Attorney-General's Reference No 39 of 2016 [2016] EWCA Crim 794

[2016] EWCA Crim 794Case No 201601410 A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 27th May 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE GILBART
MR JUSTICE SOOLE
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 39 OF 2016
Computer-Aided Transcript of the Stenograph notes of
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Mr J Hallam appeared on behalf of the Attorney General
Mr J Beal appeared on behalf of the Offender
J U D G M E N T (As Approved by the Court)

LORD JUSTICE DAVIS:

[1]On 26th February 2016, in the Crown Court sitting at Truro, the offender, Alan Hichens, who is now aged 52, was sentenced to a total of three years and eight months' imprisonment for a number of offences which he had committed against his former partner. He had pleaded guilty at an earlier stage, at a plea and case management hearing.[2]The offences in question were an offence of arson being reckless as to whether life was endangered, in respect of which he received a sentence of three years' imprisonment; an offence of arson, in respect of which he received a consecutive sentence of six months' imprisonment; and three offences of breaching a suspended sentence order which had themselves been imposed for breach of a prior restraining order, in respect of which he received a concurrent sentence of two months' imprisonment for each such offence but consecutive to the overall term imposed.[3]The Attorney General now seeks leave to challenge that overall sentence on the ground that it is unduly lenient. We grant leave.[4]The background position is this. The offender and Maria Long had been partners for some 26 years. They had a son between them and they lived together in the family home, which was a semi-detached house in Camborne in Cornwall. Eventually, the relationship between the offender and Ms Long came to an end. She began a relationship with another man and the offender moved out of the Camborne address.[5]The reaction of the offender to the ending of this relationship was, in effect, to begin a campaign of criminality directed at Ms Long and, in some respects, her new partner.[6]In February 2015 he assaulted Ms Long and was sentenced to a community order and was also made the subject of a restraining order. In May 2015 he breached that order by uttering threats to kill against both Ms Long and her partner. For that the court saw fit to give him a conditional discharge. Thereafter, between 23rd June and 6th July he made numerous threatening telephone calls to Ms Long and her partner, and in consequence he was charged with three offences of breaching the restraining order previously imposed. He was remanded on bail.[7]On 26th June 2015 Ms Long went on a two-week holiday. She left her car, which was an X registration BMW, parked on the driveway outside her home, behind a pair of closed electric gates.[8]Shortly before 2 o'clock in the morning on 5th July 2015 that car was set alight by the offender. He then approached a nearby taxi rank and directed the driver past the burning car before directing him onwards to his own final destination.[9]He was arrested in a pub in the evening of 6th July. Amongst other comments he made to the officers, he said this:
"I'm getting under your skin, aren't I? You hate me, don't you? What do you lot expect me to do when my wife of 20 something years has an affair with a lodger ... I'm not taking this from them."
[10]When he was interviewed he denied responsibility for the arson, claiming that he had been in Truro on the night in question and that the taxi driver who had seen him must have mistaken him for somebody else.[11]On 8th July 2015 the offender was sentenced to a sentence of 12 weeks' imprisonment, suspended for a term of two years, for the offence of breaching the restraining order. He was re-sentenced in like terms for the earlier offences of battery and breach.[12]When Ms Long returned home on 10th July, at the end of her holiday, she found that the electric gates were no longer working because the wires for them had been pulled away. Her car was a burnt-out shell. Because of the upset and anxiety which the arson caused her to feel, she did not consider that she could carry on staying at her home and moved away, telling her immediate neighbours but not broadcasting the fact widely.[13]At around eight o'clock in the evening of Sunday 9th August 2015, her neighbours noticed the offender in the vicinity of Ms Long's home. They saw him walk away from the house at around 8.30 pm. A few minutes after that they heard the sound of an alarm and shortly after that they saw smoke rising from Ms Long's home. The fire services were called. They attended swiftly and extinguished the fire.