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Regina v Mark James Milne

No: 201301836/A3 Court of Appeal Criminal Division 18 October 2013

[2013] EWCA Crim 1999 2013 WL 5905395

Before: Lord Justice Davis Mr Justice Spencer His Honour Judge Rook QC (Sitting as a Judge of the CACD) Friday, 18th October 2013

Representation
Mr T Dyke appeared on behalf of the Applicant.

Judgment
His Honour Judge Rook: 1 This is a renewed application for an extension of time in which to apply for leave to appeal against sentence and a representation order after refusal by the single judge. 2 This applicant is now aged 41. 3 On 10th December 2008 at Durham Crown Court the applicant pleaded guilty to an offence of arson being reckless as to whether life was endangered and an offence of criminal damage. On 13th February 2009 he was sentenced by His Honour Judge Forster QC to imprisonment for public protection, with a minimum term of 2 years and 165 days with a sentence of 56 days concurrent in respect of the criminal damage. 4 The facts can be stated relatively briefly. The applicant was released from prison on 25th July 2008 following a sentence of 10 weeks' imprisonment imposed by Doncaster Magistrates' Court for the offences of criminal damage and a breach of conditional discharge. He was homeless and he had consumed a quantity of alcohol, cannabis and diazepam. 5 The applicant went to the house of the complainant Anthony Palmer. The complainant had some mental health difficulties of his own and he lived on his own. He knew the applicant but had not seen him for a number of years. He felt frightened and intimidated by the applicant's presence and although he wished him to leave he allowed him to stay for a while because he thought that was easier than asking him to leave. 6 The applicant then visited another friend's house, where he appears to have drunk a considerable amount of alcohol. He stayed there overnight and then the next day, at 10.30 pm Mr Palmer heard a knock at the door of his address. 7 On opening the door he saw the applicant with one hand behind his back holding a kitchen knife with a blade approximately 5 inches long. Mr Palmer went to the sitting room after shutting the door to get the applicant away from the house. He saw the applicant, through the window, lift the lid on his wheelie bin, putting a tent in the bin and setting it alight. The applicant then walked into the front garden, picked up a house brick and threw it at a large window. It went through the outer pane. The applicant then picked up the brick again and threw it again. The damage to the window is covered by count 2. 8 Palmer shouted out asking why he had behaved that way. The applicant simply walked off insulting Mr Palmer. The complainant telephoned his mother, who called the police who attended

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and extinguished a fire in the wheelie bin. 9 The following morning, shortly before 3.00 am, Mr Palmer was sitting on his sofa in the living room when he smelt a strong smell of petrol and he heard a sound of liquid being thrown against the front door. He saw the applicant pouring petrol through the hole in the damaged window. Mr Palmer stood on the other side of the window with his jeans soaked with petrol. The applicant lit a match and threw it. The match lit the carpet but fortunately not Mr Palmer. The applicant struck another match while holding the petrol canister. Mr Palmer then ran out and confronted the applicant and asked what he was doing. Mr Palmer again telephoned his mother and the police attended again. The police arrived and discovered the applicant a short distance away. He threatened the officers with a vodka bottle he was carrying. 10 As a result of the incident, damage was caused to the front door. The hallway was flooded with petrol and there was other damage to the house. 11 The applicant wrote a letter to the judge expressing his remorse, indicating he had written a letter of apology to Mr Palmer and expressing his wish to conquer his drink problems. There was a victim personal statement from Anthony Palmer who stated that he had been petrified; he lives in fear of the complainant because of his violent and unpredictable behaviour and indeed is contemplating moving house to avoid a recurrence of such an incident. 12 The author of a pre-sentence report noted that this current offence of arson represented a serious escalation in the applicant's offending. The applicant had 29 previous convictions for 72 offences but it is right that he has no previous convictions for arson. His convictions do, however, include one for wounding, contrary to section 20 for which he received an 18-month sentence and a number of burglaries. The pre-sentence report, dated 21st January 2009, indicated that the applicant had stated that he might have consumed alcohol, smoked cannabis and taken Diazepam. He said that he was extremely surprised that he could have committed such offences and he was absolutely devastated by his own behaviour. He acknowledged the emotional impact his conduct must have had upon the complainant. He believes that he would not have committed the offences had he not been under the influence of the various substances. 13 His risk of reconviction was assessed as high based on his previous convictions, the serious nature of this offence and his life-style generally combined with his substance abuse and his poor coping and thinking skills and behaviour deficit. It was, however, acknowledged that the applicant could reduce his risk of reconviction if he completed work specifically to address his substance misuse. It was noted that the applicant's substance misuse had been going on for a number of years. It involved the use of heroin, which had resulted in an overdose and hospitalisation, and also the heavy use of amphetamine at one stage in his life. He had also used Ecstasy and cocaine. As far as his alcohol addiction was concerned, it was said that he consumed as much as three or four bottles of wine a day plus strong cans of lager. The applicant admitted that he realised that alcohol was his problem because it causes him to lose all inhibitions and leads to his offending. 14 As to why he had not sought assistance when released from custody before committing this offence he said he preferred to go his own merry way and not work with probation since probation would not do him any favours. That attitude, the author of the pre-sentence report commented, gave some explanation to his various breaches of probation supervision. His risk of serious harm to the public was assessed as high and he was assessed as posing a risk of harm to police officers and known adults. 15 In a psychiatric report, dated 27th November 2008, Dr Green described the applicant's history of severe alcohol abuse, which had been going on throughout his adult life. In Dr Green's opinion, if once in the community the applicant continued to abuse alcohol and drugs there was a risk of future serious threat towards others when intoxicated. He added to this that there were no evidence of particular propensity of fire setting but in Dr Green's view the probability of future offending was inevitable, if the applicant continued to abuse alcohol. In a further report, when asked to address the particular issue of whether the applicant posed a danger to the public, Dr Green stated that given the applicant's long history of delinquent behaviour, extensive criminal history and a long history of drug and alcohol abuse and emotional disability, it was unavoidable to conclude other than he did pose a continuing danger to the public. 16 In his sentencing remarks the judge observed that the applicant was capable of committing

