No: 200900802/A4 
Neutral Citation Number: [2009] EWCA Crim 1059
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Tuesday, 12th May 2009
 
B e f o r e:

LORD JUSTICE DYSON
MR JUSTICE OUSELEY 
THE RECORDER OF KINGSTON‑UPON‑HULL 
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

GORDON ROBERT MASTERSON 
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Mr R Eaton (Solicitor‑Advocate) appeared on behalf of the Appellant
Mr A Bull appeared on behalf of the Crown
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J U D G M E N T
1.	MR JUSTICE OUSELEY:  On 5th November 2008 the appellant pleaded guilty to arson being reckless as to whether life was endangered.  On 20th January 2009 His Honour Judge Alexander QC at Northampton Crown Court sentenced him to five‑and‑a‑half years less time spent on remand.  He appeals with leave on the grounds that that sentence was manifestly excessive.
2.	By 28th September 2008 the appellant, who was 31, was in both financial and personal difficulties.  The mid‑terraced house which he owned on a mortgage in Corby and where he started the fire had been bought with his partner who had left him a year before for his best friend.  She had stopped paying her share of the mortgage for at least 6 months.  His wages had been halved and he faced imminent redundancy and the eventual repossession of his house.
3.	On 28th September 2008, the night in question, he had returned late from a wedding, where he had been drinking heavily with his current girlfriend.  They had had an argument.  She left for her home nearby.  He started smashing up the cupboards in the kitchen and when she returned and asked him about it he threw her out.  
4.	Just after midnight, as one of his next door neighbours was going to bed, she heard a banging noise from his house, looked out and although she saw nothing the banging noise continued.  After a pause, but while she continued looking, she eventually saw smoke coming from the kitchen back extension of the appellant's house.  Realising that a fire was started, she went to the appellant's neighbour on his other side, where two adults and two teenage children were asleep.  She got them out of the house.  Someone, not the appellant, called the fire brigade.
5.	The appellant, before leaving the house, had set fire to it in four places.  He had set two fires in the living room, one in an arm chair and one in two bean bags.  The other two fires were in the kitchen, on the work tops.  Importantly, the gas hob had been turned on but was not ignited but it caused a buildup of gas which could easily have caused an explosion, likely to cause serious injury or death to the fire service, neighbours, or members of the public or would‑be rescuers.  Although there was no suggestion that accelerants were used, the fires were started by burning paper or cloth.
6.	At around 1.50 am the appellant telephoned his girlfriend and told her that he had set fire to his house.  She returned and found the property on fire with the fire brigade already in attendance.  Thinking that the appellant might still be inside, she tried to enter the property but was stopped by the fire officers, who then used her key to gain entry to search for and rescue the appellant, if he were there, and to tackle the fire.  When the appellant's girlfriend returned home the appellant arrived, gave her his dog and then returned to his own house.  He told the fire officer it was he who had started the fire and then waited for the police.
7.	The fire service termed this a developing fire, which without intervention would have spread to the remainder of  the property and to adjoining properties.  These terraced houses shared a common roof void.  The developing fire took 25 minutes to bring under control.  Had it fully developed, they too would have been put at risk from the possibility of flashover and backdraft.  Serious damage was caused.  If someone had been present, they would have been killed.
8.	When interviewed, the appellant fully admitted starting the fire but said that because of the alcohol he had consumed there were parts of what happened that he could not remember, including the starting of the fire in the kitchen and leaving the gas on.  He said he had started the fires after stewing over his argument with his girlfriend and set the fires on the spur of the moment.
9.	The appellant has no relevant other previous convictions. The pre‑sentence report referred to the emotional strain of the breakup with his former partner and the financial strains that he was under, to which we have referred.  It assessed Mr Masterson as presenting a medium risk of harm to the public.  The likelihood of re‑offending was assessed as low to medium.  He was not likely to re‑offend immediately but should he do so the consequences could be serious.  He did not have a pro criminal attitude, nor a fascination with fires.  His offending behaviour was linked to the disinhibiting effects of alcohol and the way he made decisions.  In the language of the PSR his offending was "clearly linked to his inappropriate thinking skills".
10.	The sentencing judge also had the benefit of a psychiatric report.  This too identified that Mr Masterson's consumption of alcohol was a serious part of his coping with what the psychiatrist described as a chronic adjustment order with depressed mood.  The fire had been set in the context of this alcoholic intoxication, an argument with his partner, low mood and negative emotional responses to the various stresses he faced.  He was more likely to engage in such offending behaviour in the future in similar circumstances and the risk factors, in particular the way he consumed alcohol and approached decision making, needed to be addressed.
11.	In the submissions which form part of the grounds of appeal it is pointed out by Mr Eaton that the sentence imposed by the judge implied a starting point, after a trial, of 8 years and 3 months.  A number of other decisions are referred to in the grounds, which indicate that for reckless arson, in general terms, after a trial, a sentence of around 6 to 7 years is towards the top end.
12.	There are a number of significant features to be borne in mind in the setting sentence here.  Although no one was in the house when the fire was set, it was a mid‑ terraced house with a common roof void and the appellant knew that his neighbours, including children, were likely to be asleep in their homes.  Among the seats of fire was one in the kitchen where the gas taps were on, creating the scope for an unpredictable, serious explosion which could kill the fire service, rescuers or neighbours.  He, although expressing remorse afterwards, did not contact the fire brigade himself and appears not to have told his girlfriend until after someone else had alerted the fire brigade.  The fire was discovered fortuitously through a neighbour being alerted to something odd happening at the house by the banging.  The fire brigade, rescuers, the girlfriend and the neighbours were put at risk.  
13.	But the appellant has no previous convictions for anything like this.  He has no fascination with fires.  He pleaded guilty at the earliest opportunity but he also turned up at the scene and admitted to setting the fire.  No grudge lead to this incident.  Limited weight only, however, can be given to the financial and emotional stresses which he was under.  These are common enough in these offences, and no weight at all can be given to the fact that he was drunk.
14.	Having considered all those factors, we have come to the conclusion that, following a plea of guilty, a sentence of  five‑and‑a‑half years was not just high but manifestly excessive and should be reduced.  We have come to the conclusion that it should be reduced to 4 years less time served on remand.  To that extent this appeal is allowed.