Kayleigh Wood [2019] EWCA Crim 1633

**Kayleigh Wood [2019] EWCA Crim 1633** concerned an application by the Solicitor General for leave to refer as unduly lenient a two-year suspended sentence imposed for encouraging or assisting arson with intent to endanger life.

Ms Wood, aged 25, pleaded guilty to an offence of encouraging or assisting the commission of an offence believing that it would be committed, contrary to section 45 of the Serious Crime Act 2007. The offence which she assisted was arson with intent to endanger life, committed by her co-defendant Jack Robinson, who had deliberately set fire to a block of flats at Pennine Court, Macclesfield. Robinson pleaded guilty and was sentenced to an extended sentence totalling 12 years (eight years’ custody with a four-year extension). Ms Wood was sentenced by His Honour Judge Berkson at Chester Crown Court on 4 July 2019 to two years’ imprisonment suspended for 18 months, with 200 hours of unpaid work and a victim surcharge.

Robinson had been in a previous relationship with Katie Burness, who lived in a 15-storey tower block (Pennine Court) housing about 246 people in 92 occupied flats, including vulnerable residents with mobility issues. On 11 to 12 February 2019 Robinson sent Ms Burness a series of threatening text messages, accusing her of infidelity and threatening to kill her and burn her alive. During that same period Robinson sent text messages to Ms Wood, with whom he was then in a relationship, making clear that he was going to set someone’s home on fire. She replied “No you’re not, I’m on my way”. Robinson responded “I am. Leave it Kayleigh” and later “Don’t come, I’m going to kill this kid. Watch”. He then wrote “If you love me you’ll take me to do this”.

At 3.26 am on 12 February Ms Wood’s car was seen at a Shell petrol station, with her driving and Robinson in the passenger seat. Robinson purchased £7 of petrol and a canister, paying with Ms Wood’s card. At about 3.45 am Robinson poured petrol over and around the front entrance communal doors to the flats, set it alight and fled. Ms Wood had driven him to the scene, waited for him and then drove him away. Immediately after setting the fire Robinson sent a text message to Ms Burness telling her to look outside the flat, and at 4.20 am he sent another message telling her she got what was coming to her. Fortunately the fire did not take hold and went out once the fuel was spent.

A fire officer from the Peaks and Plains Housing Department explained that the tower block had a fire alarm system and was cladded in non-combustible material with fire-rated paint on the walls. Damage was caused to the front entrance door and surrounding areas were charred. Had the fire spread beyond the entrance the outcome could have been catastrophic. In interview Ms Wood made admissions as to her involvement but claimed she was acting under threat of physical violence from Robinson. She said she had driven to meet him to calm him down. She drove him to the petrol station where he bought the fuel, although she said she tried to stop him. She drove him to the scene knowing that he was going to set a fire outside the flat, then drove him away to the home of one of his friends. She was confronted with messages on her phone the next day revealing that she was offering to hide him from the police at her home, and she commented that she felt controlled by him but also wanted to be with him. Ms Wood had no previous convictions.

A pre-sentence report noted that Ms Wood had been in a number of abusive relationships and it was her intimate relationship with Robinson that linked her to the offending behaviour. The exact cause of her fixation and attachment when entering into new relationships was unclear. Being a victim of domestic abuse would have been a traumatic experience and while Robinson was not physically violent towards her, he made repeated threats to punch her during the commission of the offence. In her circumstances it was understandable that she may have believed he would carry out these threats, especially considering his erratic and aggressive behaviour. The report noted that her infatuation with Robinson appeared to have underpinned her willingness to comply with his demand, but she did not seek to justify her actions because of the level of coercion Robinson placed on her. She was assessed as a low risk of re-offending and a low risk of causing serious harm in the future. The report noted that she was a single parent to an eight-year-old daughter and her primary concern was for her daughter and the impact of them being separated. Although she confirmed that her mother would be able to care for her daughter, the report observed that custody would have a detrimental effect on Ms Wood and her daughter. Her risk of re-offending and the risk of serious harm could be managed effectively in the community.

