Neutral Citation Number:
[2005] EWCA Crim 700
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Friday, 4th March 2005
B E F O R E:
LORD JUSTICE KEENE
MRS JUSTICE HALLETT
DAME HEATHER STEEL
- - - - - - -
R E G I N A
-v-
R
L
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR D JEREMY
appeared on behalf of the APPLICANT R
MISS T ROBINSON
appeared on behalf of the APPLICANT L
- - - - - - -
J U D G M E N T
1.
MRS JUSTICE HALLETT: On 19th November 2004 at the Canterbury Crown Court the appellants R, aged 13, and L, aged 12, pleaded guilty to an offence of committing arson being reckless as to whether life was endangered. On 10th December 2004 His Honour Van Der Bijl sentenced R to a sentence of 3 years' detention pursuant to
section 91
of the
Powers of Criminal Court (Sentencing) Act 2000
. He sentenced L to 2 years' detention pursuant to
section 91
of the Powers of the Criminal Court (Sentencing) Act.
2.
The appellants both appeal against sentence by leave of the Single Judge. They appeared at the Crown Court with a co-accused, BC. He pleaded guilty to one count of arson being reckless as to whether life was endangered. He was 15 at the time. He was sentenced to 3 years pursuant to the
Powers of Criminal Court (Sentencing) Act 2000
.
3.
The facts are as follows. At about 1.00 am on 2nd August 2004 a Mr Al-Quahed was sitting on a bench in Queens Street, Ramsgate. He was drunk. He recalled being pestered by a group of teenagers asking him for cigarettes. He also recalled smelling burning and he saw that his clothes were on fire. The incident was in fact captured on video by closed circuit television footage. On that footage R can be seen to place a lighter to the back of Mr Al-Quahed. Shortly after that BC took the lighter from R and put the flame to their victim's pocket. This caused the clothing to catch light. At about the same time L put the flame of his lighter to the neck and hood area at the back of their victim. They continued in their efforts to light their victim's clothing until they were satisfied that it had caught a light. When they are satisfied to that effect they then left. Fortunately, another youth who was in the area, older than them, realised what had happened and came over to assist Mr Al-Quahed and helped him put the fire out. When Mr Al-Quahed removed the top that he was wearing it was found to have a 4 inch by 4 inch hole burnt into it. There was also damage to his undershirt.
4.
The appellants and BC were stopped and arrested nearby. BC initially admitted only being near the victim and said he had just seen the flicking of the lighters. Later he had to admit what the video footage showed. L blamed BC. He maintained it was an accident. After he was shown the footage he said he had just been trying to "singe" the back of their victim. A transcript of the tape showed that L laughed when he was shown the footage before he was reminded it was a serious matter. After that he described himself as being upset by what he had done.
5.
R denied setting fire to the victim. He said: "I only did it for a bit but it never caught fire." He thought he may have been the first one to attempt to light Mr Al-Quahed. He said he did not think he had tried to put him out as he was not near him at the time. He was shown CCTV footage. He said he could not say what had made him do it.
6.
As far as the background of the two young men is concerned, R has a number of previous convictions, six appearances for 10 offences. These include four offences of burglary of dwellings, one of theft from a dwelling, three of detaining a child without lawful authority, one of theft and one of common assault. He has been made subject to an interim care order and a welfare secure accommodation order. He has also been subject to (on our calculations) five supervision orders. At the time that they appeared before the learned judge R was living at accommodation known as Orchard Lodge which is secure accommodation.
7.
L has no previous convictions but one caution for common assault.
8.
A psychiatric report upon R referred to a high risk of serious criminal behaviour from him. The psychiatrist said that he needs "good parental care, involving parental boundaries and encouragement and rewards for positive behaviour". He shows signs of a "number of underlining emotional factors which would have contributed to his previous offending behaviour and these would include parenting difficulties". The psychiatrist said it was imperative that R was made the subject of a full care order as soon as possible.
9.
A pre-sentence report upon him indicated that this was yet another example of a pattern of behaviour where apparently he incites his peers to act in an antisocial and dangerous way. The welfare secure accommodation order was made because he posed a danger to himself and to others. He was described as a difficult child and one who appeared to have developed what were called "avoidance strategies". Addressing his problems was going to be a slow process. He was summarised as a complex young child, with behavioural and social problems of very real concern. He had experienced a difficult family life and it was not surprising, therefore, that he found responding to adults very difficult. The author of the report referred to his record and the escalation in his offending. Whilst in the community, he would, it was thought, continue to offend and posed a high risk to the public. A custodial sentence, it was said, would provide protection of the public and provide him with a clear message that his offending was not acceptable.
10.
As far as L was concerned, a pre-sentence report upon him suggested that, on the basis of his emotional development and his age, he was less culpable than the others who were more criminally entrenched. He is a emotionally vulnerable young boy who functions below his chronological age. At the time of the commission of the offence he had gone missing and was under the influence of cannabis and alcohol. He was described as posing a medium risk of re-offending. The author of the report recommended a supervision order with a package of measures designed to assist L with his problems.
11.
On R's behalf, Mr Jeremy ably argued that the sentence of 3 years, on a plea of guilty, was too long for a child aged 12. He submitted that any 12 year old, let alone this particular 12 year old, would not have appreciated the possibly grave consequences of their action. He certainly would not have appreciated the effect to the extent that an adult would. Mr Jeremy referred us to the reports upon R, indicating what a troubled young man he is and how he has been going through a very troubled phase in his life. He argued that this act (in setting fire to Mr Al-Quahed) was an act of what he called a mischief rather than malice. It was, he said, a spontaneous act, not persisted in, which fortunately caused no serious ill-effects to the victim. He reminded the court, if we needed reminding, that for a child of 12, a year is a very long time. Indeed, this appellant, R, has been in custody in any event for some time. He has been at Orchard Lodge since 4th August 2004. He was sent there by the Southwark Youth Court. A supervision order imposed on 15th September 2004 ended that period of remand. R will not therefore receive any credit for his time in detention for that period.
