Gyi & Anor, R. v

For reckless criminal damage endangering life, conduct which creates toxic smoke, suppresses fire alarms and leaves other residents exposed to danger is gravely aggravating and properly crosses the custody threshold. Sentence must nevertheless reflect the absence of serious damage or injury, prompt admissions, early guilty pleas, genuine remorse, good character and the offender’s personal mitigation.

Voluntary intoxication which disinhibits dangerous conduct and encourages concealment is an aggravating, not mitigating, feature. A custodial term may exceptionally be suspended where the balanced mitigating factors and the enduring consequences of conviction make that course just.

Each applicant pleaded guilty at Sheffield Crown Court to criminal damage, being reckless as to whether life would be endangered, contrary to section 1(2) of the Criminal Damage Act 1971. After drinking heavily, they heated television parts in an oven, producing noxious smoke. They covered smoke detectors and left the building before another resident raised the alarm and the remaining residents were evacuated.

The sentencing judge imposed two years’ imprisonment on each applicant. He treated the conduct as extremely serious and took limited assistance from R v Masterson, [2010] Cr App R(S) 114. The applicants appealed against sentence, contending that immediate custody and, alternatively, the length of the terms were wrong.

1. The appeal was allowed. The court granted leave, quashed each two-year sentence and substituted 51 weeks’ imprisonment, suspended for 12 months, with 100 hours’ unpaid work.

2. The offence plainly crossed the custody threshold. The applicants had generated noxious smoke, covered smoke detectors and left other residents in the building without raising the alarm. Those acts created a serious risk to life. The absence of serious property damage and the limited physical effects on residents did not remove its seriousness.

3. There was little sentencing guidance for this precise offence. Sentences of two to three years had often been upheld for arson and for damage immediately putting lives at risk. On the facts, however, the court considered that a post-trial sentence should not exceed 18 months. Full credit for the early guilty pleas, immediate admissions, remorse, good character and strong personal mitigation reduced the appropriate term to 51 weeks.

4. Alcohol was aggravating. It disinhibited the applicants’ initial conduct and then encouraged them to conceal the danger rather than secure others’ safety.

5. The court gave substantial weight to the applicants’ genuine remorse, the time already spent in custody and the severe, continuing consequences of the conviction for education, careers, travel and future employment. Balancing those matters, it was just, though only just, to suspend the substituted terms.

• Court of Appeal (Criminal Division): Allowed the sentence appeals and substituted suspended sentences: [2011] EWCA Crim 1309.
• Sheffield Crown Court: Following guilty pleas under section 1(2) of the Criminal Damage Act 1971, imposed two years’ imprisonment on each applicant on 25 February 2011.