Derek Gale [2019] EWCA Crim 1051

In **R v Derek Samuel Gale** [2014] EWCA Crim 1051, the Court of Appeal (Lord Justice Treacy, Mr Justice King, and His Honour Judge Kramer QC sitting as a judge of the CACD) dismissed an appeal against a sentence of seven years’ imprisonment imposed following conviction for arson being reckless as to whether life is endangered.

Mr Gale, aged 29, was convicted after trial in the Crown Court at Maidstone before His Honour Judge MacDonald QC. On 30 March 2013, the appellant had been in a disintegrating relationship with his partner, Donna Gray, with whom he lived in a terraced house in Ramsgate together with their three children, aged five, four and one. Both parties had problems with alcohol and had been drinking on the day in question, the appellant to excess. Following an argument in which his partner gave him an ultimatum that one of them had to leave, the appellant refused to go. He took a lighter and set fire to the corner of the fabric curtains in the front room and then sat down on the sofa, saying words to the effect “You’re not going to get out of here alive”. His partner took the two eldest children into the street. She returned with a neighbour into the smoke-filled house and the neighbour rescued the baby, who was asleep in his cot in an upstairs bedroom. The appellant remained in the front room and had pulled down the curtain rail. Neighbours extinguished the fire, which had spread towards the ceiling, with buckets of water. The appellant left the scene shortly afterwards without attempting to assist his partner or children, going to his parents’ house where he confessed to his father that he had set the fire, claiming falsely it had been for insurance money. He was arrested and confessed in interview.

The appellant had limited previous convictions, including one for criminal damage in 2005. A psychiatric report concluded that he was fit to plead and stand trial and was not suffering from mental illness, although he had a long history of alcohol abuse. The report and evidence at trial identified learning difficulties and low intelligence.

The sentencing judge identified as aggravating features that this was an occupied dwelling containing an adult and three children, one a baby asleep upstairs; the fire had quickly taken hold generating much smoke which might have spread to polystyrene ceiling tiles; the smoke had made the recovery of the baby hazardous, with the neighbour having to use a mobile telephone as a torch to locate the cot; the house was terraced so neighbouring properties and occupants were potentially endangered; the appellant had been drunk and left the scene without assisting his family. The judge acknowledged in mitigation that there was little planning, there had been an effort to tackle the fire by removing the curtains, there was little financial damage, and no one was injured. He regarded the personal mitigation as extremely limited, noting that the appellant knew perfectly well what he was doing and that it was wrong, was not mentally disordered, and had had a difficult childhood but that really was it.

On behalf of the appellant, Miss Luttman did not challenge the aggravating features but sought to emphasise the mitigating factors more fully. She submitted that the fire was short-lived and extinguished by neighbours with buckets of water; the setting of the fire was unsophisticated and not preplanned, with only one point of ignition and no accelerant used; it was done in full view of the partner, enabling her to get out quickly with the two eldest children; no one was hurt or injured save for the appellant suffering minor burns; the financial damage was small; there was an attempt, albeit delayed, to put out the fire; the appellant had now lost his children, who had been taken into care with a view to adoption; he suffered from intellectual and learning difficulties; and his previous convictions were limited. Miss Luttman submitted that with these competing aggravating and mitigating factors, a sentence of seven years after trial fell outside the appropriate bracket for this type of offence.

The Court of Appeal noted that there are no sentencing guidelines for this type of offending, but referred to the guideline remarks in Attorney General’s Reference No 68 of 2008 [2008] EWCA Crim 3188, which stated that the starting point for arson with intent to endanger life is in the range of eight to ten years following trial, and that in cases involving reckless arson the range is “rather below that”, although the dividing line between the worst case of reckless arson and the least serious case of arson with intent is a fine one. The court observed that the sentencing judge had this guidance very much in mind.

Miss Luttman submitted that the seven-year sentence must mean that the judge identified the case as falling at or towards the top of the sentencing bracket and therefore as one of the most serious type of offences within the range, which was too high a categorisation. She referred the court to Attorney General’s Reference No 98 of 2001 (Manzoor Hussain) [2001] EWCA Crim 3068, in which the Court of Appeal indicated that on an initial sentencing exercise in that case, involving two offences of reckless arson, a sentence of at least six years would have been appropriate. She analysed the facts in Hussain in detail, submitting that the appellant’s offending was less serious because Hussain involved two separate fires set in such a way as to prevent the wife and daughter getting out, requiring them to jump from an upstairs window causing injury, with no attempt made by the offender to extinguish the fire. She also referred to Attorney General’s Reference No 5 of 1993 (Peter Hartland) (1994) 15 Cr App R(S) 201, where the court indicated that sentence after plea for reckless arson was in the order of three years, acknowledging that the appellant’s case was more serious. She submitted that the appellant’s case fell somewhere between Hussain and Hartland and the appropriate sentence therefore fell between three and six years.

The Court of Appeal rejected these submissions. Mr Justice King, giving the judgment of the court, held that the fallacy lay in elevating the decision in Hussain to a guideline case which fixed the appropriate sentence for reckless arson on those facts as six years. The court noted that Hussain was an Attorney General’s Reference in which the court was careful to say that the appropriate sentence on an initial sentencing exercise would have been at least six years, emphasising the expression “at least”. Moreover, the offender in Hussain could lay claim to good character, good references, and a particularly significant medical condition, whereas the appellant had no similar claim. The court held that no two cases are the same and that it was not assisted by an over-elaborate and detailed analysis of facts underlying previous decisions.

The court held that there were features in the present case which entitled the sentencing judge to regard this as a serious example of its kind. In particular, the recklessness was directed at a baby asleep upstairs, who was rescued more by good fortune than anything else, having regard to the smoke generated by the fire which the appellant had lit. Moreover, a striking feature of the present case was the total failure of the appellant to seek to assist his endangered family. The court noted that in R v Wheeler [1998] 1 Cr App R(S) 54, referred to in Attorney General’s Reference No 68 of 2008, the Court of Appeal indicated that following a plea of guilty to reckless arson involving setting fire to a cushion on a settee in a dwelling whilst the occupant was asleep in bed, the right sentence would have been one of six years, emphasising that that was after a plea.

In short, the Court of Appeal held that the sentence of seven years’ imprisonment was severe but not manifestly excessive or outside the appropriate bracket for this type of offence, and dismissed the appeal.

AG Ref No. 98 of 2001 [2001] EWCA Crim 3068
Attorney General’s Reference 68 of 2008 (Myrie) [2008] EWCA Crim 3188, [2009] 2 Cr App R (S) 48
Gale [2014] EWCA Crim 1051