No: 201803839/A2 
Neutral Citation Number: [2018] EWCA Crim 2506 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
  Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 18 October 2018 
 
B e f o r e:

LORD JUSTICE SIMON 

MR JUSTICE JULIAN KNOWLES
 
HIS HONOUR JUDGE WALL QC
(Sitting as a Judge of the CACD) 
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

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R E G I N A 
v 
LEE BATCHELOR 

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Mr W Emlyn Jones appeared on behalf of the Attorney General

Mr A Waller (HCA) appeared on behalf of the Offender

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Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

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J U D G M E N T
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LORD JUSTICE SIMON:  

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1.	On 19 June 2018 the offender, Lee Batchelor, now aged 40, pleaded guilty in the Crown Court at Lewes to a single count of arson being reckless as to whether life would be endangered; and sentencing was adjourned for the preparation of a pre‑sentence and a psychiatric report.  On 21 August he was sentenced by His Honour Judge Gold QC to a term of 2 years' imprisonment, suspended for 2 years, with a 20-day rehabilitation activity requirement and a requirement to perform 200 hours of unpaid work.

2.	The Solicitor General seeks leave to refer that sentence to this court, under section 36 of Criminal Justice Act 1988, as being unduly lenient.  We grant leave.

3.	In May 2018 the offender was living in a block of flats, Longhton House, Bexhill-on-Sea. He was living in one of six flats, (No 80) with his wife and children.  Directly above their flat was Flat 81 where 16‑year‑old, Bleu Marchant, lived with her father.  Ms Marchant and her father had lived in the block for over 10 years and got on well with the other neighbours.  Mr Marchant had known the offender all that time and they got on very well.  However, in the build-up to May 2018 the offender had grown upset by the noise coming from Flat 81, particularly because Ms Marchant frequently had visitors and would play loud music.  The offender had complained about this.

4.	On Friday 11 May 2018 Ms Marchant was at home with some friends. Her father was out for the evening.  At 10.30 pm she went outside to meet another friend who was just arriving and she heard the offender on the phone.  He was speaking loudly.  She heard him say: "I'm going to fucking petrol bomb the flat.  There are three girls in there now". Ms Marchant's friends all left by midnight and she then went to bed.
5.	The following evening, Saturday 12 May, Ms Marchant was again at home in her flat with a group of friends.  They were playing music and dancing and she was later to accept that her music had been quite loud.  At about 9.30 she heard a noise which she thought might have been her mobile phone ringing, she turned the music down and realised the noise was coming from the fire alarm from the communal hallway outside her flat.  She opened the front door and saw that the landing was filled with smoke and that the surface of the front door was on fire.  She quickly returned to the kitchen, and grabbed a bowl of water which she threw over the door extinguishing some of the flames.  There was a great deal of thick smoke coming from the fire by this stage, so she went back inside, closed the door and left the flat with her friends via a rear window, climbing onto the external fires escape.  They banged on the windows of neighbouring flats to seek help.

6.	Once she thought her friends were safe, Ms Marchant recalled that there was a fire extinguisher in the flat, so she returned, found the fire extinguisher and headed towards the front door.  By this time the flat was filling up with smoke.  She found it difficult both to breathe and to see where she was going.  However, she managed to open the door and use the fire extinguisher to put out the fire.  She then opened all the windows to try to get rid of all the smoke, gathered up her cat and some other possessions, and left.

7.	Her father arrived home and helped her.  He had been told by a neighbour outside that his flat was involved but there was no one left inside.  However, he saw his daughter at one of the windows and so hurried inside to help.  She was in shock, and said she had felt that she was going to suffocate. 
8.	The police and fire services attended the scene.  The offender approached a police officer outside the flats and told him he lived in the flat beneath the fire.  He said that he heard the fire alarm and had smelt toxic fumes, and that he and his family fled to safety.  However, the officer had been informed of the offender's threat of the previous night and arrested him.  He smelt of accelerant and a bottle of white spirit was found inside his flat.  As he was being searched he asked: "Have you got any evidence yet then".