Ms Burness declined to provide a victim personal statement. A business impact statement was provided on behalf of Peaks and Plains Housing Department. Immediately following the fire the incident was discussed on social media by residents and local neighbours, emotions were running high and the office received calls from concerned residents of the tower block. At that stage the suspect was unknown and staff had to reassure residents, most of whom were elderly and vulnerable including people with mobility issues. A security firm was hired at extra cost during night-time periods, costing over £1,000 over three nights. Police uniformed patrols were asked to assist in reassuring the community. None of the residents witnessed the fire while it was alight but the impact afterwards was described as huge. If the fire had caught and the building ignited there would have been loss of life and damage to property. A new main door had been installed at a cost of over £1,000.

At the sentencing hearing the prosecution referred the judge to the case of R v Myrie and the suggested starting point of eight to ten years for an offence of arson with intent to endanger life. The prosecution identified that the arson offence was motivated by animosity on the part of Robinson towards Ms Burness and was an act of vengeance. The offence was planned; he had involved Ms Wood. The use of fuel as an accelerant was itself an aggravating feature. The building targeted was substantial and had the potential for a large number of vulnerable victims. Robinson’s antecedent history aggravated the offence: he had 11 previous convictions for 22 offences, including robbery in 2008, 2012 and 2016, and he was on licence in relation to the 2016 robbery at the time of the offence. Alcohol played its part so far as he was concerned. In terms of mitigation, the prosecution observed that the fire did not take hold and damage was limited.

In relation to Ms Wood the prosecution highlighted that a person convicted of an offence contrary to section 45 of the Serious Crime Act 2007 was liable to any penalty for which he or she would be liable on conviction of the anticipated or reference offence. The judge remarked that he was required to “scale down” the sentence depending upon the encouragement and assistance given whilst having “some reference” to the main offence. During the hearing Robinson said to the judge “she was forced to do it”; and Ms Wood relied on his wider coercive behaviour in mitigation. The prosecution observed that Ms Wood had chosen to participate and had chosen to travel to meet Robinson, although he had made it clear to her what he was planning to do. The prosecution accepted that “to a certain degree she was in his thrall” and that “perhaps there were elements that were threatening in relation to Robinson’s behaviour”.

Counsel for Ms Wood, Mr Parry, relied on the pre-sentence report and references from family members. He submitted that her role was limited to assisting Robinson to get to the petrol station to obtain the petrol, to driving him to the scene of the incident and then driving away afterwards. She had initially gone to try and calm Robinson down. At the petrol station Robinson had told her to get out, fill the canister and pay for it. She refused. She was crying and hysterical and continued to plead with him not to do it. Threats were made. There was no actual violence but she was frightened and through that fear she drove him to the address feeling that she had no choice. Ms Wood had, since the incident, sought out Ms Burness to apologise to her for the part she had played in the offending and that apology had been accepted. Counsel observed that Ms Wood had for a number of years suffered with anxiety and depression, and had been receiving counselling. She had been in previous abusive relationships. She came from a close and supportive family. The impact on her daughter of imprisonment would be enormous. The crime was entirely out of character. She set out to try to do the right thing but under pressure became involved to a limited degree and had expressed genuine remorse.

In passing sentence the judge noted that the prosecution had recognised by accepting the plea to count 2 that Ms Wood had not been jointly involved in the arson with intent to endanger life, but nevertheless it was a serious case of assisting in a serious crime. Counsel for Ms Wood acknowledged that it passed the custody threshold. The judge gave full credit to pleas of guilty. Ms Wood was aware of what Robinson was threatening to do and was concerned by it. Nevertheless she drove him to a petrol station, then to the scene and then away again after the offence. Robinson had put at risk the lives of every occupant of the flats. The judge took account of the fact that Ms Wood had no previous convictions and the letters written in support. He noted that in contrast Robinson had a number of previous convictions including robbery with weapons. At the time of the index offence he was on licence for a robbery committed in 2016. He noted that Robinson felt guilty about getting Ms Wood involved and had shown remorse. The judge recognised substantial mitigation in the case of Ms Wood. He took account of both culpability and harm in reaching sentences. He found that Robinson’s crime was aggravated by the fact that he had, in his own words, “forced” Ms Wood to become involved.

In relation to Ms Wood, the judge observed that he must have regard to the main offence in assessing her culpability and the harm caused. It had been accepted by the prosecution she did not have the same motivation as the co-defendant and that she was somewhat in his thrall at the time. The judge also had regard to the impact of any sentence upon Ms Wood’s young child for whom she was the primary carer. The judge then passed the extended sentence of imprisonment on Robinson. In relation to Ms Wood the judge observed that her offending crossed the custody threshold “by some margin”, particularly in view of the serious nature of Robinson’s crime. Having taken account of the mitigation, the appropriate custodial term after a trial would have been a term of three years. That was reduced by one-third to reflect the plea of guilty. Due to her exceptional mitigation and the significant impact on others by an immediate sentence the judge suspended the sentence for a period of 18 months. He attached a community order of 12 months with an order that she carry out 200 hours of unpaid work.

