Case No: 201505867 A3
Neutral Citation Number: [2016] EWCA Crim 1513
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Winchester Crown Court
His Honour Judge Cutler CBE
T20157099
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/10/2016
Before :

LADY JUSTICE SHARP
MR JUSTICE NICOL 
and
MR JUSTICE GARNHAM

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Between :

	R	Appellant	
	- and -		
	Daniel Mark Finnerty	Respondent	

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Katherine Kelleher (instructed by Registrar of Criminal Appeals) for the Appellant
Richard Onslow (instructed by CPS) for the Respondent

Hearing date : Friday 7 October 2016

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Judgment
Mr Justice Nicol : 
1.	This is an appeal against sentence with the leave of the single judge.
2.	The Appellant pleaded guilty at the Crown Court in Winchester to count 1 – simple arson and count 2 – arson reckless as to whether life was endangered.
3.	On 27th November 2015 he was sentenced by HHJ Cutler, the Recorder of Winchester, to 1 year’s detention under s.91 of the Powers of Criminal Courts (Sentencing) Act 2000 for count 1 and to a concurrent extended determinate term of 7 years for count 2. The custodial part of the extended sentence was 4 years and the extension period was 3 years.
4.	Both offences concerned fires at All Saints Church in Fleet, Hampshire. The Appellant was aged 16 at the time of both offences. Count 1 was committed on 16th June 2015. A church warden attended the church at 13.15. Inside the church he smelt smoke. He found that a bible had been placed on the altar and a lit candle had been placed beside it. The pages of the bible were starting to smoulder. The church warden took the bible outside the church and extinguished the fire.  CCTV footage showed someone leaving the church a couple of minutes before the warden had arrived.
5.	Count 2 was far more serious. It took place on 22nd June 2015. At about 17.30 that day a dance class was being held for children aged  between 5 and 6 in the church hall next to the church. The teacher was alerted to the fact that the church, which was very close to the hall, was on fire. The hall was evacuated and the fire brigade was called. The church was ablaze. The roof and windows collapsed. A large crowd gathered, many of whom were upset. Thick black smoke came from the fire which hampered the efforts to control it. The resulting damage was extensive.
6.	The church was a Grade 2 listed building. It was 150 years old and of architectural importance. It was regularly used for weddings, christenings and funerals. Memorials and paintings inside the church were destroyed and cannot be replaced. The cost of clearing up the fire and rebuilding the church have been estimated at £4.5 million. Weddings had been booked in the church for the two following weekends. The emotional loss is also obvious and considerable as a victim impact statement from Rev Mark Hayton, the vicar, spelt out. In a compassionate final paragraph, Rev Hayter added,
“I know nothing about the young man who caused this fire. His family have communicated to us through a local school that they are deeply sorry for what has happened and have informed us that the boy is receiving the help he perhaps needed a long time ago. This is of some comfort to me knowing that the boy is getting help. I think I can speak on behalf of the parish of Fleet on the whole when I say that we harbour no ill feelings towards the boy for what has happened and we have been praying for him and his family since the incident.”
7.	The Appellant was arrested as a result of the CCTV on 23rd June 2015. He was remanded to a secure children’s home.
8.	The Appellant had no previous convictions. In 2014 he had received a caution for possession of a class B drug.
9.	Dr David Ho, a consultant forensic psychiatrist provided a report dated 13th October 2015 and also gave oral evidence at the sentencing hearing. In his view the Appellant had displayed features of Attention Deficit Hyperactivity Disorder (‘ADHD’). He had done so since childhood and these had significantly impacted upon his functioning and well-being. This was likely to have resulted in seriously irresponsible behaviour for which the Appellant had not previously received treatment. His mother had apparently prohibited him from taking the Ritalin which he had been prescribed as a child. He recommended that he receive a hospital order under s.37 of the Mental Health Act 1983.
10.	The Appellant described to Dr Ho how he had been sent to a school for children with special educational needs. His school history had been marked by disruptive behaviour. He left school at 15 with no formal qualifications. He then lived with his girlfriend at his mother’s house, but she disapproved of the arrangement and he moved to live with his father.  He drank and took drugs (cannabis and M-CAT) and, after a few months, his father ejected them as well. For a time he and his girlfriend had lived on the streets. They then separated.
11.	The Appellant gave Dr Ho an account of having been refused a drink of water at the church some weeks before the offences. On 16th June he had been inside the church, remembered the incident, became angry and set fire to the bible in consequence.
12.	On 22nd June he had again gone into the church. He shouted to see if anyone was around, but there was no answer. He had felt an urge to do something. He carried a can of deodorant with him (to mask the smell of cannabis). He sprayed it against a wall and then took a lit candle and set fire to it. He regretted his actions and had no idea that it would cause so much damage.
