Bowser, R. v

MR JUSTICE NELSON: On 15 September 2005, the appellant pleaded guilty to arson, being reckless as to whether life would been endangered, and to intimidation. He had earlier, on 17 August 2005, pleaded guilty to theft, threatening behaviour, possession of an offensive weapon and damaging property. On 6 December 2005, he was sentenced to imprisonment for public protection for the offence of arson, imprisonment for public protection in respect of the intimidation and the period specified under section 82A of the Powers of Criminal Court (S) Act 2000 was set at three years. For the other matters, to which he had earlier pleaded guilty, he was sentenced to nine months for the theft, four months for threatening behaviour, four months for possession of an offensive weapon and four months for damaging property, all concurrent.

He appeals against the sentence of the three years specified period under the imprisonment for public protection for arson by leave of the single judge. The facts are that at about 8 o'clock in the evening on 24 May 2005, the complainant, Ms Carter, a friend of the appellant's, arrived at his home and was joined there about half an hour later by her son. There was an argument between the appellant and Ms Carter about some jewellery and a DVD player. The Carters left and as they were walking back to Ms Carter's home, the appellant caught up with them and asked for the jewellery that he had earlier given to them to be returned. The jewellery was not returned and an altercation developed. Ms Carter and her son then continued on their way back to her home.

After her arrival there sometime afterwards, her son left and shortly after that she heard a tap on the bedroom window and, when she looked out, she saw the appellant standing with a rock in his hand. He started throwing stones at the window, causing it to break. A number of other pieces of rock came through the broken window and the appellant was shouting, "If you don't come down and give me my chain, I am going to kill you and your son." Ms Carter was fearful of this, believing he might carry out the threats, so she called for help. A security guard in the complex where she lived answered her phone call, came to investigate and saw the appellant standing outside her home, shouting and angry.

He saw that the appellant had a saw blade, which he thought was about 8 inches long. He approached the appellant, asked him to calm down, but the appellant said that he would start on him unless he went away and proceeded to throw more stones at Ms Carter's window. As a result, the security guard called the police and, following their arrival, the appellant was arrested. When he was interviewed, he accepted he had smashed a window and had had a hacksaw blade, which he said he found in a skip. He also accepted threatening to kill Ms Carter, said he had meant it and accepted calling the security guard a black bastard. He said the jewellery he had given her was stolen property because he had seen the police chasing a man from a burglary of a building and the burglar had dropped the jewellery over a wall, so he had picked it up a short while later. He added that he had pawned some of the jewellery. He was charged in relation to those matters and released on bail.

About one week later on 1 June 2005, shortly after 8 o'clock in the morning, Ms Carter was in her flat when she became aware of someone trying to push something through her letter box. She looked through the spy hole in the front door and saw the appellant, so held the inside of her letter box shut so that he could not push anything through. She continued to watch him in the porch area and he appeared to be tampering with her electric and gas meters. He then left. A few minutes later, however, the fire alarm in her flat sounded. She checked and found nothing within the flat, but she did see smoke coming from under the front door and when she checked through the spy hole, saw flames outside. She put a fire extinguisher nozzle from an extinguisher she had in her flat through the letter box and put the fire out.

The police were summoned, the area was cordoned off. The meters were checked, and a broken jar, in the bottom of which were several screws and white spirit with what appeared to be a wick and something fashioned like a wick wrapped in fabric, was recovered from the porch. The device was examined and it was found that it would not explode and could not function as an explosive or anti-personnel device, but it gave the impression that it was intended to function as such a device. The appellant was arrested and his clothing and various items from his flat were seized.

When interviewed, he denied the offence, saying the last time he had seen Ms Carter was on the day of the previous offences and that he had a doctor's appointment at the time of the arson. He explained the presence of white spirit on his clothing as a result of his work as a cleaner at a computer club.

He was born on 8 June 1959 and is 46. He had some 14 convictions for some 22 offences, including two for assault, three of drunk and disorderly and several for dishonesty. A pre-sentence report of November 2005 recognised the likelihood of a sentence of imprisonment for public protection, given the high risk of his reoffending and the high risk of serious harm to a known adult, Ms Carter. He appeared unwilling to address his problematic behaviour towards her. Although he had pleaded guilty to the arson, he said that this was only to save the court time and denied, when he was seen by a psychiatrist, that he had in fact committed the offence of arson.

The psychiatrist also reported in November 2005, and concluded that he had a significant past history of alcohol dependence, but there was no evidence he was suffering from any mental illness or psychiatric disorder. His adamant denial that he had not committed the offence of arson meant assessing the risk he posed was difficult. But until he was able to acknowledge he had committed the offence, the future risk of fire-setting was unknown. He tended to minimise his offending.

