was occupied at the time by an elderly lady.  Miller reported suffering some smoke inhalation together with shock and distress at what had happened.
7.	Since 2002 the appellant has had 28 court appearances for 39 offences, mainly offences of being drunk and disorderly, using disorderly words or behaviour and breaches of Anti‑Social Behaviour Orders.  He has served three short sentences of imprisonment during 2004 and 2005 for breach of Anti‑Social Behaviour Orders and a Bail Act offence.  He has not been convicted of any offence specified for the purpose of the dangerousness provisions of the Criminal Justice Act 2003.  The offence of arson was committed during the currency of an Anti‑Social Behaviour Order.
8.	There was before the court a report dated 12 April 2009 from a consultant forensic psychiatrist, Dr Green, instructed by the defence.  She described how the appellant's life had taken a downturn when his marriage ended in 2002.  He became depressed and alcohol abuse became a severe problem.  He made some attempts to take his own life.  It was at that time that his offending started.  All his offences have been associated with alcohol.  He underwent detoxification and rehabilitation in 2004 but lapsed until 2006 when he had a further period of abstinence before again resuming drinking.  At the time of the offence with which we are concerned he was drinking heavily and was low in mood.
9.	The appellant's recollection of events was hazy but he maintained to Dr Green that the ignition of both the duvet and the curtains had been accidental.  Dr Green elicited no previous history of fire setting or pathological interest in fires.  She suggested that it could be that, while he was drunk, the appellant had started the fire in response to feelings of depression and anger at the life he was leading.  At the time of her examination he was detoxified and talking with some insight about his alcoholic problems.
10.	Dr Green acknowledged that the offence had the potential to place other individuals at risk and expressed the view that the likelihood of the appellant reoffending was directly related to whether or not he started to abuse alcohol once again on release from prison.  She said that he would benefit from alcohol abuse programmes.
11.	The pre‑sentence report described the tension which had developed between the appellant and Miller and the appellant's feeling that he was at breaking point by reason of the continued presence of Miller and his associates at the flat.  He found them intimidating and frightening.  On the day of the offence they had argued about the state of the flat.  
12.	The appellant insisted that the fire had started accidentally.  The author of the report did not accept that account and believed that the appellant had set fire to the property because he felt depressed and angry at his circumstances.  He considered that the appellant had the potential to pose a serious risk of harm to the public through the commission of further offences of this nature and would continue to do so unless he engaged in interventions to address the risk of reoffending and the risk of harm he posed.  He suggested that it was imperative that he was placed in an environment with access to appropriate offending behaviour programmes in a consistent and prolonged manner.  
13.	In an addendum to the pre‑sentence report the author indicated that the appellant did not meet the local criteria for an alcohol treatment requirement and would not be suitable for management of his alcohol problem within the community.
14.	A letter from the appellant explained the circumstances behind the offence.  He said that at the time of the offence he felt intimidated and threatened by Miller but insisted that his lighter had come into contact with the curtain by accident.
15.	In sentencing the appellant, the Recorder noted that he wanted to lead a law-abiding, useful life but, looking at the offence and the appellant in his present state, he presented a significant risk of serious harm to members of the public.  He considered that there had to be a sentence of imprisonment for public protection.  The notional determinate sentence would be four years, making a minimum period to be served of two years, less the 226 days he had already served.
16.	The relevant provisions of section 225 of the 2003 Act provide:
"This section applies where ‑‑
 (1)(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and
 (b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.
... 
3.  In a case not falling within subsection (2) [that deals with sentences of custody for life], the court may impose a sentence of imprisonment for public protection or, in the case of a person aged at least 18 but under 21, a sentence of detention in a young offender institution for public protection if the condition in subsection (3A) or in subsection (3B) is met."  
17.	Subsection (3A) is not applicable to this case.  Subsection (3B) provides: 
"The condition in this subsection is that the notional minimum term is at least two years."
18.	In her written submissions and in her oral submissions before us today, Miss Faux submits that the sentence of imprisonment for public protection was wrong in principle.  The notional determinate sentence of four years after a guilty plea meant that the Recorder's starting point after a trial must have been six years.  She submits that a sentence of six years was manifestly excessive in the circumstances.  She argues that the Recorder should have adopted a lower starting point.  If he had done so, the conditions set out in section 225(3B) would not have been met and it would not have been open to him to impose a sentence of imprisonment for public protection.  
19.	Miss Faux went on to submit that the Recorder should not have assessed the appellant as dangerous.  Finally she argued that if, contrary to her submission, the Recorder's starting point was not manifestly excessive and his finding of dangerousness was justified, an extended sentence would have afforded the public sufficient protection.
20.	The central point in this appeal is whether the Recorder's starting point of six years after a trial was manifestly excessive.  We remind ourselves of the words of the Lord Chief Justice in the case of R v C and others [2008] EWCA Crim 2790.  He said:
"11. ... an order of imprisonment for public protection may not be imposed under condition (3B) unless the offence justifies the specified notional minimum term, even if there is a significant risk of serious harm.  
12.  In such cases, courts will no doubt ensure that longer than appropriate sentences are not imposed in order to avoid the restriction created by condition 3B.  Section 153(2) of the Criminal Justice Act 2003 remains in force, and any custodial sentence must. 
'... be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.'"
21.	The offence in this case was committed at a time when the appellant was drunk and when he was depressed and angry about his predicament.  It was an one‑off offence and could have been viewed as a cry for help.  It did not result in injury to any person and the damage which was done to the property was limited in scope.  There was no suggestion that the appellant had a previous fascination with fire.  The fire was set at a time when another person was present and could have been expected to take action to put it out.  
22.	In those circumstances, we take the view that the Recorder’s starting point of six years after trial was manifestly excessive.  We consider that the appropriate starting point would have been four and a half years after a trial so that the proper sentence, giving credit for the plea, would have been one of three years.  That being the case, the requirements of section 225(3B) were not met and it would not have been open to the court to impose a sentence of imprisonment for public protection or an extended sentence.  We therefore quash the sentence of imprisonment for public protection and substitute a determinate sentence of three years, giving the same discount for the number of days spent on remand before sentence.  To that extent the appeal is allowed.