13.	In Dr Ho’s report he said that the opportunistic and impulsive acts which the offences represented were typical of someone with ADHD and, in the Appellant’s case this was also likely to have been linked with his consumption of illicit substances.
14.	In his oral evidence, Dr Ho repeated his recommendation that a hospital order under s.37 be imposed. He had considered whether this should be combined with a restriction order under s.41 of the Mental Health Act 1983 but concluded that this was not necessary because he did not think that the Appellant would pose a risk of serious harm to the public in the future.
15.	There was also a report from Dr Maria Moldavsky, a consultant child and adolescent psychiatrist. Unlike Dr Ho she is not approved under s.12(2) of the Mental Health Act. Like Dr Ho she also concluded that the Appellant suffered from ADHD. She did not think he was suffering from psychosis or Autistic Spectrum Disorder.  She did not comment on the possibility of a hospital order.
16.	Judge Cutler also had a particularly thoughtful and full pre-sentence report from Anna Harbridge of the Hampshire Youth Offending Team.
17.	She noted that the Appellant had tried to commit suicide on two occasions. He had also reported a recurrent interest in fire. These had included camp fires, setting fire to a bush and using deodorants to set tables and rocks on fire. He recalled lighting toilet paper over the toilet to watch it burn. He recognised that fire could be unpredictable  but believed that fires could be lit in a contained way. Her report was completed a month before the sentence hearing. By the time of the hearing the Appellant had been remanded at a secure children’s home for about four months. Ms Harbridge says that, while this had been difficult for him, he had made the most of his time there. His behaviour had been very good and he was praised for his engagement and progress. He had, while at the home, also been diagnosed with dyslexia and dyspraxia. He was making excellent progress in his school work as a result.
18.	As to assessment of harm, Ms Harbridge considered that the Appellant posed a medium risk of serious harm, where, as in relation to the index offences, the Appellant perceived himself to be the victim of injustice.  She said that the level of risk was medium because, while there were clear indicators of risk, the Appellant was taking steps to address these through engaging with services, his current stability, recognising the risks of fire, recognising some of his risk factors and attempting to tackle some of those issues head on. She said the risk could change to high if certain factors changed such as an unplanned and quick release into the community, poor accommodation provision, lapse into drug use and disengaging with services that offered support around mental health and drug use.  She concluded ‘It is my view based on these assessments, he does not fit the criteria for a public protection sentence, however this is clearly a decision for the court’.
19.	In passing sentence, the Judge accepted that the Appellant did not intend to cause the damage he had done, but what he had done ‘was highly dangerous, highly risky and [the Appellant] just clearly did not think of the consequences’. The children in the dance class had been at severe risk. It was a great mercy that no one had been killed or injured. As it was the damage to the church had been considerable and the loss to the community had been immense.
20.	The judge said that the hospital order recommended by Dr Ho would have required an adjournment and the opinion of the person who would have been the treating doctor. He acknowledged the work that the Appellant had been doing while on remand and the progress he had made. However, the enormity of the offences meant that the Judge considered that there was no alternative but youth detention. There had to be quite some period before he was let out into the community again.
21.	Looking at the position at the present time he considered that there was a significant risk of serious harm.  And that meant he had to impose an extended sentence. He took account of the Appellant’s age, his remorse and his plea of guilty (for which he gave the Appellant full credit). He passed the sentences to which we have referred.
22.	The Single Judge who granted permission to appeal also directed that there should be a report from another forensic psychiatrist. We have since received the report of Dr Church, who is a consultant in forensic and child and adolescent psychiatry.
23.	The Appellant told Dr Church that he had been prescribed Concerta for his ADHD and he described feeling calmer in consequence. Since his detention he had successfully abstained from illegal substances. He denied that he would ever light a fire in a building again.
24.	Dr Church considered the factors tending to increase a future risk of fire setting and factors tending in the other direction. Overall, he said,
“Daniel’s fire setting risk profile appears to be quite different from the sorts of profiles present by other high risk arsonists I have assessed. Despite the very serious, extensive damage caused by Daniel in the index offence, the risks to property and risk of serious harm to others as a result of further fire setting, are in my opinion only moderate. This means that a risk management is required, including functioning fire alarms and fire escapes wherever he is placed, but there is no immediate risk of harm to others.”
25.	Dr Church agreed with the diagnosis of ADHD. He agreed that the Appellant did not currently present with clinical features of Autism Spectrum Disorder or psychosis. He may, however, have features of PTSD. His ADHD did not require treatment in a hospital. It would be best for the Appellant if he could remain at the secure children’s home where he was being held. Transfer to an adult prison or regular YOI would deprive him of the advantages he currently enjoys.
