General sentencing issues

Out-of-character arson: Aggravating factors vs motivational mitigation

Though B., who occupied one of a block of six flats, together with his wife and three young children, had been on friendly terms with the occupants of the flat above, a man and his teenage daughter, he had become increasingly exasperated and stressed by the noise coming from the upstairs flat over a period of several weeks, particularly when the daughter frequently entertained visitors and played loud music. This had affected family life, particularly at bedtime and when he was working shifts and had to get up at 3.00 to leave for work at 4.00. He had complained about this without much success. One Friday evening when the daughter was greeting arriving friends she heard B. threatening to ‘fire-bomb’ her flat. On the following evening when she was dancing with friends to ‘quite loud’ music, she heard the communal fire alarm and found that her front door was on fire. This had been caused by B., using white spirit as accelerant. She and her companions were able to leave the building via the fire escape and she then returned to put out the fire with an extinguisher. In addition to the heavily damaged front door the daughter and her father had sustained the loss of many clothes affected by smoke damage and their flat had required extensive redecorating.

Though he had initially given a ‘no comment’ interview, B. eventually pleaded guilty at Crown Court to a single count of arson, being reckless as to whether life would be endangered. Aged 39, he had no prior convictions but had twice been cautioned 15 to 16 years previously, for criminal damage and possession of cannabis. Following adjournment for a PSR and a psychiatric report, the probation officer relayed B.’s account that he had ‘lost his mind as a result of chronic sleep deprivation’. He claimed to have only a hazy recollection of the incident but thought his motivation had been only to create smoke, hoping that this would encourage the daughter above to take his complaints seriously. He claimed to have been surprised when the white spirit caught fire He had tried to put the fire out with his foot and, when unable to do so, had activated the fire alarm before returning to his own flat and leaving with his family. The PSR considered B.’s actions to be completely out of character based on his lack of antecedents. He had expressed deep regret, and his remorse was considered genuine. He said he had felt suicidal since the incident as a result of ‘the mess he has made’. He was assessed to pose a low risk of re-offending. The psychiatrist found no evidence that the arson was linked to any mental illness and suggested that B. had ‘likely suffered from adjustment disorder with depressive symptoms or a mild depressive episode triggered by increased stress as a result of shift work pattern and intermittent noise from his neighbour over a two month period’. B. reported that he was now ‘back to his usual self’.

He was sentenced to two years’ imprisonment, suspended for two years, with a 20-day rehabilitation activity requirement and a requirement to perform 200 hours of unpaid work (an SSO). The judge had considered him as a hard-working person of essentially good character, observing that he had been subjected to a barrage of noise from the flat above over a period of weeks and had ‘simply snapped’. Though he had made a ‘massive, massive mistake’, behaving in a way that was wholly out of character, he now realised how dangerous his actions had been. Accordingly, the judge opted to take ‘an exceptional course’.

On reference by the Attorney General on grounds of undue leniency, given several offence-centred aggravating factors, the Court of Appeal observed that the circumstances of, and therefore the appropriate sentences for, this particular type of offence may vary considerably. However, previous appeal judgments had emphasised three features that increase offence seriousness: setting a fire as a premeditated act of revenge or retribution; setting a fire adjacent to or at premises which are known to be occupied at the time; setting a fire in a block of flats or houses of multiple occupation, particularly at night, posing risk of the fire spreading to adjoining properties. These were all features of the present case. The Court recognised that ‘antisocial behaviour and particularly loud continuous noise and vibration from neighbouring flats or houses can be highly oppressive and sometimes intolerably so’ and that ‘the selfishness of neighbours may come to dominate others’ lives so as to exclude any real enjoyment of their homes’. Here, B. had ‘come to the end of his tether’ and wanted to teach the neighbours a lesson. However, there were ‘ways in which repeated antisocial behaviour can be addressed lawfully and it is the duty of those charged to receive complaints about neighbours to take them seriously and act upon them appropriately’.

