No: 2007/2574/A3 
Neutral Citation Number: [2007] EWCA Crim 2057
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 5 July 2007
 
B e f o r e:

LADY JUSTICE HALLETT DBE 

MR JUSTICE SILBER 

MR JUSTICE WILKIE 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NO 58 OF 2007   

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Computer Aided Transcript of the Stenograph Notes of  
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MR D PENNY appeared on behalf of the Attorney General 
MR M GREENHALGH appeared on behalf of the Offender 
 
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J U D G M E N T 

1.	LADY JUSTICE HALLETT:  This is a reference by Her Majesty's Attorney General, Lord Goldsmith QC, under section 36 of the Criminal Justice Act 1988.  He seeks the leave of the court to refer a sentence passed upon the offender, Robert S.  S is now 16 years of age, having been born on 12th April 1991.  S appeared at the Crown Court charged on an indictment containing one count of arson being reckless as to whether life was endangered, contrary to section 1 subsections (2) and (3) of the Criminal Damage Act 1971.  He was also charged with a count of burglary.  On 7th August 2006, the day the matter was listed for trial, he pleaded guilty to the count of arson but not guilty to the burglary.  These pleas were accepted.  Sentence was adjourned pending the preparation of psychiatric and pre‑sentence reports.  On 18th April 2007, having taken very much into account the contents of a psychiatric report, which recommended “intervention without the use of custody”, the judge sentenced the offender to a supervision order for two years.  He attached conditions of an intensive supervision programme for six months and a curfew order enforced by electronic tagging between 8 o'clock in the evening and 6 o'clock in the morning.  This was to last for some six months.  The offender was also sentenced to an anti‑social behaviour order for five years.  
2.	The facts leading to the sentence were as follows.  In January 2006, the offender, then aged 14, was living with his father.  He and his brother had left home because their mother felt that they were out of control and they lacked discipline.  The offender did not welcome his mother's attempts to keep him under control.  
3.	On 17th January the offender was, as was his habit, playing truant from school.  He and his friends waited until school had finished for the day and climbed onto the roof of the drama block.  The alarm on the drama block was not set because people were attending the sports and dance centres nearby.  One of the offender's friends forced the doors to the drama block.  The offender and his friends gained entry.  He was later to say that he thought his friends were intending to steal.  He, borrowed a cigarette lighter from one of his friends and "for a laugh" decided to set fire to a piece of paper.  The fire took hold quickly and the offender ran away to watch his handiwork.  He did not raise the alarm but fortunately an off‑duty firefighter who happened to be at the school spotted the smoke and he raised the alarm.  This was at about 7.45 pm.  Those attending evening classes at the dance and sports centres had to be evacuated.  It took 16 fire appliances and 80 firefighters several hours to extinguish the fire.  They eventually succeeded at about 4 o'clock on the following afternoon.  The fire could have been considerably worse had the fire service not acted so promptly and effectively.  Nevertheless, the fire caused the total destruction of the two floors of the drama block and all of the students' coursework contained therein.  The main upper building hall containing a 300 seat theatre and an adjoining drama studio were completely gutted.  Also completely destroyed was a special needs suite which included study rooms and offices.  The offices were equipped with 25 flat screen personal computers which had recently been installed.  The school library was also destroyed.  The total cost of the damage in money terms was conservatively estimated in the region of £3m.
4.	The offender admitted the offence that night to his friends and he told them not to say anything.  He laughed about it.  He also admitted setting the fire to others the following morning.  His mother, having heard rumours, pressed him to discover whether he was responsible.  He admitted that he was but told his mother he would not get into trouble because people were too scared to tell on him.  
5.	He was arrested on 20th January 2006.  In interview he admitted that he had been climbing on the roof with others and had broken into the school with them.  He denied setting the fire.  He answered "no comment" when he was asked questions about the fire.  He also answered "no comment" when his admissions to other people were put to him.
6.	However, on 25th July 2006 he was travelling in a car with a representative from the Youth Offending Team.  They were discussing the number of fires there had been at the school since 2000. Apparently, there had been some 23 fires.  The offender told Miss Jennison (of the youth offending team): "I got it right when I did it, you know just after Christmas and January, that's when I did it, that was the last time." She said to the offender: "I thought you were pleading not guilty" and his response was "Course I am".  
7.	He was remanded into the care of the local authority in April 2006.  He absconded on 3rd January 2007 and he was apprehended on 8th January 2007.  He was then remanded in custody until the date of sentence.  