9.	The offender's wife was spoken to. She told the police that although she had told him not do it her husband had set the fire using the white spirit that had been found.  She said that they had been disturbed by the noise coming from the flat above while putting their children to bed and he had become very angry as a result.  She also said the problem of serious noise disturbance from the flat upstairs had been ongoing for a significant period and that the offender had "found it more and more difficult to deal with [it] and [has] become extremely stressed about it as he found it difficult to sleep".  She said that both she and her husband had taken steps to tackle the problem without success.  The previous night when the noise from upstairs had been bad the offender had gone up and shouted through the door to ask for the noise to be turned down.  There had been no response.  She also said that on the evening of 12 May, she had initially gone upstairs and knocked on the door of Flat 81 but no one answered and she came back downstairs.  The offender had then said: "I'm going back up there, I am going to fire bomb them out".  She said he was extremely angry and "at the end of his tether". She saw him take a litre bottle of white spirit and go into the hallway.  A few minutes later he returned and telephoned his sister‑in‑law to arrange somewhere to stay. Then he and his family had left via the fire escape.  She told the police that he had called the fire service.
10.	The offender gave "no comment" answers in interview.  On examination of Flat 81, fire investigators noted that the front door was badly burned and charred, with some parts of the door having started to peel. The fire had been deliberately started using a naked flame and accelerant.  There was significant heat and fire damage to the entire height of the door.

11.	In a statement dated 10 June 2018, Bleu Marchant said that as a result of the fire she now felt "a bit frightened" to be at home alone and that her friends no longer visited as often they used to, she assumed because they were also frightened by what happened.  She was aware that the results of the fire could have been much worse and that their lives had been at risk.  In addition to the damage to the front door which had to be replaced at considerable expense and inconvenience, many of her father's and her clothes had to be thrown away as a result of smoke damage.  Although they cleaned the flat and redecorated parts of it, their home still smelt powerfully of smoke.

12.	The offender had no previous convictions.  However, he had two cautions for criminal damage in 2002 and possession of cannabis in 2003.

13.	There was a pre‑sentence report prepared for the sentencing hearing. The offender had been working shifts, which meant that he was having to get up at 3.00 am and leave for work at 4.00 am.  As a result, the disturbances caused by the behaviour upstairs had had a serious impact on him and his family, and provided the context for the commission of the offence.  He had been reluctant to go to the police about the noise as he feared repercussions.  He had tried reasoning with his neighbours without success.  On the night of the incident he said he had "lost his mind as a result of the chronic sleep deprivation". He claimed to have only a hazy recollection of the incident itself but thought his motivation had been only to create smoke, hoping that this would encourage Ms Marchant and her friends to take his complaint seriously.  He claimed to have been surprised when the white spirit caught fire, tried to put the fire out with his foot and, when he was unable to do so, activated the fire alarm before returning to his own flat and leaving with his family.  The author of the report considered the offender's actions to be completely out of character based on his lack of antecedents.  He had expressed deep regret, and his remorse was considered to be genuine.  He said he had felt suicidal since the incident as a result of "the mess he has made".  He was assessed to pose a low risk of re‑offending.

14.	The author of a psychiatric report, Dr Oluwole, found no evidence that the offence was linked to any mental illness.  It was suggested that the offender "likely suffered from adjustment disorder with depressive symptoms or a mild depressive episode triggered by increased stress as a result of shift work pattern and intermittent noise from his neighbour over a two month period".  It was noted that he had seen his general practitioner 2 weeks after the commission of the offence, at which he was prescribed an antidepressant.  Thereafter his mood had been stable, and on 2 July 2018 the offender had informed Dr Oluwole that he was "back to his usual self".

