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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney General's Reference No. 50 OF 2005 [2005] EWCA Crim 2041 (22 July 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/2041.html Cite as: [2005] EWCA Crim 2041

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Friday, 22nd July 2005

1. LORD JUSTICE KENNEDY: HM Solicitor General seeks the leave of this Court to refer to the Court a sentence which he considers to be unduly lenient. We grant that leave.
2. The offender, Joe Boniface Andrews, was 21 years of age, having been born on 14th August 1983. On 18th March 2005 he was convicted of arson being reckless as to whether life would be endangered. Sentence was adjourned for the preparation of reports, and on 29th April 2005 he was sentenced to three years' imprisonment.
3. It appears that the offender was unhappy with the accommodation with which he had been provided and set fire on two occasions to those premises in the hope that the property would be destroyed and he would be moved into his own accommodation. On the first occasion his attempt was unsuccessful and the fire went out, but on the second occasion the fire destroyed the premises and the offender apparently watched the fire take hold and made no effort to warn anyone in the premises or elsewhere. It subsequently emerged, though it was not apparent at the time of the hearing before the Recorder, that the damage done amounted to £120,000.
4. He had lived for some two years or so in a four bedroomed mid-terrace house (hostel) for ex-offenders at 26 Knoll Road in Wandsworth. It was at about 7.00 p.m. on 21st September 2004, when the other residents were away from the house, that he set fire on the first occasion in the kitchen. He poured petrol over the floor, ignited it with matches and then went outside to watch. The fire alarm went off and a neighbour went outside to investigate. The offender did not volunteer what he had done. Because the fire was not visible, the neighbour then returned to his address. That first fire, as we have already indicated, burnt itself out.
5. But an hour later, just after 8.000 p.m., the offender went to a local service station to buy more petrol and matches. He then returned to Knoll Road and made a more determined attempt to burn the house down by pouring the contents of the petrol in the caretaker's front bedsitting room on and the stairs and in the passage way. On this occasion he was successful and created a much fiercer fire. He ran from the address, out into the street and watched the house burn. It was quickly engulfed in flames. Fire fighters attended and, although they were able to stop the fire spreading to adjoining premises, the hostel itself at 26 Knoll Road was destroyed.
6. Police officers asked the offender whether anyone was inside. He replied, "I don't know and I don't care. None of them are my friends. I am like a ghost without friends or family. I want to see it destroyed". He said he had lived at the address for two years and no longer wished to live there. He was arrested and searched and the receipt for the purchase of the petrol and matches was then discovered.
7. In interview he denied setting the fire. He said he had bought the petrol for a friend to put into a car.
8. He had one previous conviction. On 4th February 2002 he pleaded guilty to an offence of robbery and was sentenced to eight months' detention in a young offender institution. It appears that it was following that period of detention that he was accommodated in these premises.
9. A pre-sentence report was prepared in which it was said that the offender had an unhappy childhood. At the age of nine he was sent to this country from Sierra Leone to live with his father and he had no further contact with his mother. In London it was said that he suffered physical abuse and was taken into care for two years. He then left school without formal qualifications when he was 17 and he was then asked to leave the family home. Following release from custody, he was housed, as we have said, in this hostel in Wandsworth where he became depressed. Members of the hostel staff had reported concerns about an apparent deterioration in his mental health during the months prior to the offence of arson. In the light of his prior behaviour, his apathy and his indifference at the time of offence and lack of concern at his present situation, the author of the pre-sentence report assessed the offender as representing a high risk of similar reoffending.
10. A psychiatrist, Dr Patel, found that whilst the offender exhibited some paranoid personality traits, involving suspiciousness and a persuasive tendency, a combative and tenacious sense of personal rights and so forth, he did not suffer from any form of mental illness. It is worth noting that in a prison service report which we have before us, which is dated 9th June 2005, it is said that even now there are no medical issues to be taken into consideration.
11. On behalf of the Solicitor General it is submitted by Mr Laidlaw that there were here aggravating features. This was a planned and determined attempt by the offender to destroy property. He set fire to the building on two occasions. It was a mid-terrace house, giving rise to an obvious risk to neighbouring properties and to fire fighters. He gave no warnings and made no attempt to alert neighbours to the danger they were in and he watched as the fire took hold. The damage caused to the house was very significant, as is apparent from the photographs which we have seen. He had the previous conviction to which we have referred. Furthermore, the documentation does not show any sign of remorse and very little understanding as to the seriousness of his actions and the risk that his actions present to other members of the public.
12. On his behalf Mr Ollennu has submitted that we should not regard the sentence of three years' imprisonment, which was imposed, as unduly lenient. He draws our attention to the points made by the sentencing judge, namely that the hostel itself was empty and that there was no evidence that either of the adjoining properties was occupied at the material time. Furthermore, as we have already indicated, there was no evidence before the lower court as to the monetary value of the damage. Mr Ollennu also invites our attention to the circumstances of this offender's early life, to which we have already briefly referred. There is no doubt that they were themselves distressing both in Sierra Leone and in Liberia and later, it would seem, even in London.
13. But the fact remains that, unlike many other cases of arson, this is a case in which there is no apparent medical issue to be taken into consideration.
14. Mr Laidlaw has invited our attention to three decisions of this Court starting with the case of Attorney General's Reference No 1 of 1997 (Wheeler) [1998] 1 Cr App R(S) 54. That, too, was a case of reckless arson where there was recklessness as to the danger to life which would be occasioned by the offending. That, too, was a case where there was, it seems, no mental element for the court to take into consideration. In that case, where there was a plea of guilty, this Court expressed the view that a sentence of six years would have been appropriate at the time of sentencing and a sentence of four and a half years' imprisonment was imposed by the Court to take account of the element of double jeopardy.
15. In the case of Reynolds [1999] 2 Cr App R(S) 5 the circumstances were broadly similar to those with which we are concerned, save for this important factor, that there was there an element of revenge. That was a matter for the court to take into consideration when deciding what the sentence should be. If the court is concerned not so much with the gravity of the previous offending but with the risk of offending in the future, then it is, of course, necessary to think in terms of whether there should be an extended sentence. That was not a matter which arose in the case of Reynolds it would seem. In those circumstances, the court on that occasion after a plea of guilty imposed a sentence of six years' imprisonment. That was said by this Court not to be unduly severe.
16. We turn finally to the case of O'Brien [2003] 2 Cr App R(S) 599. That was the case where there was a conviction in relation to an offence such as that which has to be considered in the present case. On conviction the sentence of six years' imprisonment was imposed. In that case the offender had attacked the premises it would seem of a former girlfriend, but he was a man of 68 years of age. The premises were empty at the time. The Court considered it appropriate to reduce the sentence imposed from one of ten years' imprisonment to one of six.
17. In the present case there is no doubt as to the gravity of the offending. It was, as was indicated, a determined and persistent piece of offending in which the offender appeared to have no particular realisation at all of the gravity of what he was doing and the risk that it presented to other people. It is true that there was no one who was in fact in danger, but his remarks to the police at the time when they came upon the scene are chilling.
18. In the circumstances, it seems to us, having regard to the other authorities to which our attention has been invited, that the sentence in this particular case was unduly lenient. Even allowing for the plea of guilty, the sentence, in our judgment, should have been of the order of six years' imprisonment. Having regard to the fact that he now falls to be sentenced for a second time, we set aside the sentence of three years' imprisonment which was imposed and we substitute for it a sentence of four and a half years' imprisonment. To that extent this application by HM Solicitor General succeeds.