For the Solicitor General, Mr Lloyd drew attention to the aggravating features of Robinson’s crime: it was an act of vengeance; preplanned; fuel was used as an accelerant; the property was targeted and was substantial; the premises were occupied at the time and the crime endangered a large number of victims; he had involved Ms Wood; his conduct was affected by substance misuse; he had a bad antecedent history and he was on licence at the time. Mr Lloyd submitted that the serious nature and characteristics of the reference offence (arson with intent) made the encouraging or assisting offence more serious. Against this it was acknowledged that there was substantial mitigation: a degree of coercion falling short of duress, previous good character, her remorse, the impact of an immediate sentence of custody on her eight-year-old daughter for whom she was the primary carer.

The Solicitor General referred the court to a number of authorities on sentencing for the offence of arson with intent: Attorney General’s Reference No 68 of 2008 (R v Myrie) [2009] Cr App R(S) 48; R v Trickett [2016] EWCA Crim 1604; R v Young [2016] EWCA Crim 678 and R v McKay [2018] 1 Cr App R(S) 26. Mr Lloyd submitted that the offence of encouraging or assisting, contrary to section 45 of the 2007 Act, carried by reason of section 58(3) the same maximum sentence as the anticipated or reference offence. It was for this reason that the court in a number of cases had said that it was relevant to consider the potential scale of the anticipated or reference offence: Watling (Mark) [2013] 2 Cr App R(S) 37 at paragraph 13; R v Hall [2013] EWCA Crim 2499 at paragraph 29 and R v Woodford (Anthony) [2014] 1 Cr App R(S) 32, at paragraphs 12 to 13.

Mr Lloyd submitted that the sentence imposed on Ms Wood was unduly lenient. The index offence of arson with intent was a preplanned act of vengeance by Robinson knowingly assisted by Ms Wood. A fire was started at the entrance to a large residential block which housed a number of vulnerable people. Although it did not catch or spread, the consequences of a fire could have been catastrophic. Significant custodial sentences were required in relation to both Robinson and Ms Wood. As the authorities indicated the judge was required to have regard to any guidance in relation to the reference offence (in this case the index offence of arson with intent). Robinson’s starting point was identified as 12 years’ imprisonment had there been a trial. However, the judge did not appear to have any regard to the relevant guidance (Myrie) in considering Ms Wood’s sentence, nor any regard to Robinson’s identified starting point of 12 years’ imprisonment. He ought to have considered the sentence Ms Wood might have received had she been convicted of the index offence herself. Given the nature of the building and the other circumstances, he should have identified as a starting point a sentence in the region of at least nine years’ imprisonment. The sentence would then have had to be reduced to reflect Ms Wood’s mitigation which of course included a degree of coercion, previous good character and the fact that she was the primary carer for her eight-year-old daughter. The sentence would then also fall to be adjusted by virtue of the fact that she was convicted of the offence of encouraging and assisting as opposed to the reference offence of arson with intent. Taking all these matters into account, the judge ought to have arrived at an overall sentence of no less than six years’ imprisonment and, with full credit for plea, the sentence ought to have been no less than four years’ imprisonment.

For Ms Wood, Mr Parry submitted that the judge plainly had in mind the sentence for the reference offence, as was clear from the discussion during the sentencing hearing. He noted that Robinson’s sentence of eight years had not been referenced, and pointed to the distinction between Robinson’s case and that of Ms Wood. The offending by Robinson was very much more serious, and this was properly reflected in the different sentences. He drew attention to the fact that Ms Wood was pressurised by Robinson, that she was of good character, she had been isolated and it was an abusive relationship. There was her remorse, she was in employment and she cared for her young daughter. These matters were strong personal mitigation and bore materially on

Trickett [2016] EWCA Crim 1604
O’Brien [2016] EWCA Crim 678
R v McKay [2018] 1 Cr App R(S) 26
Hall, Walsh and Lawrence [2013] EWCA Crim 2499

Richard Acari [2020] EWCA Crim 1489