No: 200904127 A3 
Neutral Citation Number: [2010] EWCA Crim 207
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 
 
Wednesday 13 January 2010 
B E F O R E:

LORD JUSTICE HOOPER 

MR JUSTICE WYN WILLIAMS 
 
RECORDER OF CROYDON
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A 

‑v‑ 

BRETTON
 
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MR S PARHAM appeared on behalf of the Applicant.
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J U D G M E N T
1.	LORD JUSTICE HOOPER:  On 14 May 2009 at Huddersfield Magistrates' Court the defendant pleaded guilty and was committed to the Crown court for sentence under Section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.  
2.	On 17 July 2009 at the Crown Court at Bradford, before His Honour Judge Scott, he was sentenced as follows.  Offence 1: breach of a non‑molestation order, 12 months' imprisonment concurrent. That offence was committed on 14 February 2009.  Offence 2: arson, committed on 12 May 2009, imprisonment for public protection.  Offence 3: breach of an anti‑social behaviour order which was committed on 12 May 2009, the breach being the arson, 18 months' imprisonment concurrent.  A period of two years (less 64 days spent on remand) was specified.  The judge reached that period of two years by saying that the appropriate sentence after trial would have been one of six years, reducing that to four years for the guilty plea and then halving it to two years.  
3.	The appellant had been involved for some five or six years in a relationship ‑ which can properly be described as tempestuous ‑ with the complainant F.  By her, he had a child.  She also has an older child by another man.  On 22 August 2008 she obtained a non‑molestation order against him. On 1 September 2008 the appellant was imprisoned for 12 weeks for assaulting her and a three‑year anti‑social behaviour order was imposed on him forbidding him from contacting her.  
4.	On 14 February 2009 he confronted her on the doorstep of her home (count 1).  At about 6.20 pm on 12 May 2009 (counts 2 and 3) the appellant telephoned her and accused her of having a relationship with another man.  She terminated the call.  He rang back repeatedly and, amongst other things, said, "You're fucked.  I'm going to set your house on fire."  She treated those threats seriously and took her two children to a friend's house.  The appellant arrived at that house a few minutes later and told the owner to fetch F to the door.  He was carrying two small bottles.  He spoke to F and accused her of sleeping with someone else and made threats to her.  She was with one of her children.  The child was very upset by this.  He then said, "Just watch what I do to your car."  He went towards her car, a Vauxhall Vectra, smashed a window with a stone, picked up and threw the bottles through the smashed window and caused the car to set on fire.  The child was hysterical by now.  
5.	The police and fire brigade were called but the car was burned out.  The car was very important to F.  Not only was she a single mother with all the responsibilities that that entails, but she also required regular hospital treatment.  She needed her car to get to hospital, all of which the appellant would have known.  
6.	The appellant has a large number of previous convictions.  At aged 14 he was sentenced to a young offenders institution for an offence of attempted robbery with an imitation firearm.  That is an offence under Schedule 15A of the Criminal Justice Act 2003, as amended, and therefore if the judge decided that IPP was appropriate then it was not necessary to sentence the appellant to a minimum term of two years.  In 2003 the appellant received a detention and training order for an offence of robbery.  There were various offences of assault, battery, criminal damage and offences of that kind; amongst them was a breach of an anti‑social behaviour order.  The offences continued through 2006, 2007, 2008.  
7.	It is important to note that starting in 2007 he was convicted of assault occasioning actual bodily harm on the complainant.  In October 2007 there were two offences of criminal damage involving property of the complainant.  In February 2008 there was another offence of criminal damage involving the complainant and a further offence of criminal damage in August 2008.  In September 2008 there were two offences of battery on the complainant which led to the imposition of the anti‑social behaviour order.  
8.	As the record shows, the appellant finds it extremely difficult ‑ if not almost impossible ‑ to comply with non‑custodial alternatives.  As the record shows, on many occasions he has been called back, having broken the terms of the sentence and has had to be re‑sentenced.  
9.	The pre‑sentence report is a substantial document dated 9 June 2009.  It sets out in detail the background to this offence: 
"Ms F has been the victim of violence from Mr Bretton on numerous previous occasions which led to the installation of panic alarms, CCTV and the imposition of a non‑molestation order.  Having experienced previous violence is likely to increase the victim's vulnerability.  Ms F is additionally vulnerable due to her illness which requires her to be on a dialysis machine daily.  This fact is likely to significantly add to her distress, as well as coping with her illness and raising her children she has been subjected to a pattern of violence and harassment.  The victim's statements describe her and their children as being very frightened during these offences, and in fact in general.  As well as the financial loss, loss of her car would impact on her ability to manage on a day to day basis, especially due to her illness.  There is also likely to have been significant emotional distress to all who witnessed this incident, not to mention the risk Mr Bretton was placing others in.  Although with hindsight Mr Bretton is able to identify the impact of his behaviour on the victim, their children and other people present, it is clear he did not consider this at the time, and despite being aware of the effect has, in fact, demonstrated a pattern of repeating violent and aggressive behaviour towards the victim.