A term of two years had been unduly lenient. The seriousness of the offence, with aggravating features indicating a high degree of culpability, warranted a sentence of around six years. However, in light of the background to the offending and the considerable mitigation available to B., that starting point could properly have been reduced to a term of five years before full credit for plea, indicating a term of 40 months. Taking into account that B. had been complying with the SSO since it was passed, the Court substituted a term of 38 months’ immediate imprisonment.

R v BATCHELOR, [2019] 1 Cr App R(S) 32.

Worrying pattern of carrying weapons: Applying guideline

Having been arrested as one of those travelling in a car that was stopped by firearms officers and having initially given a false name, W. indicated when being searched at a police station that he had a lock-knife hidden in his underwear and stated he had been carrying it for protection as people had tried to shoot him in the past. He subsequently pleaded guilty at magistrates’ court to possession of a bladed article in a public place (CJA 1988 s139(1)) and was committed for sentence. Aged 32, W. had previous convictions for offences including robbery (2003), possession of heroin with intent to supply and having an article with a blade (2006) and robbery and possession of an imitation firearm (2009), on that occasion incurring a total sentence of 63 months’ imprisonment. The Crown Court judge determined that under the relevant Guideline (2018) the appropriate starting point (following contested trial) was six months’ custody with a range between three and 12 months (regarding the offence as coming within category A for culpability and category 2 for harm). However, the judge considered that W.’s antecedents disclosed a worrying pattern of carrying weapons, including a lethal one. Though there had been a gap in his offending since his release from custody in 2012, that pattern of offending was a serious aggravating factor of his present offending, justifying a custodial term outside the category range. On the basis that 18 months would have been required if trial had been contested, W. received 12 months to reflect plea.

On appeal against sentence it was argued on his behalf that the judge had been in error in determining that the offence justified departure from the category range; had failed to take sufficient account of his mitigating circumstances (the significant recent gap in his criminal history and the offer of a place on a university course); and should have suspended the custodial term. The Court of Appeal began by observing that because of his antecedents W. was subject to the minimum sentencing provisions of CJA 1988 s139(6A)–(6G) so that in the absence of circumstances relating either to the previous offences, the present offence or the offender that would make it unjust to impose the minimum sentence, the sentencer had been obliged to impose a sentence of at least six months’ imprisonment. The Appeal Court considered that reference to ‘imprisonment’ under the minimum sentencing provisions meant a term of immediate imprisonment. In W.’s case there was nothing relating to his previous offences or the present one which would make it unjust to impose the minimum term. Further, the personal mitigation did not give sufficient grounds for determining that imposition of the minimum term would be unjust. However, though the judge had been entirely correct in treating W.’s antecedents as a serious aggravating factor, that consideration did not justify departing from the Guideline’s category range. Accordingly, a term of eight months’ imprisonment was substituted.

R v WHYTE, [2019] 1 Cr App R(S) 35.

Supplying and sharing Class A drug with police officer

Having used cocaine increasingly over a period of years, W. began sourcing the drug in sufficient quantity from street dealers (including his co-accused P.) to satisfy his own use and to pass on to friends and acquaintances at cost, making no financial gain. This occurred over a three-year period on some 40 occasions. His circle included J., a serving police officer, who he supplied at J.’s request, and they would share recreational use of the drug together as mates; J. in turn would pass cocaine on to his girlfriend, also a serving officer. J. and his partner had attended W.’s wedding. Following his arrest W. had sought professional help to address his habit. Following a prompt guilty plea to an offence of being concerned in making offers to supply cocaine, he was sentenced to two years’ imprisonment, with P. incurring a 38-month term. The judge had determined that W. fell within Category 4 of the Guideline relating to drug offending (2012), having played ‘a significant role’ as a conduit in the supply chain, thus indicating a starting point (following contested trial) of 42 months with a range between two to five years. In the judge’s view his offending had been aggravated by the length of time during which he had offended and by supplying drugs to a serving police officer.

