R v Ishmail Zafar

In sentencing for arson reckless as to whether life was endangered, a judge may place the offence in the highest harm category where victim evidence establishes very serious psychological harm. Aggravating features may include accelerant, relevant previous convictions, offending on bail and the revenge nature of the attack. Mitigating features must also be balanced within the sentencing guidelines. A severe sentence is not manifestly excessive merely because it is severe.

Where low-value criminal damage is committed to the Crown Court with indictable-only offences, the court remains bound by the maximum penalty applicable to summary proceedings. A sentence exceeding that maximum must be quashed, even if concurrent.

The applicant renewed an application for leave to appeal against sentences imposed at the Crown Court at Luton. He had pleaded guilty to criminal damage and to two counts of arson, being reckless as to whether life was endangered.

The Crown Court imposed concurrent sentences of seven years and two months for each arson count and a concurrent sentence of 12 months for the criminal damage. The proposed appeal challenged the starting point, aggravating and mitigating factors, totality, the effect of the Covid pandemic on imprisonment and the overall excessiveness of the sentence.

The central issues were whether the arson sentences were manifestly excessive and whether the sentence for criminal damage exceeded the maximum available penalty.

1. The court granted leave to appeal and considered the challenge to the arson sentences. Culpability category B was common ground. The sentencing judge was entitled, on the basis of the Victim Personal Statements, to find very serious psychological harm and to place the offences in harm category 1.

2. The judge had properly identified and balanced the aggravating and mitigating features. The use of accelerant, the recent conviction for assault occasioning actual bodily harm and the revenge nature of the attack could be taken into account. The judge was required to refer to the recent conviction and was obliged to consider that the applicant was on bail, which was a statutory aggravating feature. The revenge character was consistent with the basis of plea because the applicant had agreed to smash the windows of another person’s property.

3. The relevant mitigation included the lack of premeditation, genuine remorse, a strong work ethic, the absence of a previous immediate custodial sentence and good progress in prison. The sentencing judge was acting within the bounds of the sentencing guidelines. Although the sentence was severe, it could not be characterised as manifestly excessive. The renewed application was therefore refused insofar as it challenged the arson sentences.

4. The sentence for criminal damage was unlawful. Because the value of the damaged windows meant that the offence was subject to a maximum sentence of three months’ imprisonment, the Crown Court was bound by that limit even though the offence had properly been committed to that court with the indictable-only offences. The concurrent sentence of 12 months exceeded the maximum.

5. In the circumstances, the judge would have been entitled to impose the top of the applicable range, namely 12 weeks. Applying the 25 per cent guilty plea credit produced a sentence of nine weeks. The court quashed the 12-month sentence and substituted nine weeks, concurrent with the sentences on the arson counts. The overall sentence therefore remained seven years and two months.

Court of Appeal (Criminal Division) — On a renewed application following refusal by a single judge, the court granted leave and allowed the appeal to the extent that it quashed the sentence for criminal damage and substituted nine weeks’ imprisonment. The arson sentences were left undisturbed.

Crown Court at Luton — The applicant was sentenced to concurrent terms of seven years and two months for each arson count and 12 months concurrently for criminal damage.