8.	Mr Penny for the Attorney General put before us the following aggravating features.  First, the fire was set deliberately.  Second, there was the extent of the damage.  Third, there was the fact that adjoining buildings were occupied at the time the fire was set and took hold, thus requiring the fire service to evacuate them.  Fourth, there was the fact that other students course work was destroyed.  The mitigating features, as it seemed to Her Majesty's Attorney General, were the fact that the offender pleaded guilty belatedly and that at the time of the offence he was only 14.  Mr Penny also rightly reminded the court that there was no evidence that an accelerant had been used.  In summary, Mr Penny argued that the sentence was unduly lenient in that it failed adequately to take account of the gravity of the offence, the aggravating features and in particular the danger caused to innocent members of the public by the setting of fires.  He referred to a number of decisions of this court which he submitted indicated a broad range for an offender of this age in these circumstances of between two to four years' detention.
9.	Mr Michael Greenhalgh on behalf of the offender accepted that this was an offence of such gravity that a custodial sentence of some length might normally be expected, even for a young man of 14.  He further accepted that the range appears to be a bracket of two to four years.  He submitted, rightly, however, that we must place considerable emphasis on his age at the time of the offence and that we should acknowledge the offender deserved some discount for his guilty plea, albeit it was entered at a late stage.  In his written submissions he brought to our attention a number of problems this young man has faced at home. It is not just that he has fallen out with his mother. It seems there have been difficulties with both his parents.  When it was thought he could live with his father and find some form of support and security, unfortunately his father had to leave the country to attend to his work.  
10.	Mr Greenhalgh also invited us to consider the number of moves that this young man has had to make during the course of his life between foster placements,family and friends.  He conceded that the sentence may appear lenient but he reminded the court that the judge is an experienced crown court judge who undoubtedly had sympathy for the offender. He was mindful of the time the offender had spent on remand which was in the region of some three months.  He also emphasised the significant reliance placed by the judge on the psychiatric report prepared by Dr Edmondson.  Dr Edmondson recommended "a custodial therapeutic service with an open end".  Not surprisingly, the judge and Mr Greenhalgh did not really follow what was intended by this but enquiries were made and the doctor confirmed that the best alternative to a “custodial therapeutic service with an open end” was a supervision order.  Mr Greenhalgh argued that the judge was entitled to accept the contents of that report and its conclusion that this might be the one last opportunity to stop what might otherwise become a spiral of offending.  He urged us to allow the present sentence to stand in the hope that the doctor and the judge were right.  His task was made no easier by the fact that since the sentence was passed the judge seems to have been proved wrong. Nothing daunted, Mr Greenhalgh submitted that if there was any breach of the sentence it could be dealt with in the usual way by the courts.
11.	We understand the approach adopted by the learned judge and his aim, given this young man's background and his difficulties. However, in the normal course of events the sentence imposed upon an offender who committed an offence of this gravity, whatever his age, would be a lengthy custodial term.  This was, as Mr Penny pointed out, an extremely serious offence with potentially fatal consequences.  The fact that parts of the school were occupied should have been all too obvious to this young man, yet he set a fire deliberately and then watched the flames as the building burnt.  The cost of repairs was substantial in money terms.  We have no idea what the non monetary cost was to those students who lost their coursework.  No doubt their studies were considerably affected.  We also have to note that it took some time for this young man to admit responsibility for his actions to the authorities. He did not plead guilty until the day of trial.
12.	This is a young man who is out of control.  It seems that he believes he can behave as he likes and nothing much will happen to him.  In March 2005 he was given a referral order for offences of theft and failing to surrender.  In August 2005 a supervision order was made for similar offences.  In December 2005 another supervision order was made to run concurrently.  Then, for a further offence of theft another supervision order was imposed.  Those attempts at helping him must have failed. With the present offence his repeated offending, which was ascribed to his lifestyle and substance and alcohol abuse has escalated. 
13.	We do not underestimate the difficulties that this young man has faced and the effect upon him.  But, he has had numerous offers of help and so far he has failed to respond to them.  He has also failed to respond to the offer of help given to him by the instant sentence.  Sadly he has breached the order several times already and he has twice been returned to court.  He has missed several appointments.  He has removed his electronic tag and he has breached his curfew.  He has been arrested on suspicion of committing other offences. 
