Neutral Citation Number: [2014] EWCA Crim 963
No: 201301556 A3, 201301586 A3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 19 February 2014

B e f o r e:

LORD JUSTICE TREACY 

MR JUSTICE KING 
 
HIS HONOUR JUDGE KRAMER QC 
 
(Sitting as a Judge of the Court of Appeal 
Criminal Division)
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R E G I N A 

v 

DANIEL HERRITY
and 
ROSS LUSCOMBE
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Mr RF Linford appeared on behalf of the Appellant, Herrity 

Mr J Young appeared on behalf of the Appellant, Luscombe 
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J U D G M E N T 
1.	MR JUSTICE KING:  On 26 February 2013, in the Crown Court at Plymouth before HHJ Cottle, these two appellants, together with a co‑accused Liam MacDonald, each pleaded guilty to count 2 of the amended indictment alleging arson being reckless as to whether life was endangered.  The offence had been committed on 27 August 2012.  The indictment had been amended that day to add count 2.  It had originally contained only count 1 alleging arson with intent to endanger life.  Following the pleas the prosecution offered no evidence on that count and a not guilty verdict was entered.  We shall return to the circumstances in which these pleas came to be made, and the indictment came to be amended, when we consider the grounds of appeal.
2.	Each appellant was sentenced to 6 years' imprisonment.  In the course of his sentencing remarks the judge made clear that the credit for which he was giving them for their guilty pleas was one of 25%.  Again we will return to the circumstances in which that was indicated.  Luscombe also fell to be dealt with for the consequential breach of a suspended sentence order imposed at the Crown Court, on 13 February 2011, for two offences of sexual activity with a child under the age of 16.  That order had been one of 12 months' imprisonment suspended for 24 months.  The judge activated that sentence consecutively, but with a reduced term of 6 months.  He did so expressly having regard to the principle of totality.  The total sentence in Luscombe's case was accordingly one of 6 years and 6 months.   
3.	In the case of the co‑accused, MacDonald, the sentence passed on the arson count was that of 5 years.  In addition, he received a consecutive sentence of 2½ years for the possession of a Class A drug.  The judge made clear that he had reduced the sentence on count 1, compared with the others, to take account of totality.
4.	The facts of the arson in the round involved the appellants, as an act of revenge, some time between 7 o'clock and 8 o'clock in the morning, pouring petrol onto the outside of the front plastic door of a semi‑detached dwelling house, and through the letterbox, and then igniting the petrol.  The appellants then left.  At the time of the fire two occupants were in bed, the third was getting ready for work, which fortunately enabled him to be alerted to the fire at the front door, and to take steps to call the fire brigade who put out the fire to the door without anyone being harmed.  
5.	We return to the facts in a little more detail.  It was something like 6.45am on 27 August 2012 that the appellants and the co‑accused were involved in an altercation with a man called Jamie Phillips, during which Herrity was set upon by a group of men.  After the incident the appellants and MacDonald went by taxi to the home address of Phillips, stopping en route to the garage where Luscombe purchased a lighter while MacDonald bought a 5‑litre petrol can which he filled. They continued their journey and were dropped off close to  Philips' home address.
6.	Between 7.30 and 8 o'clock in the morning Graham Phillips, Jamie's father, was getting ready to go to work.  Also present in the house was his wife and another son, not Jamie, both of whom were in bed.  Jamie was not there.  Graham Philips heard a bang and then a whoosh sound and went downstairs.  He saw the flames and the front porch was full of smoke.  He tried to put the fire out, but was unsuccessful.  The fire brigade arrived quickly.  A witness described seeing the porch on fire with large flames and two males casually walking down the road.  He shouted at them and gave chase, but neither was caught.  One of them discarded a jerry can.  The fire officer who attended the scene said it was clear that petrol had been used on the outside of the door.  Some had possibly been put through the letterbox in order to start the fire.  The damage was valued at some £700.  
7.	The appellants were later arrested and interviewed.  Luscombe denied the offence and said he had not purchased a lighter.  He did admit being with two Liverpudlian males that night and on exiting a taxi noticed that one had a petrol can.  Herrity and the co‑accused made no comment.  
8.	Luscombe is 24 years of age, his date of birth being 2 October 1989.  He had previous convictions.  One of them was for arson committed in July 2005 when he was 15, for which he received a referral order from the Plymouth Juvenile Court.  The information about that offending before the court set out in the pre‑sentence report, and accepted by the sentencing judge, was that it amounted more to "mindless vandalism".  This was in contradistinction to the appellant being fascinated with fire.  It evidently involved a group of teenagers setting fire to a pipe on wasteland which had got out of control.  Luscombes' other convictions were those for the sexual activity, for possessing cannabis, common assault and disorderly behaviour.  