Now aged 36, W. had one previous conviction, for battery in 2012, and two cautions: one for battery and one for being drunk and disorderly. The judge had opted to treat him as effectively of previous good character. A PSR relayed W.’s sense that he had let his wife and family down and now realised the seriousness of his position. His remorse appeared genuine; he had taken steps to deal with his drug problem and, other than one relapse, he was making positive progress. His employer had written to the court, speaking highly of him, and a letter from W.’s wife (who was pregnant with their second child) expressed fear that if he lost his job the family home would cease to be affordable. By the time of W.’s appeal against sentence she had had to move out and rent a cheaper address.

By reference to the Guideline the Court of Appeal considered that W.’s offending fell ‘more neatly’ into the category of ‘lesser role’* rather than ‘significant role’, thus indicating a starting point of 18 months with a range between a high level community order and 36 months’ imprisonment. Though the period over which W. had supplied drugs was an aggravating feature his supply to J. had not been. The identity of a person to whom drugs are supplied is clearly capable of being an aggravating factor; for example, where vulnerable individuals or children are targeted. ‘Similarly, corrupting a recipient of drugs would be an aggravating feature and it is not difficult to imagine circumstances in which supplying a police officer with drugs could properly be regarded as an aggravating feature’, for example where the aim had been to gain some hold over the officer or to secure some advantage within the criminal justice system through compromising the officer. None of those circumstances applied here; ‘these two men were friends’. The aggravating and mitigating features balanced each other out, thus taking the matter back to an 18-month starting point. Taking account of plea, a term of 12 months’ immediate imprisonment was substituted.

R v WADE, [2019] 1 Cr App R(S) 31.

*The Guideline interprets ‘lesser role’ to apply in the following circumstances: Where the offender performs a limited function under direction; engaged by pressure, coercion, intimidation; involvement through naivety or exploitation. No influence on those above in a chain; very little, if any, awareness or understanding of the scale of operation. ‘If own operation, absence of any financial gain, for example joint purchase for no profit or sharing minimal quantity between peers on non-commercial basis.’

Vindictive misuse of tax data: ‘Powerful’ mitigation

As an employee of HM Revenue and Customs, K. had access to HMRC databases containing confidential and personal details of members of the public and taxpayers. She used that access without any legitimate work-related reason to make searches in respect of her husband’s new partner V., passing the information thus gained to a private investigator she had hired who then visited V.’s address posing as a window cleaner and taking photographs which he sent to K. V.’s suspicions having been aroused at the time, the investigator’s visit had caused her a good deal of unease. After V. had subsequently received a series of abusive text messages from K., which she reported to the police, HMRC investigations discovered K.’s significant misuse of work data to view records relating to V., her son, ex-partner and brother. In interview following arrest K. made full admissions and subsequently pleaded guilty to misconduct in a public office and wrongful disclosure of Revenue and Customs information.

Aged 41 at sentence, K. was of previous good character. In post for 15 years, she had been highly regarded at work. A PSR reported that she had been profoundly affected by her husband’s affair with V. and his proposal to marry her. Mother of two children aged 10 and seven, she also acted as carer for her profoundly disabled brother. In the probation officer’s opinion she did not seem fully to understand the seriousness of her offending. Her risk of further offending was extremely low and she did not pose a risk of serious harm. The report proposed a suspended sentence order with an unpaid work requirement.

On K.’s appeal against sentence of four months’ immediate imprisonment on each count, to run concurrently, the Court of Appeal observed that although misconduct in public office tends to result in immediate imprisonment, this was neither a case of obtaining police information to give to criminals nor a case where there was any financial motive. There were powerful reasons in the mitigation to lead to the conclusion that the sentence that was passed could and should have been suspended. Accordingly, terms of four months concurrent on each count, suspended for 12 months, were substituted.

