Kayleigh Wood [2019] EWCA Crim 1633

The offender pleaded guilty to an offence of encouraging or assisting the commission of an offence, believing it would be committed contrary to s45 of the Serious Crime Act 2007. She was sentenced to 2 years’ imprisonment suspended for 18 months with 200 hours of unpaid work. The Solicitor General sought leave to refer the sentence as unduly lenient.

The offence which the offender had encouraged or assisted was arson with intent to endanger life. A co-accused, Robinson, pleaded guilty to that offence and was sentenced to a 12-year extended sentence. That sentence was not subject to a reference.

Robinson had been in a relationship with a lady who lived in a block of flats. The 246 residents of the block included some with mobility issues and vulnerable people. Robinson sent messages to his former partner threatening to set fire to the flats and threatening to kill her and burn her alive. He subsequently set fire to petrol he had thrown around the communal entrance to the flats.

The offender drove Robinson to the scene, waited for him and drove him away. Fortunately, the fire did not take hold and went out. The offender said in interview that she was acting under threat from Robinson. She drove to meet him with a view to calming him down. She drove him to a garage where he bought the fuel, and she drove him to the flats knowing that he was going to set a fire and drove him away to a friend’s house. Messages on her phone revealed she had offered to hide him from the police. She said she felt controlled by him but wanted to be with him; she had no previous convictions.

The author of the pre-sentence report noted she was infatuated with Robinson, and it appeared to underpin her willingness to comply with his demand. She was a single parent to an 8-year old girl, and there was concern for her and the impact of any separation.

Robinson said to the judge “she was forced to do it”, and the offender relied on his wider coercive behaviour in mitigation. It was said on her behalf that she had been crying and hysterical, pleading with Robinson not to do it.

The sentence for assisting an offender must bear a relationship to the sentence for the offence which was assisted or encouraged. Many of the aggravating features (previous offences, substance misuse, offending on licence) did not apply to the offender though.

Held: the seriousness of the offence under s45 of the Serious Crime Act 2007 will depend on the seriousness or potential scale of the anticipated or reference offence. Where the offending is charged under s45, the essential element of the offence is that the offender believed the full offence would be committed, and that his or her action would encourage or assist its commission. The Court was satisfied that the judge did have regard to the case of Myrie. The seriousness and potential scale of the reference offence is only part of the enquiry; it is important also to assess the degree of encouragement or assistance. This is what the judge meant when he referred to “scaling down” the sentence depending on the degree of assistance or encouragement.

In the present case, there was assistance, much of it unwilling but little, if any, encouragement. The offender should not have assisted Robinson and did commit a serious crime which fully justified a custodial sentence. The Solicitor General’s submission, however, was not accepted. The judge carefully reflected on his sentence, and his approach both accorded with principle and resulted in a just and merciful sentence.

Although leave was granted, the Court declined to interfere with the sentence.