Myrie, AG Reference 68 of 2008

Sentencing for arson is highly fact-specific. Arson reckless as to whether life would be endangered is generally less grave than arson with intent to endanger life, but the boundary between the most serious reckless offences and the least serious intentional offences is narrow.

A sentence must reflect features including premeditated revenge, the likelihood that occupants will be asleep, risks to adjoining homes, ignition at an escape route, and leaving without raising an alarm. In an Attorney-General reference, an unduly lenient sentence may be varied, but the replacement sentence must allow for the offender being sentenced for a second time.

The Attorney-General referred a sentence under section 36 of the Criminal Justice Act 1988, contending that 30 months’ imprisonment imposed on Owen Anthony Myrie was unduly lenient.

Myrie had pleaded guilty at the Crown Court at Croydon to arson reckless as to whether life would be endangered, contrary to section 1 of the Criminal Damage Act 1971. Following an earlier roadside altercation, he deliberately set petrol and a mattress alight outside the front of an occupied mid-terraced house at night. The occupants, including two children, escaped after a neighbour raised the alarm. The central issue was whether the sentence properly reflected the gravity of the reckless arson and, if not, what sentence should replace it.

1. The court granted leave and held that the sentence of 30 months’ imprisonment was unduly lenient. The Attorney-General’s reference succeeded.

2. Arson offences are fact-specific. Reckless arson is one level below arson with intent to endanger life in gravity. However, the dividing line between the worst reckless cases and the least serious intentional cases is fine. Following R v Frankham [2007] EWCA Crim 1320, the starting point after trial for arson with intent to endanger life is eight to 10 years. The appropriate range for reckless arson is lower.

3. This offence fell at the upper end of reckless arson. It was a planned act of revenge. It was committed at night when the offender would have appreciated that the occupants, including children, were likely to be asleep. The house was mid-terraced, the fire was started at the principal entrance and exit, and the offender left without giving any warning.

4. The guilty plea, genuine remorse, previous good character, positive personal history, and the fact that the fire remained outside the house were substantial mitigation. Even allowing for them, a sentence approaching six years would have been appropriate following the plea.

5. Because Myrie was being sentenced for a second time, the court reduced the replacement term to four years and six months’ imprisonment, with full credit for time spent in custody. The sentence was varied accordingly.

• Court of Appeal (Criminal Division): On an Attorney-General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, found the sentence unduly lenient, and substituted four years and six months’ imprisonment: [2008] EWCA Crim 3188.
• Crown Court at Croydon: Her Honour Judge Downing sentenced the offender to 30 months’ imprisonment after his guilty plea to reckless arson.