12.
Mr Jeremy argued that if one looked at the sentence imposed upon R by the learned judge, it must have meant a starting point of something in the region of 6, 7 or 8 years for an adult. That he submitted would be too high a starting point.
13.
Miss Robinson, on behalf of L, argued persuasively to similar effect. She submitted, however, in the case of L that a sentence of detention was wrong in principle. She submitted that the learned judge should have followed the course recommended by the author of the pre-sentence report. She argued that, if a sentence of detention was appropriate, despite her submissions, then the sentence of 2 years was excessive. This was a very young boy. Insufficient account, she argued, was taken of his guilty plea and admissions in interview and the fact that he was of previous good character. She reminded us of his difficult background. It seems that the social services already have a full care order upon this young man or have had and he has been placed on various child protection registers over the years. He too has faced very real family problems.
14.
She submitted, as Mr Jeremy had submitted, that this was an act of stupidity rather than an act of malice. She reminded the Court that L's actions did not actually cause Mr Al-Quahed's coat to be set alight. She invited us to return to the proposal of the social services, for a supervision order. She was not, however, able to put before us any material to indicate that the social services themselves were still arguing for such a course. She did inform us they knew of this appeal today and they knew the effect of her submissions that she would be arguing for a non-custodial penalty.
15.
In our judgment, this is a very disturbing case. It is a rare case. Three young boys, for no apparent reason, set fire to a man. Each played their part. The CCTV footage shows that he was plainly drunk and incapable. All three of the accused played their part in what was, we are satisfied, a determined effort to set Mr Al-Quahed's clothing alight. They did not stop when the first or second attempts failed, they kept going until they thought they had succeeded. Had it not been for the intervention of an older boy, who had the sense and the courage to help put the fire out, the consequences could have been horrific. These two appellants would have faced a very much graver charge and the consequences thereof. Having seen their behaviour on the footage, we are also satisfied that whatever their problems and difficulties, and whatever their ages, they knew what they were doing and they knew how wrong it was. They left the scene laughing.
16.
The reports upon both boys especially also make very troubling reading. R is in particular need of intensive supervision treatment and guidance. L too has had his problems, to which we are referred, albeit that they are not as bad as those that R has experienced and L, of course, does not have a record of previous convictions, just the one caution. R's record is astonishing for a young man of such an age.
17.
The reports upon R indicate that his period of detention at Orchard Lodge has brought home to him, in a way that other sentences have not, the fact that his behaviour is unacceptable. He has benefited, at last, from the structure and the discipline and the continuity provided by secure accommodation. He is making significant progress. This bodes well for the future and reassures this Court to some limited extent.
18.
There has been progress too as far as his education is concerned. He is doing his best, it seems, to address his very real problems. We are satisfied, therefore, that the help he so desperately needs is available to him and we are delighted to see he appears to be taking advantage of it. We note that when he is released he may still in fact be subject to a secure accommodation order. Even if this period of detention were reduced, therefore, it may actually have little or no practical effect upon the arrangements for his care.
19.
As far as L is concerned, according to the reports, he has had virtually no structure to his life to date. He requires constant supervision and is apparently struggling with the rules and boundaries imposed by staff in the secure accommodation where he is now housed. He has to learn, for his own good, that his behaviour has been unacceptable and he must learn that he has to obey society's rules, if he is not to spend his life in detention. We note that at the time of this offence he had been missing for three days - a boy of 11. No one had reported him missing. That same boy of 11 was abusing drugs and alcohol. Plainly L is at most risk when he is at large in the community. His family, sadly, are not in a position to give him the accommodation, discipline and structure he so desperately requires. We are not told that there is in place today any particular placement for him where we could be confident that he would receive that accommodation, discipline and structure. When he is released from detention as far as Miss Robinson is aware, he will either be placed again with foster parents or in a residential home.
20.
This was, therefore, an extremely difficult sentencing exercise and we are not in the slightest bit surprised that the Single Judge decided to refer this matter to the Full Court for us to review. In our judgment, there can be no doubt that for an offence as grave as this, where a direct attempt was made to set fire to a person, a substantial period of detention was inevitable. But for the appellants' ages it could have been significantly longer. Thus, taken in isolation, we are satisfied that the sentences of 3 years' detention and 2 years' detention could not be criticised. Plainly this offence, as grave as it was, merited those sentences.
21.
We turn, therefore, to the question of what is in the best interests of these boys, given their backgrounds, given their needs and given the need to protect society in the long-term. As Mr Jeremy rightly observed, the needs of society go hand in hand with the needs of these boys. We are obliged to put the interests of these two boys at the forefront of our minds and deliberations and we unhesitatingly do so.
22.
The questions for us are whether or not their needs will be best provided for within the detention system and it so whether or not their needs dictate shorter sentences of detention than would otherwise be approved.
23.
Having given all those matters anxious consideration, we are satisfied, beyond any doubt, that what both these young men require is a substantial period of stability. They need the facilities available to them in the placements where they now, in the secure accommodation. They need the discipline. They need the structure. They need the support of people trained to assist them. Therefore, we are satisfied that they are in the best place for them at present. Accordingly we are satisfied that the sentences of 3 years and 2 years are entirely appropriate, on the facts of the case and in the interests and the welfare of these two young boys. Accordingly, the appeals of both young men must be dismissed.