Attorney General's Reference No.58 of 2007 (S)

A community-based sentence may be plainly unduly lenient for a young offender who deliberately starts a fire while reckless as to danger to life, where the offence creates potentially fatal risk, extensive destruction and serious disruption. Youth, a late guilty plea and the absence of a previous custodial sentence may substantially reduce the appropriate custodial term, but do not eliminate the need for custody where earlier community interventions have failed.

Following a lengthy detention order, an anti-social behaviour order directed at future conduct may be inappropriate if licence conditions can more suitably manage the risks on release.

The Attorney General referred, under section 36 of the Criminal Justice Act 1988, a sentence imposed on S, who was aged 14 when he deliberately set fire to paper after entering a school with friends. He pleaded guilty on the day fixed for trial to arson contrary to section 1(2) and (3) of the Criminal Damage Act 1971.

The fire destroyed substantial parts of the school, required the evacuation of occupied adjoining facilities, and caused damage estimated at about £3 million. The Crown Court imposed a two-year supervision order with intensive supervision and a curfew, and a five-year anti-social behaviour order. The central question was whether that non-custodial sentence was unduly lenient.

1. The court granted the Attorney General leave to refer the sentence and held that it was plainly unduly lenient. The deliberate fire was an extremely serious offence with potentially fatal consequences. The offender must have appreciated that parts of the school complex were occupied. The extensive damage, evacuation, loss of students’ coursework and delayed admission of responsibility were material aggravating features.

2. The court recognised the offender’s difficult background, his age of 14 at the offence, his late guilty plea and his lack of any previous custodial sentence. Those matters substantially reduced the custodial sentence that would otherwise have been appropriate. They did not justify a community sentence for offending of this gravity, particularly when prior referral and supervision orders had failed and the offender had already repeatedly breached the present order.

3. The appropriate response was a controlled environment providing structure and support. The court quashed the supervision order and substituted four years’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, with time on remand to be deducted. S was to surrender immediately if necessary.

4. The court also quashed the five-year anti-social behaviour order. In light of the lengthy custodial sentence, it was not appropriate. Any continuing concerns at release could instead be addressed through licence conditions.

• Court of Appeal (Criminal Division): The Attorney General's reference was allowed. The court quashed the non-custodial sentence, substituted four years’ detention, and quashed the anti-social behaviour order: [2007] EWCA Crim 2057.
• Crown Court: S was sentenced to a two-year supervision order with intensive supervision and a curfew, together with a five-year anti-social behaviour order. No lower-court citation was stated.