Herrity & Anor, R. v

Credit for a guilty plea depends on whether the defendant indicated a willingness to plead at the first reasonable opportunity. That opportunity does not ordinarily arise in police interview. A timely and reasonable indication that the defendant will admit a lesser offence may qualify. Where the first reasonable opportunity is a preliminary Crown Court hearing, full one-third credit may be due. A plea at, or shortly after, a plea and case management hearing will ordinarily attract about one-quarter credit.

In assessing a sentence for reckless arson, premeditation, revenge, use of petrol, danger to sleeping occupants, risk of spread and failure to raise the alarm may justify a sentence at the upper end of the applicable range.

The appellants and a co-accused set fire to the petrol-soaked front door of an occupied semi-detached house in revenge following an earlier altercation. The fire was started at the principal entrance while two occupants were in bed. No one was injured.

At the Crown Court at Plymouth, before HHJ Cottle, the appellants pleaded guilty to reckless arson after the indictment was amended from arson with intent to endanger life. Each received six years’ imprisonment. Luscombe also received a consecutive six-month term following partial activation of a suspended sentence.

They appealed principally on sentence. The central issue was whether their indication that they would plead guilty to the lesser offence had been made at the first reasonable opportunity and therefore merited full credit.

1. The appeals were allowed to a limited extent. The sentences of six years for reckless arson were reduced to five years and four months, to give full one-third credit for the guilty pleas. All other orders stood.
2. The court applied the guidance in R v Caley [2012] EWCA (Crim) 2821. The governing question was whether a defendant had indicated willingness to plead guilty at the first reasonable opportunity. That opportunity was not ordinarily the police interview. It was normally the magistrates’ court or, for an indictable-only case, immediate arrival at the Crown Court for a preliminary hearing. A reasonable indication of willingness to plead to a lesser charge also counted.
3. The court accepted that the 10 December hearing was the first reasonable opportunity in the particular circumstances. Until then the Crown had not indicated a willingness to accept pleas to reckless arson, and the appellants promptly confirmed their proposed pleas. The sentencing judge therefore erred in treating the case as one attracting only 25 per cent credit. Had the hearing properly been a plea and case management hearing, the assessment of 25 per cent would have been difficult to disturb.
4. The six-year sentence before plea credit was not manifestly excessive. Applying Attorney General's Reference (No 68 of 2008) [2008] EWCA (Crim) 3188, the court held that the offence properly lay at the upper end of reckless arson. Its seriousness arose from planning, revenge, petrol as an accelerant, danger to occupants and adjoining homes, and the failure to raise an alarm.
5. The court rejected the challenge to activation of Luscombe’s suspended sentence. It also confirmed, by applying R v Boutell [2010] EWCA (Crim) 2054, that the sentencing judge’s direction sufficiently secured credit for remand custody and qualifying curfew. Luscombe was entitled to 109 days’ credit.

• Court of Appeal (Criminal Division) — allowed the sentence appeals only to provide full one-third credit for guilty pleas, varying each six-year arson sentence to five years and four months: [2014] EWCA Crim 963.
• Crown Court at Plymouth — HHJ Cottle sentenced each appellant to six years’ imprisonment for reckless arson. Luscombe received a further consecutive six months on partial activation of a suspended sentence.