Myrie, AG Reference 68 of 2008 [2008] EWCA Crim 3188

Case No 200806082/A9[2008] EWCA Crim 3188
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 19th December 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SCOTT BAKER
MRS JUSTICE RAFFERTY DBE
HIS HONOUR JUDGE STEPHENS QC
(Sitting as a Judge of the CACD)
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 68 OF 2008
(OWEN ANTHONY MYRIE)
Computer Aided Transcript of the Stenograph Notes of
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Mr L Mably appeared on behalf of the Attorney General
Mr G Smith appeared on behalf of the Offender
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

The

[1]Attorney-General seeks leave to refer a sentence of 30 months' imprisonment imposed on Owen Anthony Myrie to this court as unduly lenient. We grant that leave.[2]The offender, Myrie, is aged 39 and pleaded guilty in the Crown Court at Croydon to a single count of arson being reckless as to whether life would be endangered, contrary to section 1 of the Criminal Damage Act 1971. The sentence was imposed by Her Honour Judge Downing.[3]The facts of the case are these. In the early hours of Saturday 14 June 2008 the offender started a fire at the address of a man called Norbert John. The offender poured a flammable liquid, probably petrol, onto the outside of the house, including on the front door and then lit the liquid and a mattress located below the living room window. He then lit the area with a naked flame. A neighbour saw the resulting fire and managed to raise the alarm, waking Mr John and his family, thereby enabling them to leave the house safely. There were two children in the house and the neighbours fortunately were able to get them out as well.[4]The fire brigade arrived and extinguished the fire, preventing it from spreading to the inside of the house. The offender committed the offence as an act of revenge following an altercation with Mr John a few hours before.[5]In a little more detail, what happened was this. At about 9 o'clock on the previous evening, Friday 13 June, the offender, who was driving a white van, was involved in a minor road traffic accident near Croydon with a car driven by Mr John. Matters became heated by the roadside. The offender produced a baseball bat. Mr John took out a Stanley knife from his car and the two men became involved in a scuffle. The offender it seems received an injury which caused some bleeding and Mr John then drove away from the immediate scene. The police arrived and spoke to the offender. A second police unit found and spoke to Mr John, who was still in the vicinity of the incident. The police decided to treat the incident as a damage only accident and for the purpose of facilitating insurance claims ensured that the details of the parties were exchanged. It was by this means that the offender obtained details of Mr John's address in Selsdon. On receipt of the information the offender told a police officer:
"I'm telling you I'm going to get my revenge for this."
The officer warned him against doing anything stupid.[6]Later that night, at some time after 1 o'clock the following morning, a neighbour of Mr John's heard a loud explosion and the sound of breaking glass. He looked and saw flames at the door of Mr John's mid terraced house. He went to the house and raised the alarm, banging and shouting for the occupants to get out. Inside were Mr John and his wife who were asleep on the sofa in the living room and their two children aged seven and 15. The alarm woke Mr John. He looked out of the window and saw flames at the front of his house. The children were taken outside to safety and Mr John and his wife also left.[7]Mr John went outside and by throwing buckets of water over the flames managed to extinguish the fire at the front door. At that moment the fire brigade arrived and extinguished the fire at the window. It was noticed that there was a strong smell of petrol at the front of the house. Officers spoke to a number of witnesses and established that a man had been seen running from the front door and then driving off in a white van.[8]A fire investigator visited the scene later in order to establish the cause of the fire. She found that the damage, which was estimated at some £7,000, included substantial damage to the front door and that the charring was confined to the outside of the house. She concluded that the fire had been started by the introduction of a flammable liquid to the outside of the house and combustible material, namely the mattress below the living room window. The area had then been ignited with a naked flame. The mattress had been left outside by Mr John some time before.[9]On the afternoon of 14th June the offender was arrested. He was asked about his van. On looking outside he said it was not in the street where he had left it and it must have been stolen. However, the police found a set of keys in the offender's possession and shortly afterwards the van was found parked nearby. When the doors were opened there was a strong smell of petrol immediately apparent. A carton containing what appeared to be petrol was found in the back.[10]The offender was interviewed under caution. He denied the offence and was charged on 15th June.[11]He has a previous conviction for handling stolen goods, in 1989, and three road traffic offences, for which he received fines in total of around £250. For sentencing purposes, he was a man of previous good character.[12]The pre-sentence report was available to the judge and this concluded that the offender had expressed remorse for his actions and demonstrated an understanding of how his conduct had affected others. The report assessed the likelihood of him committing further offences of a violent nature as medium.[13]There was also a psychiatric report which concluded that there were no relevant mental issues in the offender's case and that the likelihood of re-offending was low.[14]Mr Mably, who has appeared for the Attorney-General, has helpfully drawn the court's attention to the aggravating and mitigating features in this case. The aggravating features are, first, that the offence was committed as a premeditated act of revenge. In our judgment, this is a significant feature in an arson case. There was in the present case the preplanning to the extent that it was necessary, first, to go away and obtain the petrol. Secondly, the offence was committed at night and accordingly at a time when it would have been obvious that the occupants of the house were likely to be asleep inside, as indeed they were, including two children. Third, the property was a mid terraced house. That plainly means that there is an increased risk of the fire spreading to adjoining properties. Fourth, the fire was started at the main entry and exit point of the house, the front door. Fifth, having started the fire the offender left the scene and did nothing to raise the alarm.