When the judge sentenced him, he said that most of these offences had arisen out of the breakdown of his friendship with Ms Carter. By far the most important part was the arson, the judge said and the intimidation. He had gone to her flat and left a device, with which he set fire to the front door; she did not realise what was going on until the fire alarm went off, and she was then able to extinguish the fire. There was some damage to property, but the offence was clearly serious because he had done it deliberately and knew she was at home. He did have a record, but for nothing as serious as this.

Imprisonment for public protection was necessary for the arson and intimidation, credit would be given for the plea, but there were serious risks associated with him should he become intoxicated and fall out with someone again. Had he contested the arson, the judge said he would have received nine years. Allowing him a third off for his plea took it to six years, so that the minimum period, according to the manner in which such sentences are dealt with, would be half of that, making it three years on the arson count and the intimidation count. The other sentences would run concurrently.

In the grounds of appeal, it is submitted that the judge adopted too high a starting point for the arson; that was much more appropriate for arson with intent rather than reckless arson. Before us today in his helpful and succinct submissions, Mr Bullen has submitted that the judge did not appear to have taken account of the fact that, although he had originally been charged with arson with intent, the indictment had been subsequently altered to reckless arson. It was to that offence, reckless arson, to which the appellant had pleaded guilty.

In his sentencing remarks at the end of the first paragraph on the first page, the judge actually said:

This is highly material, Mr Bullen submits, because the authorities suggest that there is a difference in sentencing levels for reckless arson compared with arson with intent. Thus, in the case of the Attorney General's Reference number 66 of 1997, the case of Anthony Charles Roberts, where there was arson with intent to endanger life, an offence committed at night with people asleep, several fires lit, petrol placed on the carpet, the court, when dealing with the case, said that a sentence the court would have expected, following a trial, would have been within the range of eight to 10 years.

Mr Bullen also relied upon the case of R v Harding 2000 1 Cr.App.R. (S) 327, in the same volume as the Attorney General's Reference 66 of 1997, and pointed out that in that case, where reckless arson was charged, the sentence was one of four years which was upheld in the Court of Appeal, where there had been more serious damage than had occurred here and there had been a number of fires, indeed there had also been damage to the next-door house.

We have considered those submissions; there is no doubt at all that this was a serious offence. The appellant sought to put, effectively, a homemade firebomb through the letter box of the complainant's flat, with, inside the jar, not merely a wick and white spirit, but screws. Had the complainant not kept her letter box shut, the lighted jar could have caused fire damage and, had she not had the presence of mind to pick up a fire extinguisher and put out the flames -- through the letter box -- of the firebomb left outside her front door, damage may well have been caused to the outside of her flat.

This was not a reckless arson case, as sometimes occurs, of a disturbed person making what is, in effect, a cry for help, but a deliberate, albeit incompetent, attempt to do what could have been very serious damage. Even though the device could not explode, it appeared as if it was intended to do so and it was certainly capable of causing damage by fire. It looked as if it was intended to cause fear, as inevitably it did. The appellant was also hostile to Ms Carter, as demonstrated by the attempt and his attitude afterwards.

In these circumstances, it was not surprising but inevitable that the sentence of imprisonment for public protection was passed as the judge rightly regarded this as a very serious offence. This court, however, considers that the sentencing in court did not pay sufficient attention to the difference between arson with intent and reckless arson when considering the specified period. Indeed it does appear as if the judge may, unfortunately, have had arson with intent in mind, even though it was reckless arson to which the appellant had pleaded.

The sentencing bracket is higher for arson with intent rather than reckless arson, although this court is quite content that this is at the upper end of a reckless arson case. The appropriate sentence, given all the circumstances in the view of this court for the specified number of years under section 82A of the 2000 Act, is one of six years. From that must be deducted two years to allow for the plea of guilty. Fifty per cent of that should then be taken to produce a sentence of a specified term of two years. That will be substituted for the specified period of three years passed by the judge.

There are two other matters that need to be dealt with. First of all, it should be noted that the offence of imprisonment for public protection could not, in fact, have been passed, as it was for the offence of intimidation; this is not a specified offence under the Criminal Justice Act 2003. A determinate sentence should therefore have been passed. In the circumstances, the sentence of imprisonment for public protection must be quashed. The appropriate determinate sentence, in the view of this court, is one of three years, which is substituted for the sentence of imprisonment for public protection.

Secondly, the maximum term of imprisonment for criminal damage at the level of value, as occurred in this case, is one of three months. The judge passed a sentence of four months, which is above the maximum. The appropriate sentence, taking into account all the circumstances and the pleas, is one of two months' and accordingly that will be substituted for the sentence of four months in respect of the criminal damage.

To this extent, the appeal is allowed.