Anthony Walters [2019] EWCA Crim 1406

**R v Anthony Walters** [2019] EWCA Crim 1406 concerned an appeal against the length of an extended sentence imposed following conviction for arson with intent to endanger life, which the Court of Appeal dismissed.

Mr Walters, aged 34 and of effective good character save for a caution for criminal damage in 2008, was tried before His Honour Judge Bayliss QC and a jury at Leeds Crown Court in July 2018. On 5 July 2018 the jury acquitted him of three counts of attempted murder but convicted him of arson with intent to endanger life. On 10 August 2018 he was sentenced to an extended sentence of 20 years, comprising a custodial term of 15 years and an extension period of five years. A restraining order was also imposed under section 5(1) of the Protection from Harassment Act 1997. The single judge granted leave to appeal against sentence limited to the length of the extended sentence.

The offence arose from the breakdown of Mr Walters’s relationship with his partner of seven years, Katie Brady, in September 2017. The couple had a son aged five. Mr Walters was distraught at the prospect of separation and blamed Ms Brady’s long-standing friend, Nicola Haith, for the break-up. Ms Haith had two children: a daughter, A, then in her early teens, and a son, B, aged five. Mr Walters sent abusive messages to Ms Haith, Ms Brady, A and others, accusing Ms Haith of poisoning Ms Brady against him, calling her a cancer in the family, a slut unworthy of life, and suggesting her children were unsafe in her care. The messages escalated in frequency and venom into January 2018. Both Ms Haith and A blocked Mr Walters on their phones and social media, but in his mind Ms Haith remained the obstacle to his family reuniting.

On 23 January 2018 Mr Walters bought liquid petroleum distillate accelerant from a shop near his home in Doncaster. He arranged a false alibi with a friend, Richard Jones, who was to say that Mr Walters had spent the night on his sofa. At about 10.30 pm Mr Walters boarded a train from Doncaster to Leeds wearing dark clothing, a hooded top, gloves and a backpack containing the accelerant. CCTV footage from Leeds station showed him lingering as the hour grew late until he approached a taxi. He instructed the driver to take him to the area where Ms Haith and her children lived, having previously visited their home as a friend before the split.

Between 12.15 and 12.30 am Mr Walters was dropped off a short walk from Ms Haith’s address. He told the driver he would need a lift later and was given a card. CCTV from nearby houses showed him walking towards the address, in one clip visibly carrying the bottle of accelerant. At around 1.20 am he poured accelerant through the letterbox of the front door and set fire to it, then walked away.

Ms Haith and her children were asleep inside, as Mr Walters knew they would be. Ms Haith was woken by the fire alarm. She left her first-floor bedroom and saw an orange glow at the bottom of the stairs, realising from the noise and smell that there was a fire. B woke and his mother sent him upstairs to his sister’s attic bedroom. The three huddled there whilst Ms Haith called the fire brigade, which told her to block the door and open a window if possible. The attic window could not be opened or smashed and smoke quickly entered the room. Very soon all three could not see for the smoke and were struggling to breathe.

When the fire brigade arrived within minutes, firefighters saw flames coming from the front door and the porch engulfed. Knowing occupants were inside, they did not wait for the heat to subside as would be usual practice but entered the property in zero visibility, feeling their way towards the bedrooms. The entire hallway was alight. Firefighter Shabir Khan knocked his foot against Ms Haith coughing on the attic floor. His colleague Michael O’Connell found A and lifted her to the Velux window, which Mr Khan had opened for air. B was found curled in a ball on the floor and was also rescued. Mr Khan gave evidence that if the fire brigade had arrived only a couple of minutes later, all three would have been completely overcome by the smoke, leading to unconsciousness and death. All three required treatment for smoke inhalation. Ms Haith’s carboxyhaemoglobin level was 13 per cent, well above the normal three per cent.

Whilst the fire brigade was in attendance, Mr Walters called the taxi driver, falsely claiming he was going to Sheffield, and was picked up and dropped back at Leeds station. Despite his attempts to disguise his appearance, the driver later identified him. Mr Walters travelled back to Doncaster. The effect on Ms Haith’s family was severe. In her victim personal statement Ms Haith explained that her anxiety medication had been increased and any small noise at her front door caused her to remember the fire. B suffered nightmares, became aggressive and was frightened for his family. A also suffered psychologically, including mood swings. Ms Haith initially blamed herself, but investigation soon revealed the fire had been set deliberately. The estimated damage exceeded £5,000 and items of sentimental value were destroyed.

Mr Walters was arrested on 3 February 2018. He denied all knowledge of the arson. In interview he gave the arranged false alibi, which Mr Jones confirmed. The following day, in a second interview, Mr Walters admitted travelling to Leeds and going to Ms Haith’s home but claimed his intention had been to spray graffiti on her door and that he had been deterred by pedestrians and had not set the fire. At trial, however, he admitted setting the fire but claimed his intention had only been to frighten Ms Haith. The jury rejected this and were sure his intention was to endanger life.