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serious offences without any regard to the safety of others who may be involved. He noted that the applicant had been willing to arm himself with a knife and had later used petrol to attack the house, knowing the occupant was still present. The judge formed the view that the applicant needed treatment on a long-term basis to overcome his present problems so as to reduce the risk he posed of committing further specified offences and to enable him safely to live in the community. Accordingly he imposed a sentence of imprisonment for public protection. 17 As far as fixing the minimum term was concerned, he took the view that the appropriate determinate sentence starting point was 9 years. Allowing full credit for the guilty plea, it would be reduced to 6 years then that would be halved so as to calculate the minimum term. 18 In written grounds of appeal against sentence, elaborated before us today orally by Mr Dyke, on behalf of the applicant, it is submitted that the sentence imposed by the judge was both wrong in law and manifestly excessive. 19 It is, however, conceded that the judge was entitled to find that the applicant represented a significant risk of serious harm to members of the public from further specified offences. 20 However, it is submitted that an extended sentence should have been considered before the period of imprisonment for public protection was imposed. It was contended that that alternative sentencing option was not considered by the judge as he was obliged to do on the authorities. An extended sentence under section 227 of the Criminal Justice Act 2003 would have adequately protected the public from any risk posed by the applicant. Indeed, in particular, Mr Dyke, today has referred us to indications of the applicant's resolve to tackle his alcohol abuse and it is Mr Dyke's submission on the basis of that, and various passages in the pre-sentence report, that the applicant's alcohol abuse could be appropriately tackled in the community, with the benefit of a period of extended licence. 21 We have considered this point with great care. We do not consider that there is any merit in the point. Firstly, in our view, it is inconceivable that the trial judge would not have had the sentencing option of an extended sentence in mind. Indeed, when sentencing he particularly referred to the need that the applicant has for long-term treatment in order to cope with his problems. 22 Secondly, Mr Dyke correctly submits that because the judge did not spell out that he had considered the alternative of extended sentence, we must consider the matter afresh. We have done so and, in our view, there is extensive evidence from which the judge would have been entitled to form the view that an extended sentence was not appropriate in that it would not have provided the public with sufficient protection from an offender, who quite clearly, from all the material before the judge, required long-term treatment. Indeed, in our view, this is a classic case where a period of imprisonment for public protection would have been appropriate under the law as it then stood which we must apply. 23 Mr Dyke also contends that the starting point of 9 years, reduced to 6 years after plea is manifestly excessive. He has in his skeleton argument referred us to the case of Attorney-General's Reference No 68 [2008] EWCA Crim 3188, [2009] 2 Cr App R(S) 48 , when this court reviewed a large number of authorities when considering whether a sentence for arson being reckless as to whether life would be endangered was unduly lenient. That court concluded that the starting point for arson with intent to endanger life was in the range of 8 to 10 years following a trial. In cases involving reckless arson, the range would be rather below that but the court pointed out that the line between the worst case of reckless arson and the least serious cases of arson with intent to endanger life is a fine one. 24 Mr Dyke concedes that this case shares that Attorney-General's Reference a number of aggravating features. The offences were committed at night, it was a premeditated act of revenge, an accelerant of petrol was bought tot he scene which shows a degree of planning, the fire was set at the front door to the main entrance and the exit to the property. However, Mr Dyke seeks to distinguish this case on the basis that there were no children present. It has to be acknowledged that the applicant knew his intended victim, a vulnerable person was present. Furthermore, after an unsuccessful attempt to start a fire, he returned in the early hours with petrol. In our view, this was a particularly grave example of reckless arson. 25 It is well established that cases of arson are fact specific and the range of sentences vary. In the circumstances of this serious case, we do not consider the starting point of 9 years as

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manifestly excessive. In these circumstances, this application is refused. Lord Justice Davis: 26 Mr Dyke, you came on an unfunded basis? 27 MR DYKE: Yes my Lord. 28 LORD JUSTICE DAVIS: It is almost the invariable practice not to grant representation orders in such circumstances but quite exceptionally we think you should have a representation order granted for this matter. 29 MR DYKE: I am very grateful my Lord.
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