Neutral Citation Number: [2011] EWCA Crim 1309
Case No: 201101238/A2‑201101239/A2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Date: Tuesday, 19th April 2011
 
B e f o r e:

LORD JUSTICE MOSES 
MR JUSTICE BLAIR 
THE RECORDER OF LEEDS  
(HIS HONOUR JUDGE PETER COLLIER 	  QC) 
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

DANIEL GYI 
JOSHUA CHARLES HART 
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Mr P McCartney (Solicitor‑Advocate) appeared on behalf of the Applicants  
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J U D G M E N T 

1.	THE RECORDER OF LEEDS:  On 12th January 2011 in the Crown Court at Sheffield the two applicants pleaded guilty to the allegation that each of them had damaged property being reckless as to whether life was endeared contrary to section 1(2) of the Criminal Damage Act 1971.  The matter was adjourned for the preparation of pre‑sentence reports and on 25th February 2011 they were each sentenced by His Honour Judge Kelson QC to sentences of 2 years' imprisonment.  The Registrar has referred these applications for leave to appeal against sentence to the Full Court.
2.	Both the applicants are now 21 years of age and were 20 at the time of the offence.  On 25th June 2010 they were students at Sheffield University.  They lived in a student hall of residence at Endcliff Crescent.  The property consisted of several flats extending over four floors.  They shared a flat in the basement of the property.
3.	It was the end of their first year and they were due to move out of the hall for the following academic year.  They had with them a television and also a chair that they had brought into the property and which they were not going to require in the future.
4.	They spent the afternoon and evening of the 25th drinking together and continued drinking into the early hours of the 26th.  At one stage in the early hours of the 26th they took that television to the top floor of the property and from there threw it to the ground to see what would happen.  They then went outside and collected some of the parts of the broken television.  They then when to a kitchen and tried to set the chair alight using cigarette lighters, as they told the probation officer.  When the chair failed to catch fire they took some of the broken parts of the television and put them into the oven which they turned on.  The result was that the television parts became very hot indeed and began to smoke.  At that they turned off the oven and turned on the extractor fan. The smoke continued to issue from the oven, so they then taped plastic bags over the smoke detectors in the kitchen and adjacent hallways and closed the windows with the intention that the alarm should not be raised.  Of great concern is the fact that they were later to admit that as they did not know what to do, they then left the building in order to distance themselves from what had taken place.
5.	A little while later, seeing that smoke was continuing to come from the flat, they decided to return and raise the alarm.  However in the meantime another resident in the block who had seen the smoke had immediately raised the alarm. The fire brigade attended arriving at 3.40 am, by which time the other seven residents of the block had been evacuated.  
6.	The applicants were arrested at the scene.  They made immediate admissions of being responsible for what had taken place.  When interviewed under caution they admitted the offences and expressed their remorse.
7.	In passing sentence the judge referred to the good character of the applicants and the many positive testimonials he had received about them, their palpable remorse, their immediate admissions and their guilty pleas.  He was satisfied that they would not offend again but said that he had a wider duty.  Having thrown the television from the top of the block to see what it would be like and having tried to set fire to the chair, but not having gained sufficient thrill or entertainment from those actions they put the television screen into the oven to see what would happen.  When it started bellowing out toxic smoke, instead of alerting others to the danger, out of self interest and disregard for others, they covered the detectors and then absented themselves having no regard to the danger caused to the seven other people in the block.  Those people's victim impact statements showed the impact of what had happened on the other occupants of the flats.
8.	This was an extremely serious offence for which there were no guideline authorities.  The case of R v Masterson [2010] Cr App R(S) 114 gave some assistance.  With a heavy heart he passed sentences of 2 years' imprisonment.
9.	The grounds of appeal are that firstly the imposition of an immediate custodial sentence was wrong in principle and manifestly excessive.  Secondly, even if an immediate custodial sentence was not wrong or excessive, then 2 years was manifestly excessive.
10.	It is clear from the pre‑sentence report that each of the applicants accepted the likelihood of a custodial sentence acknowledging the seriousness of what he had done.  The reports did not argue that the offence did not cross the custody threshold.  Indeed they could not sensibly have done so.
11.	Mr McCartney acting on behalf of the applicants today as he did before the sentencing judge, accepts that this was a serious offence and that the custody threshold is crossed.  So that then raises the question of the length of the custodial sentence.
12.	There is no smoke without fire.  However it is arguable that this was not a fire and it was for that reason that the prosecution having indicted them for arson, accepted pleas which had been offered at a very early stage, to criminal damage, being reckless as to the endangering of life, rather than requiring a trial on the offence of arson.  On the other hand, we note the smoke is described by the fire officer as noxious and it could have had serious effects had someone else not raised the alarm.
13.	As the sentencing judge observed, there is little help in the way of guidelines.  This court, in relation to offences of arson, and in relation to offences where there has been damage which has immediately put lives at risk has often upheld sentences in the region of 2 to 3 years' imprisonment.
14.	We have had regard to the many factors that were urged upon the judge and are urged upon us again today.  We note that there was no serious damage.  We note that there was no injury other than minor discomfort to one of the occupants of the flat.  We note that the admissions were made immediately at the scene, and those were fleshed out in interviews with the police.
15.	We accept, as the judge did, that the remorse felt by these applicants was palpable.  Their pleas of guilty were tendered at the earliest possible stage.  There being no guidelines as to what the starting point is for an offence like this, it seems to us that after a trial, the sentence would not have been in excess of 18 months and with the full credit for the guilty pleas and their mitigating circumstances, in relation to that personal good character and many positive testimonials, we feel that the sentence would have been no greater than 51 weeks' imprisonment.  
16.	That then raises the question as to whether it is possible for us to suspend the sentence.  We are very conscious of the impact that this conviction, let alone any sentence, will have upon these applicants.  It is uncertain they will ever be able to return to the University of Sheffield or any other institution to resume their studies.  For the moment at any rate it is likely that the careers they had hoped for (in law and medicine) are certainly on hold if not permanently disrupted.  For the rest of their lives they will be dogged by this conviction.  Applications for visas, applications for all sorts of positions will require the convictions to be disclosed.  It may well be that many, many things will be closed to them in the future.
17.	We are very conscious that the drink they had taken was no doubt what caused this all to happen.  The drink disinhibited their behaviour initially and then subsequently encouraged them to seek to avoid detection, rather than to seek the safety of others.  The drinking is an aggravating feature in our judgment, rather than a mitigating feature. Intelligent people like them should realise the risks they run when drinking to excess.   
18.	But balancing all these things out at the end of the day it seems to us that the cost to these young men of their admissions, to what they had done, made so fulsomely at the time will nevertheless continue to dog them throughout the rest of their lives.  Given that they have now spent a significant period in custody, it seems to us that we are able, just, to suspended the operation of the prison sentence.  So the effect will be that in each case we shall grant leave to appeal, we will quash the sentences of 2 years imprisonment.  We will impose in each of their cases a sentence of 51 weeks' imprisonment suspended for a period of 12 months and in each of their cases there will be a requirement of the suspended sentence to do 100 hours unpaid work for the benefit of the community.
19.	LORD JUSTICE MOSES:  Have you instructions to accept this as the appeal although they are not here? 
20.	MR MCCARTNEY:  I have instructions to conduct the appeal in their absence.
21.	MR JUSTICE MOSES:  They were entitled to be here.  What we will order, we allow the application, allow the appeal, if they wish to do better it is fanciful to suppose they will they are entitled to inform the court within 7 days.  They have 7 days to notify the court that they want to try to do better.  Otherwise the appeal is allowed and the order my Lord has made will be made. Thank you very much.