May, R v

MRS JUSTICE COX: This applicant, Michael May, who is now 53 years of age, pleaded guilty at the Southend Crown Court to recklessly acting in a manner likely to endanger an aircraft, contrary to article 73 to the Air Navigation Order 2005 made under the Civil Aviation Act 1982. On 31st July 2009 he was sentenced to a term of six months' imprisonment. His application for leave to appeal against that sentence has been referred directly to this court.

The facts briefly are these. Whilst on holiday in Thailand, the applicant, who lives in Chadwell St. Mary in Essex, had purchased a laser device as a novelty. In the early hours of the morning on 25th April 2008 the crew of a police helicopter, who were carrying out a surveillance mission, were flying over Chadwell St. Mary when the applicant, who lived in a block of flats, shone the laser light into the cockpit of the helicopter. As a result the pilot was temporarily dazed and disoriented and had to terminate the surveillance. The crew were then forced to terminate the search in order to avoid potential injury to themselves. They were, however, able to identify the source of the light using thermal imaging and identified the block of flats, where the officers saw a window open and the applicant standing at it. Subsequently officers attended the flats and arrested the applicant.

In his written basis of plea the applicant denied that his shining of the light was a deliberate and sustained attack by him, but he did accept that his actions were in all the circumstances reckless. He therefore fell to be sentenced on that basis.

The applicant had only one previous conviction in 1996 for three offences of dishonestly obtaining property by deception for which he was fined. The judge treated him as effectively a man of good character.

Passing sentence upon him, the judge referred to the very grave risks he had caused, creating life-threatening danger to the pilot, his crew and to members of the public on the ground if there had been an accident. He also referred to the fact that the use of such lasers was becoming increasingly common and to the need for a deterrent sentence in the circumstances. He took the view that the offence was so serious that only an immediate custodial sentence could be justified. He took into account the fact that no accident or injury was in fact sustained on this occasion and he had regard in addition to the applicant's personal mitigation, which included a number of continuing health problems. The sentence imposed was one of six months' imprisonment.

On the applicant's behalf, Miss Kresner accepts, realistically, that this was a serious offence which crossed the custody threshold. She submits essentially that the judge failed sufficiently to take into account the applicant's significant disabilities. The applicant was seriously injured in a motorcycle accident in 1997. As a result of his injuries he now has limited mobility in both legs, needing a stick to walk even for short distances, and he has lost the use of his left arm and hand. He lives in sheltered accommodation and requires special equipment and adaptations to assist with his daily living. Miss Kresner's submission is that in view of those disabilities the custodial sentence imposed should have been suspended.

We cannot accept these submissions. This was, as she acknowledges, a very serious offence and the judge was entitled to regard it as such. As the judge observed, the applicant's reckless behaviour not only endangered the lives of the helicopter crew but put at risk members of the public on the ground if there had been an accident. The consequences were potentially catastrophic. We accept of course that the applicant has a number of permanent disabilities which create problems for him in everyday living, but in our view the judge adequately took these into account in imposing the sentence that he did. We note in addition that the prison reports available to us today refer to the fact that the applicant's mobility problems have not prevented him from engaging in a variety of prison activities and courses, which have been of real benefit to him. In our judgment this sentence cannot arguably be said to be manifestly excessive or wrong in principle and we therefore refuse leave to appeal.

We would add the following observations in this case. We note that, notwithstanding the applicant's plea to acting recklessly, the judge conducted a Newton hearing, apparently in order to determine whether on the facts the applicant's conduct had amounted to a deliberate and sustained attack on the helicopter. In our judgment this was an unnecessary step. By his plea the applicant had admitted that he was aware of the risks posed by what he was doing, but nevertheless continued deliberately to shine the light at the helicopter. It was therefore unnecessary, for the purposes of considering the appropriate sentence, to enquire further into the facts or the applicant's conduct at the time.

We refuse leave to appeal against the sentence for the reasons we have given.