9.	Herrity is 22 years of age.  He had previous convictions, namely for possessing cannabis, being drunk and disorderly and failing to pay rail fares.  
10.	MacDonald is 26 years of age.  He had five previous convictions for 12 offences, including theft, aggravated vehicle taking and associated driving offences.  In addition, of course, he fell to be sentenced for the possession of cocaine with intent to supply.  
11.	In his sentencing remarks the judge made clear he drew no distinction between the roles taken by any of the defendants.  There appeared to him to be no sensible basis on which to make any such distinction.  They were all equally responsible for the offence.  This had been in the context of submissions made on behalf of Luscombe, that he had played a lesser role and that he himself had not gone to the house or played any part in the physical act of setting fire.  However, he of course had bought the lighter.
12.	The judge stated that he considered the offence belonged at the upper end of the bracket for offences of reckless arson.  It was only through good fortune that the consequences had not been more serious.  The offence had been premeditated: an act of revenge.  The house had adjoined others and the fire had potential to spread.  Nothing had been done by any of the defendants to raise the alarm.  He said there was little mitigation apart from the pleas of guilty, each having previous convictions "to a greater or lesser extent".  There had been no expressions of remorse.
13.	We turn to the grounds of appeal.  Mr Luscombe in his original grounds of appeal, considered by the Single Judge,  sought to argue that the sentence was manifestly excessive because it failed to reflect his limited role in the offending.  This has not been pursued before us and rightly so.  There was no basis for distinguishing the appellants by reference to their different roles, as the judge said, each was equally responsible for this joint enterprise.  
14.	Mr Linford, on behalf of Herrity, has sought to argue that the judge should have made a distinction between his client and the other two by reference to what he submits were the more limited lesser convictions of his client compared to the others.  We see nothing in this point.  It is true that Luscombe had a conviction for offending for arson, but this did not justify any distinction being made in the circumstances of the case.  As we have already indicated, that was an offence of some years before when he was a very young man and reflected mindless vandalism.
15.	Mr Linford has also pursued before us, although not with great enthusiasm, an argument that the starting point taken by the judge, before giving credit for the pleas, was too high and outside the bracket appropriate to the facts of this case.  Given the 25% reduction for the plea, the sentence represented a starting point of 8 years.  
16.	We have been referred to Attorney General's Reference (No 68 of 2008) [2008] EWCA (Crim) 3188.  The judge himself expressly referred to this authority.  In that decision this court, following a review of the authorities, indicated that the appropriate starting point for arson with intent to endanger life, following a trial, would be "in a range of eight to 10 years" with the range for cases involving reckless arson being "rather below that".  The court made the point however that the dividing line between the worse cases of reckless arson and the least serious cases of arson with intent to endanger life is a fine one.  
17.	Mr Linford sought to persuade us that this sentence was manifestly excessive because it could not rightly be put at the upper end of the bracket for offences of reckless arson.  We do not agree.  The judge in his sentencing remarks had careful regard to the decision in the Attorney General's Reference.  He noted that the court in that case, in which the offender had pleaded guilty, had indicated that a proper sentence on an initial sentencing exercise was at least 6 years, that this had been in a case in which the aggravating features identified at paragraph 14 of the judgment in Attorney General's Reference were not dissimilar to those in the present, but was also a case in which the offender could lay claim to mitigation not available to these appellants.  That included his being a man of previous good character, with substantial mitigating positive features in his life, and his having shown genuine remorse.
18.	We have already identified the aggravating features in this case.  We repeat them: the offence was premeditated; it was an act of revenge; the house adjoined others; accelerant had been used and the fire had potential to spread; and nothing had been done by the defendants to raise the alarm.  Not only that, the fire was started in the main entry and exit point of the house.  As we have indicated, given the time of day it was not surprising that there were occupants in the house and occupants who were in bed.  As the judge said, it was purely by good fortune that the consequences were not more serious.  There is nothing in the point that the sentence in principle was manifestly excessive.
19.	We turn to the principal point which has been argued before us, which goes to the credit given for the pleas of guilty.  The appellants had pleaded not guilty to the count 1 offence at a hearing on 10 December 2012 before HHJ Darlow.  The sentencing court in this case, HHJ Cottle, described that hearing as the "plea and case management hearing".  