15.	The offender was charged with arson with intent to endanger life, with reckless arson as an alternative.  He indicated in the Magistrates' Court that he would be pleading guilty to the lesser offence.  At his first Crown Court appearance he pleaded guilty to arson being reckless as to whether life was endangered which the prosecution accepted.  No evidence was offered in respect of arson with intent to endanger life.

16.	At the sentencing hearing the judge was briefly referred to a number of sentencing authorities including R v Maitland‑Thomas [2014] 1 Cr App R(S) 22; R v Hartley [2012] EWCA Crim 1722 and R v Smith [2017] EWCA Crim 2045.  However, the prosecution submitted that cases of this type were fact specific and none of the cases cited were especially pertinent.

17.	In passing sentence, the judge set out the facts as we have described them, noting that it was fortunate that the fire was relatively self-contained.  He accepted that the offender had quickly realised that things had got out of hand and had set off the fire alarm.  He observed that, at the age of 39 (as he then was), the offender was a man of essentially good character, living in a small flat with his family, his partner and three young children, who had been subjected to a barrage of noise from the flat above over a period of weeks.  The judge said that he was sure that he realised how dangerous his actions had been. In a block of flats they could have had fatal consequences.  The degree of stress it must have caused to his immediate neighbours was very substantial.  The Judge referred to the conclusion in the psychiatric report that the offender was suffering from either adjustment disorder with depressive symptoms or a mild depressive episode triggered by increased stress as a result of his shift work pattern which often involved having to rise at 3 or 4 o'clock in morning and working long and unsociable hours.  He had not seen his general practitioner until after his arrest.

18.	The judge said that he found it a difficult sentencing exercise.  On the one hand, the public was entitled to expect that those who recklessly set fires should be severely punished for it.  However, having pleaded guilty at the first available opportunity the offender was entitled to a full one‑third discount from the appropriate the sentence.  If the case had been contested at trial, even with his good character, the sentence would have been a term of 3 years. In the light of his guilty plea indicated at the first available opportunity that would be reduced to 2 years.  The judge continued: 

In all the circumstances of this case I am prepared to take an exceptional course, in the light of the various matters I have referred to, and suspend that sentence of imprisonment.  That may or may not be a mistake; but bearing in mind all the circumstances of this case, bearing in mind the stresses as a father of a young family that you were under, receiving excessive noise from a neighbour who was obviously living a life‑style a million miles from your own, bearing in mind you were working hard to try to support your family, I am prepared to view this case as a situation where you simply snapped and behaved in a way that was wholly out of character. It was a massive ‑ massive mistake, to put it at its very lowest, but you have, as I say, a lifetime of good character and hard work to put in the balance when I decide whether or not it is necessary for me, in the public interest, to send you to prison immediately and I have concluded that it is not in the public interest to do so. This is one of of those exceptional cases where I can justifiably suspend the inevitable sentence of imprisonment and I will suspend it for a period of two years.
 
19.	The judge then passed the sentence to which we have referred, making an additional order that he was to pay £500 in compensation to the Housing Association.

20.	For the Solicitor General, Mr Emlyn Jones submits that there were a number of aggravating features.  First, the fire was set against the door of a flat in a block, creating the significant risk of fire spreading to the adjacent properties.  Second, an accelerant was used.  Third, the targeted premises were occupied at the time as the offender well knew. Fourth, it was night time so neighbouring flats were also occupied.  Fifth, there was a degree of planning as the offender had threatened to petrol bomb the address the previous day.  Sixth, the offender went ahead with the offence despite his wife "begging" him not to.  Seventh, the arson was motivated by malice and/or anger.  However, Mr Emlyn Jones also acknowledges that there were mitigating factors. The judge accepted that the offender had activated the firearm alarm.  The offender had suffered persistent disturbance as a result of the anti‑social behaviour of his neighbour.  He was suffering from mild depression and had demonstrated genuine remorse.  He was a man of effective previous good character and had pleaded guilty.  However, he submits, by reference to a number of previous decisions of this court, that the suspended sentence of 2 years was unduly lenient.

