Shaw [2019] EWCA Crim 579
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R v Justin Shaw [2019] EWCA Crim 579 concerned an appeal to the Court of Appeal (Criminal Division) against a sentence of three years’ imprisonment imposed following a plea of guilty to arson being reckless as to whether life is endangered.
On 12th September 2018 in the Crown Court at Winchester, Mr Shaw pleaded guilty to one count of arson being reckless as to whether life is endangered, contrary to section 1(2) and (3) of the Criminal Damage Act 1971. On 15th November 2018 Her Honour Judge Evans sentenced him to three years’ imprisonment. Mr Shaw appealed against that sentence with the leave of the single judge.
The offence took place on 17th July 2018. At around 1.30 p.m. firefighters received a report that a block of flats in Alexandra Road in Farnborough was on fire. The block consisted of two adjoining semi-detached multi-occupancy properties with seven flats in each. When the Fire Service arrived, they noticed Mr Shaw standing on the roof. They used a ladder to bring him down and asked if anybody was inside. He told them “There are bodies everywhere. There’s one alive in the attic and two below.” Visibility inside the property was by now nil. The firefighters made their way through the property and found that the source of the fire was Mr Shaw’s flat. He had barricaded the door to his flat before setting fire inside the property using a lighter and an aerosol on his bedding, then making his way on to the roof via a skylight. The firefighters had to use considerable force to effect entry. Their search revealed that there was nobody else inside either that flat or any other within the property. Mr Shaw demonstrated psychiatric problems at the time, telling a paramedic that he had been chased by Triads. He was taken into police custody. The damage caused by the fire was extensive, believed to be between £50,000 and £100,000. The fire systems were made inoperative, resulting in all the residents of every flat having to move out because it was not safe to stay in the flats without an operative fire alarm. In interview Mr Shaw reported hearing voices. He said that he believed his neighbours were calling him a “paedophile” and telling him that his family would be killed. He had wanted to die from the smoke of the fire.
At the sentencing hearing the judge had both a pre-sentence report and a psychiatric report. The psychiatric report related Mr Shaw’s condition to heavy cannabis use, but in the opinion of the psychiatrist it was then too early to say for definite that his psychosis was a reaction to substance misuse, rather than an episode of schizophrenia. He had drunk a can of beer and smoked cannabis on the day of the offence. The judge referred to the fact that all other occupants were fortunately out, but the fire and the barricading had put firefighters at risk of injury or death. Significant damage had been caused. All the occupants had had to move out because the building was unsafe. She referred to Mr Shaw’s poor mental state on the day and to his suffering from paranoia and delusions. She observed that the offence was aggravated by the use of an accelerant and a lighter. The judge was satisfied that Mr Shaw posed a medium risk to the public and that the dangerousness provisions were not engaged. There was a letter expressing his remorse. His mental state was now stabilised on medication and he was co-operating with Mental Health Services. The judge was referred to the decision in R v Batchelor [2018] EWCA Crim 2506. She concluded that, after trial and before mitigation, the sentence would have been one of seven years’ custody. With mitigation and full discount for the guilty plea, that would be reduced to one of three years. Since a full discount was allowed, it was to be inferred that the notional sentence after trial, taking into account mitigation, would have been four and a half years’ imprisonment.
Mr Hallowes, who appeared for Mr Shaw on appeal as he had at sentencing, contended first that the level of sentence before mitigation and discount was too high, and second that Mr Shaw’s mitigation was insufficiently taken into account. As to the first point, Mr Hallowes submitted that seven years was excessive in circumstances where no one was in the building in the middle of the day, Mr Shaw was not motivated by revenge, he was delusional, and he had said that he wanted to kill himself. As to the second point, Mr Hallowes submitted that the sentence of four and a half years reflected insufficient attention to the very strong mitigation Mr Shaw had: he was suffering from paranoia and delusions; his condition had responded to treatment; he had not intended to hurt anyone; he was remorseful; he had made admissions at the scene; he had no relevant antecedents; and his last offence, committed in 2006, was of a very different kind.
The court noted that Mr Shaw was now aged thirty-four and that there were no current sentencing guidelines for arson offences. There were some in draft, but none yet in force. The court discussed Batchelor, to which the judge had been referred, which was an Attorney General’s Reference. In that case, a man had set a fire outside the door of a flat above after weeks of noise nuisance. A suspended sentence of two years was increased to one of thirty-eight months. The court in Batchelor observed that the seriousness of the offending, with its aggravating features, merited a sentence of six years’ custody, which it reduced to five for mitigation and then to forty months for the guilty plea, with a further reduction of two months for compliance thus far with the conditions of the suspended sentence. The court also discussed the guideline case of Attorney General’s Reference No 68 of 2008 (R v Myrie) [2009] 2 Cr App R(S) 48, where the court emphasised three features increasing the seriousness of an offence: first, setting a fire as a premeditated act of revenge or retribution; second, setting a fire adjacent to or at premises known to be occupied; and third, setting a fire in a block of flats or multi-occupancy houses, particularly at night.
The court observed that with the exception of multi-occupancy, none of the features highlighted in Myrie applied in Mr Shaw’s case. However, the guidance provided by that case was, in the court’s view, limited, given the changes in sentencing over the past years. The Sentencing Council was shortly to produce a guideline in relation to offences of arson. The court emphasised that the damage which Mr Shaw caused was extremely high and his actions resulted in very severe inconvenience to all the other occupants of the flats who had to move out. Before guidelines, every case must be determined on its own facts. In these circumstances, seven years did not seem to the court to be wrong in principle. In any event, the judge took a notional sentence of four and a half years before discount for the guilty plea, which was a very considerable reduction from the point where she started. She had in mind, as she said, that Mr Shaw’s paranoia and delusions were related to heavy cannabis use. In the court’s view, it could not be said that a reduction of this magnitude failed to take sufficient account of Mr Shaw’s mitigation or that the resulting sentence, prior to discount, was excessive, still less manifestly so. As the judge observed, this was a highly dangerous act which created substantial damage and harm to other occupants who all had to be rehoused. The court acknowledged that Mr Hallowes had said everything on Mr Shaw’s behalf that he possibly could, but it could not conclude that the sentence was excessive. In short, the appeal against the three-year sentence for arson being reckless as to whether life is endangered was dismissed.