R v KADIRI, [2019] 1 Cr App R(S) 25.

Joint enterprise robbery: Reflecting driver’s lesser culpability

A convenience store was robbed in the late evening close to closing time by two men, one being McG, wearing a disguise and carrying knives. They took £285.00 in cash from a till and left the scene in a car driven by McK, registered in his parents’ name. On investigation it transpired that a woman called P. had been the organising ‘mastermind’ of this joint enterprise robbery, that McG had been its ‘public face’ and that McK had been ‘a late recruit’ who did no more than to act as driver, albeit in the knowledge that a robbery was to be committed. Aged 26 at the time of the crime, McK had a less significant criminal record than his two co-defendants, having incurred a referral order at age 17 for public disorder and fines at age 19 for road traffic offences. He was understood to have a good and supportive background, his parents attending every day of the jury trial; he had accepted his responsibilities to his children and ‘could work hard’, hoping eventually to take over his father’s business. The trial judge viewed the crime as a less sophisticated commercial robbery, albeit with aggravating features, meriting a starting point of five years with a range of between four and eight years. She imposed terms of six years on P. and McK, while McG incurred an extended sentence combining six years with an extension period of three years.

On McK’s appeal against sentence the Court of Appeal accepted that ‘it will not be appropriate in every joint enterprise robbery for the sentencing judge to distinguish between the driver and other participants’. In some cases, the driver’s culpability may be the same as that of the other participants in the robbery; it will all depend on the facts. ‘It may also be appropriate to pass different sentences on participants in a joint enterprise robbery because their criminal records are different.’ In this instance there was a distinction between McK’s and P.’s culpability that should have been reflected in the sentences passed on them. The Court substituted a term of four-and-a-half years’ imprisonment.

R v McKELLAR, [2019] 1 Cr App R(S) 21.

Mobile phone in prison: ‘Stern’ deterrent sentence

Within a week of being remanded in custody in respect of dangerous driving and driving whilst disqualified, T. was in possession of a mobile phone with a video camera facility and internet connection which he used to make videos and photographs of his life in prison which he posted on Facebook and Instagram. He handed over the phone to staff conducting a cell and personal search shortly after he had incurred a 19-month sentence for the driving offences and in due course he was charged with possessing a mobile phone in prison and unauthorised transmission of an image or sound by electronic communication from within a prison. There was no evidence of the phone having been used for any other purpose of a criminal nature. Having been released after serving the 19-month sentence before the mobile phone prosecution had proceeded to trial, T. again drove dangerously while disqualified and subsequently incurred a 22-month term for those further driving offences.

Aged in his late 30s, T. had 50 previous convictions for 106 offences in the preceding 15 years, mainly for road traffic offences, Theft Act offences and criminal damage, but including an offence of taking a mobile phone into a prison, for which he had received six months’ imprisonment in 2013. Having changed his plea to guilty to the further mobile phone offences on the day of trial, he received 16 months for transmission and 10 months concurrent for possession. The judge had stated that he had to impose a sentence to deter others because breach of prison regulations of this nature undermined efforts by staff to keep control and to maintain public confidence in the prison system. Even if prisoners did not use their phones for illicit purposes, these could be misused by others in that way.

On T.’s appeal against sentence on the basis that the term had been manifestly excessive (given that the maximum for this type of offending is 24 months) and would cause him to be separated from his child, who had been born three months beforehand, the Court of Appeal noted that there are no sentencing guidelines for this type of offence and commented that the two year maximum sentence inevitably meant that there was going to be an element of ‘bunching’ – i.e. there is less scope to draw fine distinctions between one offence and another. A stern penalty ‘is to be expected’. Whilst it was regrettable that this meant T.’s longer separation from his child, this recent birth ‘did not mean the sentence was outside the proper range open to the judge’. The appeal was dismissed.

R v TIMMINS, [2019] 1 Cr App R(S) 39.