26.	On the Appellant’ behalf Katherine Kelleher makes two submissions. First, the Appellant does not present a significant risk of serious harm in the light of the material which was available to the Judge and which has now been reinforced by Dr Church’s report (She reminds us that ‘serious harm’ for these purposes means death or serious personal injury whether physical or psychological – see CJA 2003 s.224(3)).
27.	Second she submits that an extended period of detention could only be imposed if the custodial term would be at least 4 years – see CJA 2003 s.226B(1)(d). That was indeed the custodial term which the Judge imposed, but, she submits, in the circumstances, such a term was manifestly excessive.
28.	We note that two other possible disposals are not  available.
29.	First, neither Judge Cutler nor we could make a hospital order under s.37 of the Mental Health Act 1983. Such an order can only be made if the Court concludes on the basis of evidence from two doctors that the defendant’s condition is suitable for treatment in hospital – s.37(2). Dr Ho thought that was the right course, but no other doctor does. Additionally, a hospital order can only be made if there is evidence that a specific hospital place would be available within 28 days – s.37(4). There is no such evidence. Consequently neither the Judge nor we can make a hospital order with or without a restriction order under s.41.
30.	In some circumstances the Court can make a hospital and limitation direction under Mental Health Act 1983 s.45A. This is sometimes called a ‘hybrid order’ because it combines elements of imprisonment and hospital treatment. Such an order is not dependent on advance notification that a hospital bed is available. However, it can only be made if the Court is otherwise considering a sentence of ‘imprisonment’ – s.45A(1)(b). Since the Appellant is under 21 he cannot be sentenced to prison  - see Powers of Criminal Courts (Sentencing) Act 2000 s.89. This Court has recently confirmed that a hybrid order cannot be made where the alternative is detention in a Young Offenders Institution as opposed to imprisonment – see Fort  [2014] 2 Cr App R (S) 24 following Attorney-General’s Reference (No, 54 of 2011) [2012] 1 Cr App R (S) 106.
31.	On behalf of the Respondent, Mr Onslow accepted that this was not an example of the worst case of reckless arson. Count 2 had been committed in the late afternoon in June. It was in the hours of daylight when discovery of the fire was the more likely. In addition, the occupied premises were not contiguous, as is sometimes the case (for instance where a fire is started in a block of flats or a terraced house). But the danger to the young children in the dance class was still real. Furthermore the destruction of such a notable building was itself significant.
32.	In granting permission to appeal, the Single Judge contemplated that the Court might wish to hear oral evidence. Dr Church and Dr Ho were both present at the hearing of the appeal and both gave evidence before us.
33.	Dr Church was able to tell us that he had received an oral update report from the secure children’s home where the Appellant is still detained. Since 7th September 2016 he has, apparently, stopped taking the medication  because of its side effects. However, there had been no significant change in his behaviour. He was respectful to staff. There were no adverse reports on him. On the contrary, on one occasion he had helpfully intervened to prevent a member of staff being harmed by another resident. Overall, the Appellant continued to do very well. Dr Church said that there was no change in his assessment of the Appellant’s dangerousness. Dr Church said that in his practice he had had to assess several children and adult fire-setters. It was notable in this case that the index offences were not planned and there was no intention to cause serious harm. That was different from the case of other fire setters whom Dr Church had dealt with. There had been previous episodes of fire setting by this Appellant, but not previously unsafe fire setting. The index offences had been different, but, from a letter which the Appellant had drafted to the vicar, Dr Church considered that the Appellant felt genuine remorse and that was further evidence that the risk of serious personal harm was not significant. Dr Church did not know whether the Appellant had access to matches or lighters in the home, but he would expect him not to do so.
34.	Dr Ho said that the update reported by Dr Church did not change his view. The Appellant would benefit from treatment under the auspices of mental health services. He needed a structured environment which he had in the home where he now resided. With such an environment, it was less important that the Appellant had stopped taking his medication.
35.	We are very grateful to Dr Church and Dr Ho for their assistance. Our role remains that of a court of review of the sentence passed by the Judge.  One of the necessary conditions for the extended sentence which he passed was that he formed the judgment that the Appellant posed a significant risk of serious personal harm or death.  Normally this Court will hesitate long before deciding that such a judgment was not open to the sentencing judge. That is especially so where the Judge in question has the experience and has gained the respect that Judge Cutler has.
36.	Fire setting has obvious dangers. It was very fortunate that far greater harm was not caused and tragic consequences did not follow from the Appellant’s reckless behaviour. But the question for the Judge was whether the future risk of serious personal harm was ‘significant’. Dr Ho and Ms Harbridge recognised that there was a risk, but neither of them thought it was a significant risk.
