REGINA v AARON MICHAEL SMITH

An extended sentence may be justified where an offender presents a significant risk of serious harm and there is no practical alternative to immediate custody. The court must consider whether the extended licence period is necessary to manage risk and support rehabilitation after release. A guideline starting point may be increased substantially where the offence is at the top of its category, involves several harm factors, forms part of wider criminality, and is aggravated by intoxication or a recent suspended sentence. Mental disorder or learning disability will reduce culpability only where the evidence demonstrates a substantial effect on responsibility. A troubled psychiatric background and substance misuse do not, without more, establish such a reduction. The overall sentence must also satisfy the totality and proportionality principles.

The applicant was sentenced at Bournemouth Crown Court on 5 October 2021 for three arson offences, assaults on emergency workers, criminal damage and related offending. The sentence included 21 months for other offences and breach of a suspended sentence, followed by an eight-year extended sentence for reckless arson endangering life, comprising four years’ custody and a four-year extended licence.

The renewed application challenged only the sentence for the most serious arson offence. The applicant argued that the six-year term before guilty plea credit was too high and that an extended sentence was unnecessary in light of his mental health difficulties and rehabilitative needs. The central issues were the proper guideline assessment, the effect of mental disorder and substance misuse on culpability, and whether an extended sentence was necessary.

The renewed application for leave to appeal against sentence was refused.

1. Guideline assessment. The offence was properly treated as a category 2B offence, although it was at the top of category 2 or close to category 1. Significant physical and psychological harm, a significant risk of serious harm, and damage of significant value were all present. Their combination justified a substantial increase above the four-year guideline starting point. The sentence also properly reflected the three arson offences committed within a short period, the applicant’s intoxication and the recent suspended sentence.
2. Culpability and mental health. The sentencing judge had considered the applicant’s age and mental health difficulties. The psychiatric evidence did not establish a psychotic illness, support a hospital order or demonstrate that mental disorder or learning disability substantially reduced responsibility for the arson. The offending was principally linked to excessive consumption of alcohol and cannabis, against a troubled emotional and psychiatric background. The six-year term before credit for the guilty plea was therefore appropriate.
3. Extended sentence. The finding that the applicant was dangerous was inevitable. His pattern of escalating offending demonstrated a significant risk of serious harm to the public. Once dangerousness was established, the question was whether an extended sentence was necessary or whether another means, such as a shorter determinate sentence, could manage the risk.
4. There was no practical alternative to immediate custody. The pre-sentence report considered the applicant unmanageable in the community and made no positive recommendation for a non-custodial disposal. Rehabilitation could begin in custody but needed to continue after release. That provided ample justification for the four-year extended licence period.
5. The total sentence was just and proportionate and was not excessive. Accordingly, there was no arguable ground of appeal.

• Crown Court at Bournemouth: On 5 October 2021, the applicant was sentenced to a total determinate term of 21 months, followed by an eight-year extended sentence for reckless arson endangering life.
• Court of Appeal (Criminal Division): The single judge refused leave. The renewed application was refused by the court in [2022] EWCA Crim 1093.