21.	For the offender Mr Waller has drawn a number of features of the case to our attention, particularly, to the events leading up to the setting of the fire.  The statement of the offender's wife, Rachel Batchelor, had referred to the loud noise coming from the upstairs flat particularly at weekends.  Both she and the offender had spoken to their Housing Officer about the noise problems.  The offender had found it more and more difficult to deal with the noise in view of his shift work.  He had frequently gone up to Flat 81 to ask them to turn the noise down. Sometimes they did so, but then turned it up again within minutes.  At other times they did not answer the door.  He had gone upstairs on the Friday to tell them to turn the noise down and got no response.  On Saturday she herself had gone upstairs and had no response.

22.	Mr Waller submits that the judge was aware of the circumstances.  It was clear that he had initially in mind a custodial sentence; but he had recognised that this was not someone who had carried out a revenge attack, so much as someone who was at the end of their tether.  The offender had lost the capacity for rational thought due to continual noise and sleep deprivation.  He had expressed deep remorse and pleaded guilty and, in these circumstances the judge, was entitled to take an exceptional course and pass a sentence that was capable of being suspended.  Mr Waller referred us to the case of R v Daniella Smith [2014] EWCA Crim 846.

23.	We have also seen a pre‑appeal report dated 5 October which indicates that the offender has engaged with his probation officer and the requirements of his sentence since 21 August.

24.	We have considered this material and the submissions on each side.  We would start by observing that the circumstances, and therefore the appropriate sentences for this particular type of offence, may vary very considerably.  The cases to which we have been referred illustrate this.  However, particular instances of the offence in different circumstances do not greatly assist us on this application.  Two cases which are potentially of assistance are both Attorney‑General's Reference cases which set out some of the general principles when determining the seriousness of the offence and from that, what the appropriate sentence may be.  The first is Attorney‑General's Reference No 68 of 2008 (R v Myrie) [2009] 2 Cr App R(S) 48, at paragraph 14.  Among other matters, the court emphasised three features of that case which increase the seriousness of the offence and which are features of the present case.  First, setting a fire as a premeditated act of revenge or, we would add, retribution. In the present case the offender had told his wife on the Friday (the day before the setting of the fire) that he was going to petrol bomb the flat. Second, setting a fire adjacent to or at premises which are known to be occupied at the time.  Third, setting a fire in a block of flats or houses of multi occupation, particularly at night, where the risks of the fire developing and spreading to adjoining properties hardly needs to be elaborated upon.

25.	The second case is Attorney‑General's Reference No 56 of 2015 (R v Hilton) [2016] 1 Cr App R(S) 9, in which the court emphasised the continuing relevance of Myrie while recognising that each case is fact specific.  

26.	We recognise that anti‑social behaviour and particularly loud continuous noise and vibration from neighbouring flats or houses can be highly oppressive and sometimes intolerably so.  Some people may become used to it, but many will not and there is no reason why they should.  The selfishness of neighbours may come to dominate their lives so as to exclude any real enjoyment of their homes.  We recognise that this is what happened in the present case. The offender had come to the end of his tether.  However, there are ways in which repeated anti‑social behaviour can be addressed lawfully and it is the duty of those charged to receive complaints about neighbours to take them seriously and act upon them appropriately.  In the present case, the offender committed a serious crime in an attempt to stop his neighbour's anti‑social behaviour.  He wanted to teach them a lesson.

27.	In our view, the seriousness of the offence, with the aggravating features indicating a high degree of culpability, warranted a sentence of the order of 6 years.  However, in the light of the background to the offending and the considerable mitigation available to the offender, that starting point could properly have been reduced to a term of 5 years before credit for the plea and, with full credit, for that plea to a term of 40 months.  A term of 2 years was unduly lenient.  We take into account that the offender has complied with his sentence since it was passed and accordingly the sentence that we substitute for the 2 years suspended sentence is a term of 38 months (3 years and 2 months) immediate imprisonment.