Four reports were before the judge: a pre-sentence report, two psychiatric reports and a psychological report. The author of the pre-sentence report recorded that Mr Walters had said he projected his anger over the relationship breakdown onto the wrong person and expressed remorse. The author noted it was highly concerning that Mr Walters had known Ms Haith and her children were likely to be asleep when he set the fire. He was assessed as posing a high risk of serious harm to the victims and to the public generally. Dr Kent, the psychiatrist, concluded Mr Walters did not suffer from serious mental illness or have psychopathic personality traits but had long-standing depression. Dr Kent also noted Mr Walters continued to minimise the offence, had limited problem-solving skills and there was potential risk in any future relationship, although he seemed to have gained some insight and no longer seemed angry with the victim. Dr Wood, the psychologist, concluded Mr Walters was suffering from clinically significant depression at the time of examination and posed a risk of harm to himself. His inability to cope in a highly dysfunctional relationship had, in Dr Wood’s opinion, had an indirect effect on his behaviour at the time of the offence. The prison chaplain provided a testimonial stating Mr Walters continued to carry significant anger towards those he believed had driven him to commit the offence.

In submissions the judge was referred to three cases on sentencing for arson with intent to endanger life: R v Frankham [2007] EWCA Crim 1320; Attorney General’s Reference (No. 68 of 2008) [2008] EWCA Crim 3188, a case involving recklessness rather than intent; and R v Ajmal [2010] EWCA Crim 536. The prosecution submitted that in the first two cases a starting point after trial tended to fall within a range of eight to ten years but that each case was decided on its own facts and all were less grave than Mr Walters’s offence. There was brief reference to the Sentencing Council’s Draft Guideline for arson offences but it was rightly accepted that it was not appropriate for the court to apply it.

In sentencing, the judge rehearsed the facts, analysed the three authorities and concluded that Mr Walters’s culpability could not have been higher. There had been significant planning: he had obtained accelerant, travelled to Leeds and waited deliberately until the early hours when he knew the victims would be asleep, and he left without summoning help. He had also arranged a false alibi in advance. The judge observed that but for the bravery of the firefighters all three victims would have died and that the offence had resulted in intense psychological harm to all three. The judge concluded, on the basis of the reports, the testimonial and his own observations during the trial, that Mr Walters was a very dangerous man who presented a significant risk of serious harm by committing further arson offences. It was against that background that the judge imposed the 20-year extended sentence.

On appeal, Mr Dunn on behalf of Mr Walters submitted that the custodial term of 15 years was too long. He referred the court to three earlier cases in addition to those before the judge: R v Cheeseborough [1982] 4 Cr App R (S) 394; Attorney General’s Reference (No. 66 of 1997) [2001] Cr App R (S) 149; and Attorney General’s References (Nos. 78, 79, 85 of 1998) [2001] Cr App R (S) 371. Mr Dunn emphasised that in each of the Attorney General’s References and in Frankham a starting range of eight to ten years after trial had been identified or confirmed. He submitted that whilst each case turned on its own facts, there was nothing so different in Mr Walters’s case to warrant the sentence imposed, which was more in keeping with a level one attempted murder offence involving psychological harm, which under the relevant guideline has a starting point of 20 years. In oral submissions Mr Dunn sought to revive interest in the Draft Guideline only to the extent of its conclusions on current sentencing levels. He repeated that the facts were very similar to other cases cited and that the sentence was too long when compared with the average. He accepted that footage graphically showed the extent to which the front of the house was ablaze and that only the firefighters’ bravery prevented a far worse outcome. He relied in mitigation on Mr Walters’s lack of previous convictions and his age, and accepted Mr Walters was not entitled to any discount for plea.

The Court of Appeal held that cases of this type are ultimately decided on their own facts. The judge, having presided over the trial, was in the best position to assess the gravity of the offence. The judge was entitled to conclude that culpability could not have been higher. Mr Walters acted in cold blood and out of revenge for a perceived wrong. The offence was carefully planned, including a prearranged false alibi. His intention was to endanger the lives of three people in their own home, two of them children, one only five years old. He waited until the early hours when they would all be asleep, which maximised the danger, and after setting the fire did nothing at the scene to mitigate the effect of his actions. As to harm, the three victims suffered the terror of waking to a fire that had already taken hold and barred their escape. They retreated to the top of the house, where they were overcome by smoke. They were all only a short time from death when they were rescued solely because of the extraordinary bravery of the firefighters, who put their own lives in danger. Unsurprisingly, they suffered intense psychological harm consequent on their ordeal.

The court rejected the submission that a custodial term of 15 years was too close to the sentence appropriate for attempted murder. The comparison, the court held, must be with three attempted murders, where applying level one of the relevant guideline on these facts the ultimate custodial term, if determinate, would inevitably have been well in excess of the starting point of 20 years. The court concluded that although undoubtedly severe, the custodial term imposed by the judge was within the appropriate range, as was the length of the extension period. In short, the appeal against sentence was dismissed.