Wood, R. v

When sentencing an offence under section 45 of the Serious Crime Act 2007, the seriousness or potential scale of the anticipated offence is relevant, but it is not the sole measure of sentence. The court must also assess the degree of encouragement or assistance actually given.

Assistance close to participation in, or conspiracy to commit, the reference offence may justify a sentence close to that for the reference offence. Less pivotal assistance, especially where there is coercion falling short of duress and little encouragement, requires a materially different assessment of culpability. A sentencing judge should not simply measure the assister's sentence by the principal offender's more serious conduct.

The Solicitor General referred, under section 36 of the Criminal Justice Act 1988, the sentence imposed on Kayleigh Wood as allegedly unduly lenient.

Wood had pleaded guilty at Chester Crown Court to encouraging or assisting arson with intent to endanger life, contrary to section 45 of the Serious Crime Act 2007. She drove her co-defendant to obtain petrol, took him to a residential tower block knowing that he intended to start a fire, and drove him away afterwards. The co-defendant started the fire at the communal entrance, but it did not spread.

The sentencing judge imposed two years' imprisonment, suspended for 18 months, with 200 hours' unpaid work. The central issue was how the seriousness of the intended arson and the limited, partly coerced nature of Wood's assistance should affect sentence.

1. Disposition. The court granted leave for the reference but declined to interfere with Wood's sentence. The suspended sentence was just and merciful, notwithstanding that the offending plainly crossed the custody threshold.
2. For an offence under section 45 of the Serious Crime Act 2007, sentencing must have regard to the seriousness or potential scale of the anticipated or reference offence. The court explained that the essential element of section 45, unlike section 44, is the defendant's belief that the full offence will be committed and that the defendant's act will encourage or assist it.
3. That assessment is not exhausted by the gravity of the reference offence. The court must separately assess the degree of encouragement or assistance. At one end of the spectrum, assistance close to participation in or conspiracy to commit the reference offence may attract a sentence close to that for the principal offence. At the other, the defendant may have a non-pivotal role, requiring the sentence to be scaled down while retaining proper regard to the intended offence.
4. Wood's conduct was serious: she knowingly drove the principal offender to obtain fuel, to the scene, and away afterwards. However, much of her assistance was unwilling, she gave little if any encouragement, and she had acted under coercion falling short of duress. Her co-defendant had said that he had forced her involvement. The judge was therefore entitled to treat her culpability as materially lower than his and to give substantial weight to her mitigation, including her previous good character, remorse, abusive relationship and the impact of immediate custody on her young child.
5. The judge had had regard to the arson guidance and had correctly considered both culpability and harm. His approach accorded with principle; the Attorney General's proposed method of deriving Wood's sentence principally from the co-defendant's starting point was rejected.

• Court of Appeal (Criminal Division). On an Attorney General's reference under section 36 of the Criminal Justice Act 1988, the court granted leave but declined to interfere with the sentence: [2019] EWCA Crim 1633.
• Crown Court at Chester. On 4 July 2019, His Honour Judge Berkson sentenced Wood, following her guilty plea, to two years' imprisonment suspended for 18 months, with 200 hours' unpaid work.