[15]As to the mitigating features, the offender pleaded guilty and was entitled to full credit for that. The fire was started outside the property rather than inside and in the event did not spread to the inside of the house. The offender is a man of previous good character and it is plain that there was substantial mitigation in that he had given long service to the public as a bus driver and there were many positive features to his life. Finally, this was a case in which not only was there a plea of guilty, but there was genuine remorse on the part of the offender.[16]The judge's attention does not appear to have been drawn to any of the relevant authorities on sentence in arson cases. This, in our judgment, is most regrettable, not least because sentencing in arson cases is very often not by any means an easy exercise. Mr Mably, on the other hand, has been able to draw this court's attention to all of the authorities and that has been of considerable assistance to us.[17]We should perhaps begin by making the possibly obvious observation that arson cases, like many other cases, are very much fact specific. But there are certain features that do arise from the authorities which it is particularly important to bear in mind.[18]The first case to which we were referred is Attorney-General Reference No 1 of 1997 (Glen Wheeler) [1998] 1 Cr App R(S) 54. In that case the offender pleaded guilty to arson being reckless as to whether life would be endangered. The nature of the offence is important, because arson being reckless as to whether life would be endangered comes one stage below, in terms of gravity, arson with the specific intent to cause danger to life. In that case the offender started a fire in a ground floor flat by setting fire to a cushion on a settee whilst the occupant was in the flat asleep in bed. He knew that the occupant, Mr Perry, had been drinking and must also therefore have known that he might fall asleep. A probation order was varied to a sentence of four-and-a-half years' imprisonment following a plea of guilty. That was a case where McCowan LJ said at page 56 of the report:
"We consider that the right sentence in these cases, and certainly the right sentence in the present case, would have been one of six years..."
We repeat, that that was a case where there was a plea of guilty and the court went from 6 years to four-and-a-half years on the basis of double jeopardy. That was a substantial discount, we would observe, because it was a case where the offender was not already in custody.[19]The next case is R v Gerrard [2004] 2 Cr App R(S) 11, at page 47. There the offence was again arson being reckless whether life would be endangered. In this instance by throwing a petrol bomb at the front door of a house occupied by a person who had given evidence against the appellant. A sentence of 7 years, following a plea of guilty, was reduced to 6 years, with 12 months consecutive for taking revenge against a witness. There are a number of features about the case of Gerrard that are similar to the present case, not least that that was a case involving an act of revenge.[20]Attorney-General's Reference No 23 of 2001 (R v Fielder) [2001] 2 Cr App R(S) 514, again involved an offence of reckless arson. In that case a sentence of three-and-a-half years was increased to 5 years. That was a case in which the offender knew that the premises were unoccupied. The sentence was passed, albeit with some doubt on the part of the appeal court on the basis that it was being treated as a spur of the moment offence.[21]Then comes the case of R v O'Brien [2003] 2 Cr App R(S) 99, at page 599. Another case of reckless arson, this time following a conviction, where 10 years was reduced to 6 years. The premises in that case, however, were unoccupied. The offence was premeditated and the damage was caused inside the premises.[22]Then Attorney-General's Reference No 50 of 2005 (R v Andrews) [2006] 1 Cr App R(S) 82, at page 473. That was a case of reckless arson, committed by somebody who was aware that the hostel to which he set fire was empty. A sentence of 3 years was imposed following conviction, the court saying that it should be increased to four-and-a-half years and that the appropriate sentence would have been one of 6 years.[23]Then there is R v Frankham [2007] EWCA Crim 1320 in which Thomas LJ, giving the judgment of the court, said at paragraph 9:
"But the cases cited to us relating to the appropriate sentences for offenders who commit arson with intent to endanger life show that the starting point tends to fall in a range of eight to ten years' imprisonment."
When we first read this authority we had some doubt as to whether that was the starting point that the judge considered appropriate following a trial, but we think that that must be the case when we look at his observations in the following paragraph and reference to two earlier authorities.[24]Finally, we turn to Attorney-General's Reference No 98 of 2001 (R v Hussain) [2001] EWCA Crim 3068. That was a reckless arson case. The premises were occupied by the offender's wife and daughter. After a trial lasting five days the offender was convicted. Mance LJ said at paragraph 37, that in that case a sentence of at least (and we emphasise those words "at least") 6 years would have been appropriate on an initial sentencing exercise. Mance LJ sought to distinguish the case from the earlier decision to which we have referred of Wheeler. What happened in this case is that a community rehabilitation order to which the appellant had been sentenced, was increased to a sentence of 4 years' imprisonment.[25]Having given due consideration to all the authorities, it seems to us, in particular following the case of Frankham, that the starting point for arson with intent to endanger life is in the range of eight to 10 years (that would of course be following a trial); and in cases involving reckless arson, we would regard the range as rather below that, but it is apparent to us that the dividing line between the worst cases of reckless arson and the least serious cases of arson with intent to endanger life is a fine one. We are entirely satisfied that the aggravating features of the present case, which we have described, and even after taking into account the various mitigating features to which we have also referred, that this a case that falls at the upper end of offences of reckless arson.[26]We have come to the clear conclusion that the sentence imposed on this offender was in the circumstances unduly lenient. We think that following a plea of guilty, a sentence approaching 6 years would have been appropriate in this case. That indeed takes into account the very substantial mitigation that this offender had. Taking into account the fact that he is being sentenced for the second time, we think that the appropriate sentence with which to replace two-and-a-half years is one of four-and-a-half years' imprisonment. The sentence will be varied accordingly with full credit for all the time spent in custody.

Cited in 2 later judgments