Finnemore, R v

Draft sentencing guidelines which have not come into force are irrelevant to sentencing. Sentencing must instead be guided by the applicable authorities.

For arson with intent to endanger life, the appellate guidance identifies a starting point of eight to 10 years’ imprisonment after trial. Reckless arson ordinarily attracts a lower sentence, although the most serious reckless cases may closely approach the least serious intentional cases. The seriousness of arson is materially increased where it is planned, targets sleeping occupants, creates danger in residential flats, causes injury or lasting harm, and is committed by an offender with relevant previous convictions.

The Solicitor General referred the offender’s sentences under section 36 of the Criminal Justice Act 1988 as unduly lenient. The offender had been convicted after trial of one count of arson with intent to endanger life and two counts of reckless arson under the Criminal Damage Act 1971.

The Crown Court at Leicester imposed concurrent sentences of five years on the intentional count and three years on each reckless count. The fires at occupied flats were set during the night. The reckless fires were found to have been part of a plan to distract the fire service before the intended attack on two particular occupants. The central issue was whether the overall five-year term was unduly lenient.

1. The reference was allowed. The court granted leave, quashed the five-year sentence on count 7, and substituted a sentence of 10 years’ imprisonment. The concurrent three-year sentences on counts 4 and 6 were not disturbed.

2. The draft arson and criminal-damage guidelines had not yet come into force. They were therefore irrelevant to the sentencing exercise. The judge should have been guided by the applicable authorities, including Attorney-General’s Reference No 68 of 2008 (R v Myrie) [2009] 2 Cr App R(S) 48.

3. Myrie identified a starting point of eight to 10 years after trial for arson with intent to endanger life. Reckless arson generally falls below that range, but the boundary between the most serious reckless cases and the least serious intentional cases is fine.

4. The offending was planned rather than impulsive. The offender set fires at two sites in order to distract the fire service before setting a fire at the home of persons whose lives he intended to endanger. The reckless fires were set at night when occupants were asleep. They caused extensive damage, exposed residents to serious danger, led to hospital treatment, and had continuing effects on victims.

5. The court gave limited mitigating weight to the offender’s mental-health difficulties. He had no diagnosed disorder reducing culpability to a significant extent. His previous convictions, particularly earlier reckless-arson offending for which he had received a substantial custodial sentence, materially aggravated the case. Applying the appellate sentencing guidance, five years was unduly lenient and a minimum appropriate overall term was 10 years.

• Court of Appeal (Criminal Division): On a reference by the Solicitor General under section 36 of the Criminal Justice Act 1988, the court held that the sentence was unduly lenient and substituted 10 years’ imprisonment on count 7.
• Crown Court at Leicester: On 6 June 2019, His Honour Judge Mooncey imposed concurrent sentences of five years on count 7 and three years on each of counts 4 and 6.