Mr Bretton told me he was angry with the victim as she had been 'cheating on me'.  He said he was angry and says he was grieving for his sister who died in December 2008.  He said the victim knows which buttons to push and winds him up, and said he was drinking heavily which he also says he feels contributed towards his behaviour.  I note from Probation records that other than the death of his sister, an almost identical explanation was given for his behaviour at the time of his last pre‑sentence report in August 2008.  This is clear evidence of victim blaming and an attempt to justify his offences.  It also appears he has not progressed since August last year in terms of developing his understanding of the motivation for his offending or taken any real steps towards changing his behaviour.  Having argued with the victim he went out of his way to go to the victim's location, evidencing pre‑meditation, although he claims he set fire to the car on the spur of the moment and denies this was planned.  It is clear that Mr Bretton has significant deficits with regards to his ability to recognise and resolve problems, such as his problematic alcohol use, his difficulties with his emotional well being/mental health, his poor anger management and his attitudes towards the victim and their relationship.  It is essential that he fully engages in work to address these areas if he is to reduce his risk of further similar offending.
During interview Mr Bretton told me he was 'horrified' by his offence of arson and that he was sorry for what he had done.  He also demonstrated a good understanding of the impact of these offences on his partner, children and witnesses.  It is my assessment that this remorse was genuine and that he accepts the harm his behaviour causes.  However, as stated above, Mr Bretton did attempt to attribute blame on his partner for winding him up, and claimed he had a 'black out', suggesting he was not in control of his behaviour.  Although alcohol is certainly likely to have acted as a disinhibitor, the underlying reasons for his behaviour remain present and as such it is my assessment that Mr Bretton is fully culpable for his actions."
10.	The probation officer sets out in detail the previous convictions of which the appellant has been convicted: 
"The current offences form part of an entrenched pattern of offending behaviour beginning in 2001 when the defendant was 13 years old.  They also take place within the context of a violent and abusive relationship and, based on Police records, what appears to be a pattern of continued harassment of the victim since their relationship ended.  He has 6 previous convictions for criminal damage, 9 convictions for assault (victims include Police, the current victim and her daughter), two convictions for robbery, as well as offences of theft, driving offences, burglary, threatening behaviour, possession of offensive weapon, breaches of community orders and breaches of a previous ASBO.  The current offence of arson also represents an escalation in the seriousness of his offending.  Records indicate Mr Bretton has a poor history of compliance and engagement with community orders and although he tells me he wants to get help to address his difficulties and his offending his previous lack of engagement raises concerns about the extent to which he would comply were he made subject to community supervision again.  He is currently assessed as presenting a high risk of re‑offending." 
11.	At page 6 the probation officer examines the long history of drugs and alcohol abuse.  For example, he drinks, so he told the probation officer, on average 350 units a week.  She discusses attempts he has made in the past to deal with the issue of his alcoholism.  She points out that there are concerns about his level of motivation to stop drinking.  That is consistent with the history of previous convictions: non‑custodial opportunities being given to the appellant to put his life in order followed by non‑compliance.  At page 7 the officer points out that the appellant told her he would murder anyone who hurt his ex‑partner or daughter.  On the same page there is reference also to the fact that he would most probably kill a particular individual.  The probation officer reaches the conclusion that he presented a high risk of harm to the victim of this offence and to the public at large.  
12.	It is now accepted that the appellant meets the criteria of dangerousness.  The only issue is whether the appropriate sentence is one of IPP or an extended sentence and whether the notional term as too long.  The judge took the view that he was a dangerous man and presented a significant risk of serious harm, particularly to the complainant, and set a notional determinate sentence of four years, taking account of the plea.  
13.	In considering whether an extended sentence would be an alternative to a sentence of imprisonment for public protection, we remind ourselves that this appellant would have to be released halfway through the appropriate determinate term.  In our view, on the facts as known to us and to the sentencing judge, it would not be safe to release him at that stage even under significant conditions which would be imposed upon his release.  In our view the only possible sentence in this case is one of IPP.  
14.	In our view the notional term should be one of three years, taking into account the nature of the offence and the plea.  We therefore set the minimum term as one‑and‑a‑half years less the 64 days spent on remand.