14.	In our judgment this young man needs structure, he needs support and he needs structure and support in a controlled environment.  It is not in anyone's interest, let alone his, to allow him to be free to roam the streets and commit offences with impunity.    
15.	In all the circumstances we feel we have no choice but to grant the Attorney‑General leave to refer this sentence.  It is plainly an unduly lenient one.  We quash the sentence imposed and we substitute for it a sentence of four years' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.  The sentence would have been considerably longer had it not been for the offender's age, for his belated plea of guilty and the fact that he has never previously been sentenced to a custodial sentence.  From that sentence the time that he has spent in custody on remand must be deducted.  
16.	Mr Greenhalgh, when is he going to surrender? 
17.	MR GREENHALGH:  I understand he is in custody at the moment at Wetherby Young Offender Institution.   
18.	LADY JUSTICE HALLETT:  On the car charge? 
19.	MR GREENHALGH:  Yes. 
20.	LADY JUSTICE HALLETT:  Do we formally need to make an order, even though he is in custody? 
21.	MR GREENHALGH:  I think it might be wise to make one in case he is released.  I think his local police station would be Pontefract. 
22.	LADY JUSTICE HALLETT:  If we say he is to surrender immediately? 
23.	MR GREENHALGH:  Yes, I am sure that would suffice.
24.	MR PENNY:  My Lady, I should think that will do the trick. 
25.	LADY JUSTICE HALLETT:  If there is any doubt and anything occurs to either of you we are here for the rest of the day so let us know.  If we do not hear from you the order will be he is to surrender immediately.
26.	MR PENNY:  My Lady, there is only one further matter.  The judge of course imposed an anti‑social behaviour order and it is of course likely that he will be released from the sentence that your Ladyship and your Lordships have imposed in something approaching two years time.  The order was for five years that the judge made.  I do not know whether your Lordships wish to maintain the anti‑social behaviour order. 
27.	LADY JUSTICE HALLETT:  What is the anti‑social behaviour ‑‑ is it to not commit offences, or not to go places, or what? 
28.	MR PENNY:  The terms are as follows.  1. Engage in conduct which causes or is likely to cause harassment, alarm or distress to others or incite or encourage others to do so in the Wakefield Metropolitan District area.  2.  To touch or enter any unattended vehicle without the express permission or knowledge of the owner within the Wakefield Metropolitan District area.  3.  Have contact with or talk to in public in the Wakefield Metropolitan District area any of the following ‑‑ and then eight individuals are identified who are his associates effectively.  I suppose in a sense certainly aspects 1 and 2 of the order are an order not to commit offences. 
29.	LADY JUSTICE HALLETT:  I am glad you brought this to our attention, Mr Penny.  This troubles me.
30.	MR PENNY:  May I leave it there. 
31.	LADY JUSTICE HALLETT:  Do we assume that the order was made ‑‑ who applied for the order? 
32.	MR PENNY:  I do not know.   
33.	LADY JUSTICE HALLETT:  Can you help?  
34.	MR GREENHALGH:  It was originally on the instruction of the local authority that the Crown applied on sentence for an order in those terms. 
35.	LADY JUSTICE HALLETT:  Was it after he had been sentenced to a community penalty that they applied for the anti‑social‑‑‑‑ 
36.	MR GREENHALGH:  It was part of the sentencing exercise so all at the same time. 
37.	LADY JUSTICE HALLETT:  Was it when they thought he might be in the community that they applied for it? 
38.	MR GREENHALGH:  Well, no, it was before that.  The application was made before he was sentenced, but the sentence was made at the conclusion of the criminal proceedings as a bolt on the anti‑social behaviour order. 
39.	LADY JUSTICE HALLETT:  Is this frequent? 
40.	MR GREENHALGH:  It is becoming so, my Lady.  It is not unknown.  What I would say is that in cases where there is a lengthy custodial sentence I think it is not generally regarded as necessary to impose an anti‑social behaviour order in addition to that. 
41.	LADY JUSTICE HALLETT:  I can see how if the Crown gets wind of the fact the judge might be considering a non‑custodial sentence.  What do you say? 
42.	MR PENNY:  My Lady, I was simply going to say of course there is going to be a licence in any event in relation to the sentence which your Lordship imposed. 
43.	LADY JUSTICE HALLETT:  Indeed.  What do you say about the anti‑social behaviour order, Mr Greenhalgh? 
44.	MR GREENHALGH:  In the circumstances of the very lengthy custodial sentence which has now been imposed it is unnecessary, in my submission, for him to be subject to an anti‑social behaviour order in addition to that.  As my learned friend says there will be a licence. 
45.	LADY JUSTICE HALLETT:  It seems to have been targeted at his hanging around street corners, taking cars and operating within a gang. 
46.	MR GREENHALGH:  That is the thrust of it, my Lady, touching cars I think. (Pause) 
47.	LADY JUSTICE HALLETT:  Mr Greenhalgh, we feel in the light of the sentence we have now imposed that the anti‑social behaviour order is not appropriate.  Plainly if there are any fears at the time when the authorities are considering his release on licence they can put conditions on his licence.  We think that would be a better way of dealing with this matter.  So we will quash the anti‑social behaviour order.  Thank you for your help.