[14]The evidence was that the fire had been set in the hallway at the foot of the stairs. Various combustible materials had been heaped together in that region and a naked flame applied to them. Those materials included clothing, papers and shoes. The fire had caused damage to the hallway and staircase, and smoke from the fire rose up the stairs onto the first floor, where it caused extensive damage. Ms Long was not at the time insured against such damage. We were informed this morning that it is estimated that the total cost could be in the region of approaching £20,000.[15]The offender was arrested at his own flat in Truro on 10th August. He had climbed onto the roof of a bay window and threatened to jump off, but was persuaded to desist. When he was interviewed he denied responsibility for the offence, saying that he had been in Camborne with his sister that evening.[16]The offender is not a person of previous good character. He was born on 30th January 1964. He has ten convictions for 22 offences, spread over the years. A number of offences of violence had been committed in the late 1980s and early 1990s and he had received a custodial sentence. However, it is right to say that there was then a period of 21 years in which there was no offending until the offending which we have summarised and which commenced in 2015.[17]The case was sent up from the Magistrates' Court. There were a number of hearings at the Crown Court until a formal plea and directions hearing on 2nd February 2016, where the offender entered acceptable guilty pleas.[18]A pre-sentence report, quite rightly, had been obtained. The view taken by the Probation Service was that the offender was "extremely reticent" with them in interview. Amongst other things, this is recorded:
"Mr Hichens has said that he did not set fire to Ms Long's car. He said 'I pleaded guilty to it because I had no option but to plead guilty to it. The prosecution offered me a deal; they would drop other charges if I pleaded guilty to it'. When I asked him to clarify his position he said 'I definitely didn't do it'. Mr Hichens suggested that the fire may have been set by an accomplice of Ms Long to enable her to defraud her insurance company."
[19]There are further other statements by the offender in this interview with the Probation Service which indicate either minimisation or denial of his true responsibility. The view of the probation officer was that Mr Hichens, the offender, appeared to have little understanding of the harm that he had caused by his offending. The probation officer indicated, with no degree of understatement, that the offending "suggest[s] very worrying attitudes towards his former partner and to the end of their relationship". Understandably, given all these circumstances, the probation officer addressed the issue of dangerousness. This was said:
"Mr Hichens' attitude and recent pattern of behaviour suggest that he poses a significant risk to Ms Long and to any of her future companions ..."
[20]The sentencing hearing took place before the judge, His Honour Judge Carr, in the Crown Court at Truro in February 2016. Before that hearing the offender had sent a carefully and fully written letter to the judge by way of, in effect, mitigation. Amongst other things, he noted that he had filed complaints against the police in regard to what the offender regarded as malicious harassment of him by the police. He also, amongst other things, said this:
"I am not a violent man, I am a quiet man, as you can see. My actions were completely out of character and my time spent on remand has left me feeling ashamed upon reflection."
[21]The letter then asked for leniency and expressed remorse for what the offender had done.[22]The offender in fact represented himself at the sentencing hearing and was to say that he had been depressed and, in effect, his actions had been "a cry for help". He reiterated that he accepted full responsibility for his actions and was ashamed of them; and he also referred to his suicidal thoughts and depression.[23]An impact statement of Ms Long had been obtained and was provided to the court. She explained her understandable total devastation as a consequence of the fire in her home. She had been left so frightened of the offender that she was saying that once the repairs to the house were completed, she would sell up and move to an address where he could not find her. In the meantime, she was having to live in temporary accommodation.[24]In the course of his sentencing remarks the judge recited the background facts. As to the culminating offence of setting the fire in the house, the judge said:
"You seemed from the statements I have read to gain considerable pleasure from it"
. The judge then noted that it was more a matter of luck than anything else that there was prompt intervention by the fire service. The judge noted what the offender had said to the judge at the hearing and noted the contents of the pre-sentence report, and then said this:
"You have shown no remorse whatsoever. The position is that you still continue to see yourself as the victim as opposed to the person whose car you set fire to and the house you set fire to. I accept you pleaded guilty at the first opportunity for the purposes of sentence ..."