37.	Their assessments were careful and well reasoned. They could not bind the Judge, but his sentencing remarks do not allow us to see how he came to a different conclusion from them.
38.	The Judge had to make his assessment at the time of the sentencing hearing. By then, as we have said, the Appellant had been on remand for several months. It had given him the structure and support which had previously been lacking. His dyslexia and dyspraxia had been diagnosed and, perhaps for the first time, he was achieving educationally. He was in a different position than when he had set fire to the bible and the church in the previous June.
39.	The evidence of Dr Church and Dr Ho has allowed us to see that the Appellant has continued on that positive trajectory. He appears to have come to realise how foolish and dangerous his previous actions were. That will not bring back the church, but it does diminish the chance of repetition.
40.	In our view this is a case where we must reach the conclusion that the conclusion that there was a significant risk of serious personal harm was not justified in all the circumstances. That being so, the Judge was not entitled to pass an extended sentence.
41.	However, we also consider Ms Kelleher’s second submission that the Judge was not entitled to pass a custodial term of 4 years. That is important because, as we have said, unless the Judge was entitled to reach that view, an extended sentence could not have been passed.
42.	There are no sentencing guidelines for the arson offences. Both counsel have emphasised to us the fact sensitive nature of sentencing for these offences and particularly where the defendant either intends life to be endangered or is reckless as to whether that is so.
43.	Mr Onslow has referred us to a number of authorities.  None is exactly similar to the present case, but he is entitled to draw out some observations of more general use. In Attorney-General’s Reference no 68 of 2008 (R v Myrie) [2009] 2 Cr App. R. (S) 48 the court said that for arson intentionally endangering life the range would be 8 -10 years following trial ‘and in cases involving reckless arson, we would regard the range as rather below that, but it is apparent to us that the dividing line between the worst cases of reckless arson and the least serious cases of arson with intent to endanger life is a fine one.’
44.	As Mr Onslow acknowledged, this is not one of the worst cases of reckless arson. Thus, for instance, the offence was spontaneous and not pre-planned. It was not committed at night (where the chance of discovery before people are injured is much greater). There was no intention to cause personal harm (as there sometimes is where fire setting is done in revenge). There was no evidence that the Appellant was aware of the presence of the children in the next door building.
45.	Plainly the Judge was entitled to take account of the enormous cost involved in dealing with the fire and repairing the building. The public character of the building and loss to the community which resulted are also aggravating circumstances. In Attorney-General’s Reference No 58 of 2007 [2008] 1 Cr App R (S) 71 a 14 year old had set light to the drama block of a school. Two floors of the block had been destroyed along with the students’ coursework. The cost of the damage was put conservatively at £3 million. Students had to be evacuated from adjoining buildings. Detention for 4 years was substituted for the original sentence of 2 years supervision with conditions. The defendant’s age in that case was lower than the present Appellant. On the other hand he had, despite his age, accumulated at least 4 previous convictions. He continued to offend. He had only pleaded guilty on the day of trial.
46.	Because of the differences between the facts of previous cases, they can only take us so far.  In summary, the aggravating circumstances in this case were the following: the very great costs caused by the second offence; the loss to the congregation and community of a much loved and architecturally valuable building; the grave risks to the children who were in the dance class; the repetition of offences involving fire. The mitigating circumstances were the absence of any intention to cause personal harm, the spontaneous character of both offences which did not (as fire setting often does) involve the assembly of materials to cause the fire, his undiagnosed medical condition and his absence of previous convictions. The Appellant’s age – 16 at the time of the offences, 17 when he came to be sentenced – is of particular importance. It affects the Court’s approach to the different objectives of the sentencing process and the greater focus that has to be given to signs that the offences were affected by immaturity.
47.	Taking all of this into account, our view is that on balance, the Judge was not entitled to regard these as offences which justified a sentence of 6 years after trial or 4 years after credit for plea. This was therefore a second reason why an extended sentence could not be passed.
48.	Accordingly, we will quash the sentence passed on count 2. We would regard about 5 years as the appropriate sentence after a trial. Giving full credit for the plea of guilty we will substitute a concurrent term of 3 ½ years on count 2.
49.	The Appellant is now 18. Ordinarily he would not be able to remain in a secure children’s home at that age. If that usual course were to be followed it would be most unfortunate. As Ms Harbridge had said and as Dr Church and Dr Ho confirmed, the Appellant has benefited enormously from the help that he has received at the home. Moving him to a Young Offenders Institution to serve the balance of his sentence could potentially undo the positive progress that has been made. It is not for us to dictate where he should be detained, but if and to the extent that there is the opportunity for him to remain at the home, we would encourage those responsible for the decision to take that course.
50.	To this extent the appeal is allowed.