Finnerty, R v

An extended sentence requires a justified assessment that the offender poses a significant risk of serious personal harm or death. That assessment must be made on the evidence available at sentencing, including reliable expert and youth-offending assessments and demonstrable progress in a structured setting. An appellate court may intervene where the sentencing judge’s departure from that evidence is not explained and the significant-risk conclusion is unjustified.

An extended sentence also requires that the custodial term properly imposed meets the statutory minimum. Sentencing for reckless arson remains fact-sensitive. It requires a balanced assessment of danger, harm and aggravating features against youth, immaturity, mental condition, lack of intent and mitigation.

The respondent, aged 16 when he committed the offences, pleaded guilty at Winchester Crown Court to simple arson and arson reckless as to whether life was endangered. The second fire destroyed a Grade II listed church, caused extensive financial and community loss, and created a real risk to children in an adjacent church hall.

The Recorder imposed concurrent sentences, including an extended determinate sentence of seven years for the reckless arson, comprising four years’ custody and a three-year extension. The appeal challenged both the finding of significant risk of serious harm and the four-year custodial term required for an extended sentence. Further psychiatric evidence was received on the appeal.

1. Appeal allowed. The court quashed the extended sentence imposed for count 2 and substituted a concurrent term of three and a half years’ detention.
2. An extended sentence depended on a justified conclusion that the respondent posed a significant risk of serious personal harm or death. The court would ordinarily hesitate before holding that such an assessment was not open to an experienced sentencing judge. However, the expert and youth-offending assessments identified a risk but not a significant risk. The sentencing remarks did not explain the contrary conclusion.
3. The respondent’s progress while remanded in a secure children’s home was material. He had received structure and support, engaged well with services, made educational progress and shown genuine remorse. The later psychiatric evidence confirmed that this progress continued. In all the circumstances, the significant-risk conclusion was not justified. The judge was therefore not entitled to impose an extended sentence.
4. The statutory minimum custodial term for an extended sentence provided a separate ground for allowing the appeal. Reckless-arson sentencing was fact-sensitive. Although the grave danger, destruction of the church, loss to the community and repetition of fire-setting aggravated the offence, substantial mitigation included the respondent’s youth, immaturity, untreated condition, spontaneous conduct, absence of intent to cause personal harm and guilty plea. A four-year custodial term after plea was not justified.
5. A hospital order under Mental Health Act 1983 section 37 was unavailable because the statutory medical and placement requirements were not met. A hybrid order under section 45A was also unavailable: the respondent was under 21 and could receive detention rather than imprisonment. The court considered that five years after trial, reduced to three and a half years for the guilty plea, was appropriate. It encouraged those responsible to consider retaining him in the secure children’s home if possible.

• Court of Appeal (Criminal Division): In R v Finnerty [2016] EWCA Crim 1513, the appeal against sentence was allowed. The extended sentence on count 2 was quashed and replaced with a concurrent three-and-a-half-year term.
• Winchester Crown Court: The respondent pleaded guilty to simple arson and arson reckless as to whether life was endangered. The Recorder imposed one year’s detention on count 1 and a concurrent extended determinate sentence of seven years on count 2, comprising four years’ custody and a three-year extension period.