Smith, R. v

On 22 September 2008, at the Crown Court at Wolverhampton, the appellant pleaded guilty to an offence of assault occasioning actual bodily harm, which was the least serious of the charges she faced. On 19 December 208, she was convicted of attempted murder. On 17 March 2009 she was sentenced to imprisonment for public protection, with a minimum term of six years (less 265 days spent in custody on remand). She now appeals against that sentence by leave of the single judge.

The circumstances of the offence were these. The appellant met the complainant, Matthew Hipkins, in 2005. She was then 43 years old and he was 28 or 29 years old. The appellant's relationship with her long-term partner came to an end because she decided to start a relationship with Mr Hipkins. That was not a popular move with her family.

Unfortunately, the relationship with Mr Hipkins did not go well. He left her and started a relationship with another woman, which the appellant was unable to accept.

Mr Hipkins was employed as a delivery driver of catering supplies to a school. On the morning of 24 June 2008 he was making such a delivery. Two young men approached him. One hit him on the head with an implement which he assumed to be a baseball bat, which felled him and momentarily incapacitated him. He was then approached by the appellant. She wore a raincoat and dark glasses and carried a petrol can in her hand. She undid the petrol can and splashed petrol over Mr Hipkins. She produced a lighter and attempted to ignite it. Fortunately, she was unsuccessful. At that stage the head teacher at the school arrived on the scene. Mr Hipkins had managed to grab the appellant around her legs. She fell to the ground and the petrol can fell out of her hand. Another member of the school staff stood on the appellant's hands, forcing her to relinquish the lighter.

Mr Hipkins sustained cuts to his head and body and a burning sensation to his skin. That was the offence of assault occasioning actual bodily harm to which the appellant pleaded guilty.

In fact, the appellant was also drenched in petrol. She claimed to have intended to incapacitate Mr Hipkins so that he could witness her committing suicide and see the hurt that he had caused her. She had agreed to pay £400 to a "hard looking black man" to "put someone to the floor". We are told that one of the men who was involved in attacking Mr Hipkins pleaded guilty to aiding and abetting the act committed by the appellant.

The appellant suffers from multiple sclerosis. She attends this court in a wheelchair. Counsel informs us that she has deteriorated considerably since the trial; she was not then confined to a wheelchair.

The material before the trial judge indicated that in the view of the author of the pre-sentence report the appellant was a potential danger to anyone who might form a relationship with her. Accordingly, the judge concluded that she met the criteria of dangerousness under the relevant provisions of the 2003 Act which provide for either a sentence of imprisonment for public protection or an extended sentence. The judge took the view that a sentence of imprisonment for public protection was appropriate.

In our judgment, having regard to her state of health, the appellant's dangerousness can be placed at a slightly lower level than otherwise might be appropriate. In those circumstances we take the view that the appropriate sentence would have been an extended sentence rather than one of imprisonment for public protection. We take the view that there is a risk, albeit that the appellant's present state of health may in the end mean that that risk is not as great as it might otherwise have been. Nonetheless, we consider it necessary to have the protection available which would be provided by an extended sentence. The judge took the view that an appropriate determinate sentence was one of twelve years' imprisonment. In our judgment that sentence for an offence of attempted murder is entirely correct.

Accordingly, we substitute for the sentence of imprisonment for public protection an extended sentence which will be one of twelve years' imprisonment with a five year extension, during which the appellant will remain on licence. For those reasons and to that extent this appeal is allowed.

LORD JUSTICE RIX: The appeal is allowed. The sentence of imprisonment for public protection is quashed and in its place we impose an extended sentence of which the custodial part is twelve years (with 265 days spent on remand to count towards that sentence), and with an extended licence period of five years, making a total extended sentence of seventeen years.