The judge then preceded to pass the sentences which we have indicated.

[26]One only has to recite the facts as we have done to reach the view, with all respect to this judge, that this sentence, taking matters overall, was significantly too low and was unduly lenient. Indeed, Mr Beal, in the course of his excellent address to us this morning and having discussed the matter with his client in advance, has accepted that this was an unduly lenient sentence. Indeed it was.[27]As Mr Hallam, appearing for the Attorney General today, has pointed out, this latter offending, first of arson and then arson being reckless as to the endangerment of life, was the culmination of a deliberate campaign of intimidation. The offence of arson with regard to the car was itself a bad one of its kind, committed at night during the currency of a community order and a restraining order and being borne out of revenge, he having travelled to his former partner's home for the purposes of burning her valuable car, which doubtless was very important to her. It was also undoubtedly designed to instill fear on her part.[28]As to the offence of arson being reckless as to the endangerment of life, that also was a very bad case of its kind. This too had clearly been planned and was part of a premeditated revenge attack. Moreover, not only was the appellant not of good character but this further act was committed both whilst he was on bail and whilst he was the subject of the recently imposed suspended sentence order, as well as being in breach of the restraining order. It involved him unlawfully entering the house. Quite how he did is not entirely established, it may be that he broke in, it may be that he still had a key enabling him to get in, the point is he had no right to be there at all. Then, having got in, he proceeded to set fire to these combustible items, placing them near the foot of the stairs and not far away from the front door.[29]Mr Hallam has submitted that the offender had no reason to think that Ms Long would be away from the house at the time, but we think that in this regard we should proceed on the footing that, being in the house at eight o'clock on Sunday, he would have taken the view that it was empty. The fact remains that what he did was very dangerous; and this of course was a semi-detached home so the occupants of the other part of the house would be put at risk, as would anyone, whether of the fire services or otherwise, who came to assist in putting out the blaze.[30]The judge found that there was no true remorse; indeed the offender, rather grotesquely, seems to consider himself as being the victim here, which of course is a complete nonsense.[31]Further, notwithstanding the judge's comments, it is not right to say that the offender had pleaded guilty at the first possible moment: because in fact there had been a number of hearings before he pleaded guilty, and of course he had initially denied the offence. In principle, we see no reason why he should be accorded anything more than a 25 per cent discount for his pleas of guilt.[32]All that said, Mr Beal has today told us that the offender is seeking to make the best use of his time in prison, that he has reflected on matters, that he is now remorseful, as Mr Beal tells us, and that he himself proposes to move away when he is released from custody. Time will tell as to whether all that is or is not so.[33]We should make one point. Quite properly, the pre-sentence report had addressed the issue of dangerousness. Clearly, there were grounds for concern here given the campaign of intimidation which we have outlined, culminating in this highly dangerous arson attack. For some reason, counsel then appearing for the prosecution (not Mr Hallam) did not raise this point with the judge; and the judge himself made no reference to this particular point. We have no means of knowing whether the judge consciously decided that dangerousness was not to be found and an extended sentence not to be imposed or whether the matter went by default. Be that as it may, and very fairly in the circumstances, Mr Hallam has indicated that he does not pursue in this court any finding of dangerousness or the imposition of an extended sentence. Nevertheless, we venture to suggest that the matter should at least have been expressly discussed in the court below.[34]We were referred to one authority in this particular field, the case of Attorney General's Reference No 68 of 2008 (Myrie) [2009] 2 Cr App R (S) 48. That was a case which had some similarity with the present case, but also had some differences. In particular, as Mr Beal was entitled to point out, in that case the fire had been set in the early hours of the morning outside a house where the offender had reason to think there were people inside the house, although, fortunately they escaped unharmed. That is, of course, significantly different from the present case. On the other hand, in Myrie the offender was of previous good character and what occurred there was not the culmination of a campaign of intimidation, as was the case here. The court in the case of Myrie indicated in general terms that the usual starting point range for arson with intent to endanger life following a trial would be in the range of eight to ten years, and whilst in cases involving reckless arson the range might be rather below that, the dividing line between the worst cases of reckless arson and the least serious cases of arson with intent was a fine one.[35]We have to have regard to the circumstances of the offending, as well as the circumstances of the offender and the position of the victim. We also have to have regard to considerations of totality. The judge elected to impose determinate sentences and, for the reasons we have given, we will follow that particular course.[36]In our view, on the count of arson being reckless as to whether life was endangered, we would have expected, given all the circumstances here, that a starting point of approaching eight years would have been taken had there been a trial. We would also observe that the six month sentence consecutively imposed by the judge for the arson with regard to the car was in itself, it can be said, a lenient sentence; one might well have expected a sentence in the order of 15 months on that count had there been a trial.[37]In the circumstances of this case, and having regard to considerations of totality, we will quash the sentence of three years' imprisonment imposed by the judge on count 4 and will substitute for it a sentence of six years' imprisonment. We will retain the consecutive sentence of six months' imprisonment on count 2, being the count of arson. The sentence with regard to the breaches of the suspended sentence order of two months' imprisonment will stand, but will run concurrently to the other sentences. The overall sentence is therefore increased in total to six and a half years' imprisonment. The appeal is allowed accordingly.