Jared Mustoe [2019] EWCA Crim 1182

In R v Jared Bartley Jones Mustoe [2019] EWCA Crim 1182 the Court of Appeal reduced a sentence of four years and eight months’ imprisonment imposed for arson being reckless as to whether life is endangered to one of 40 months’ imprisonment.

The appellant pleaded guilty on 4 January 2019 in the Crown Court at Mold to an offence of arson being reckless as to whether life is endangered, contrary to section 1(2) and (3) of the Criminal Damage Act 1971. He was sentenced on 18 March 2019 by His Honour Judge Hale to four years and eight months’ imprisonment. He appealed by leave of the single judge.

The appellant had been drinking through the night at the home of Mr Davies, a neighbour in Shotton, where Mrs Davies and four children were upstairs. Towards morning the appellant made remarks about the Davies’ 18-year-old daughter Jasmine which the family considered inappropriate. A disagreement followed and the appellant was asked to leave. Around 8am on Saturday 1 December 2018, the appellant returned to his own house nearby, then some ten minutes later emptied a small amount of petrol into a glass jar or bottle, lit it and threw it at the Davies property. He admitted he was angry and resentful and wanted to frighten the family but not cause harm. The Davies family heard a bang and saw flames at the front of their house. Mr Davies and Jasmine’s partner extinguished the fire by patting the flames with their hands and feet before the Fire Brigade arrived. The fire had damaged the outside of the ground floor bay window. The appellant admitted what he had done immediately upon arrest.

The appellant was 27 and of previous good character. He was an isolated man with few friends who had suffered from anxiety and depression since his teenage years. After his mother became ill in late 2016 and died in 2017, and his long-term relationship ended, his mental health deteriorated and he began drinking heavily. A psychiatric report by Dr Basa confirmed the appellant met the diagnostic criteria for dysthymia and generalised anxiety disorder. The doctor found no evidence of pathological fire-setting and considered the appellant’s actions were impulsive and not planned, though the use of petrol as an accelerant increased the risk of serious harm. He reported regretting his actions immediately. The pre-sentence report assessed the appellant as statistically low risk of reoffending given his age and lack of previous convictions, but identified dynamic risk factors including reckless alcohol use, mental health issues, conflict resolution difficulties and low self-esteem. The probation officer assessed him as high risk of future harm if he found himself in a similar situation, especially when intoxicated.

The judge approached sentence without reference to draft sentencing guidelines, as none had been finalised for this type of offending. He assessed the appellant’s culpability as high because he deliberately went home and obtained an accelerant, but harm as only moderate. He took a starting point after trial of seven years and applied full credit for the guilty plea. The judge did not consider a restraining order necessary.

The ground of appeal granted by the single judge was that the starting point was too high for the specific facts of the case. Counsel cited authorities including R v Thompson [2013] EWCA Crim 740 and Attorney General’s Reference No 56 of 2015 [2015] EWCA Crim 1442, though the court noted these were not guideline authorities and that Attorney General’s references were unhelpful as they by definition involved sentences arguably too lenient.

The court held that the case had to be approached on its facts. A critical aspect was that although accelerant was used, the offence was not long-planned or carefully conceived, and the quantity of accelerant was very small, as evidenced by the very limited damage to the premises and the ease with which the fire was extinguished before the Fire Brigade attended. The court agreed the starting point was too high. The appropriate starting point for this offending was five and a half years’ custody. The personal mitigation, including the appellant’s mental health difficulties, lack of previous convictions and isolated circumstances, properly reduced that to five years. Thereafter, full credit for the early guilty plea and early admission meant the appropriate sentence was 40 months’ imprisonment. The court quashed the sentence imposed below and substituted a term of 40 months’ imprisonment. In short, the Court of Appeal allowed the appeal and reduced the sentence to 40 months on the basis that the starting point adopted by the judge was too high given the limited quantity of accelerant used and the unplanned, impulsive nature of the offence.

R v Thompson [2013] EWCA Crim 740
AG Ref No. 56 of 2015 [2015] EWCA Crim 1442