20.	Mr Linford, on behalf of Herrity, has informed us that as far as his client was concerned it was not such a hearing, but it was a preliminary hearing.  This was a case in which the offence was triable only on indictment and had been transferred to the Crown Court pursuant to the material statutory provisions.  We do not have a transcript of what occurred on that occasion on 10 December.  However, HHJ Cottle in his sentencing remarks accepted that on that occasion it had been indicated, on behalf of all defendants, that were it acceptable to the Crown each would be willing to plead to the count of reckless arson.  Within a very short time of that hearing confirmation of their intentions was given to the prosecution and accepted by them.  The judge said in those circumstances the credit to which they were entitled was "in the region of 25%".  They were not entitled to the full credit that goes with the plea of guilty, he said, because "that is reserved for people who accept their guilt at the time of interview".  It is clear from the remarks made by the judge at the mitigation hearing, on 12 February 2013, that he was intending to put the appellants in the same position as they would have been "had [they] pleaded guilty, acceptably, at the PCMH, which they intended to do" (see transcript at page 3F).  
21.	Mr Linford, who appeared on behalf of Herrity before HHJ Darlow, has informed us that the judge there had indicated that if the defendants wished to retain credit for their guilty pleas to lesser offences, those pleas should be communicated to the prosecution within seven days, which was duly done.  He says that accordingly the Sentencing Judge should have given maximum credit for the guilty pleas.  He submits that on the authorities this was a plea to a lesser offence at the first available opportunity, given that it was a preliminary hearing.  Mr Young, on behalf of Luscombe, adopts the arguments of Mr Linford.
22.	We have looked at the guidance given by this court in R v Caley [2012] EWCA (Crim) 2821, which itself had regard to the guidance given by the Sentencing Guidelines Council.  The key feature which emerges from Caley is that the essential question is whether the defendant indicated his willingness to plead at the first reasonable opportunity.  Absent particular circumstances the first reasonable opportunity for a defendant so to indicate is not the PCMH and is normally either at the Magistrates' Court, or on immediate arrival at the Crown Court at a preliminary hearing (see paragraph 18 of Caley).  The court in Caley did not however endorse the principle apparently adopted in the present case by the Sentencing Judge, that the first reasonable opportunity arose in the police interview (see Caley at paragraph 12).  As regards pleas to lesser offences, the court in Caley said this at paragraph 20:  
"20. By 'indicate plea of guilty' we mean to include the case where, either in the magistrates' court or at or soon after arrival in the Crown Court, the defendant through counsel or solicitors notifies the Crown that he would admit a lesser charge or invites discussion as to the appropriate charge, at any rate where the position taken up is a reasonable one." 
23.	Had we been satisfied that the hearing at which the indications were given on 10 December was properly to be characterised as a plea and case management hearing, then it would have been difficult to interfere with the Sentencing Judge's assessment of a 25% reduction.  The court in Caley at paragraph 19 indicated that the stage of a PCMH, or shortly thereafter, was a stage at which the guideline contemplated a reduction of about a quarter.
24.	However, we cannot be so satisfied in this that the occasion on 10 December was not the first opportunity at which the indications to plea to these lesser charges could have been given.  It is clear that the prosecution up to that date were not indicating any willingness to accept lesser pleas.  There was only count 1 on the indictment, that of arson with intent.  In the round we accept, given the submissions made by Mr Linford, that the Sentencing Judge should have treated these indications as having been given at the first reasonable opportunity in the particular circumstances of this case.  We therefore will allow the appeal in both cases here to ensure that a full one‑third credit is given for the guilty pleas.
25.	The only other matter to which we should refer to is this: in the papers there has been suggestion that there was a failure by the judge to direct that time spent in custody on remand, or in relation to qualifying electronic curfew, should count towards sentence and that as a result one or other of these appellants has been prejudiced because proper credit for these matters has not been given to him.  In fact, it is clear from the remarks made by the Sentencing Judge at the  mitigation hearing, on 12 February 2013, that he did give the appropriate direction.  He said at page 8D:  
"Well I will make it clear that those periods that have been spent in custody by the defendants will count towards their release date."  
26.	This court in R v Boutell [2010] EWCA (Crim) 2054 this court made clear at paragraph 16 that where a judge uses words that refer to "remand in custody", that is sufficient to enable proper credit to be given to a defendant for both the period spent on remand in custody and for qualifying curfew. 
27.	In these circumstances no ground of appeal, as such, in relation to these matters has been pursued.  However, for the avoidance of doubt, we make clear that in the case of Luscombe 76 days spent in custody and 33 days reflecting one half of the days spent on qualifying curfew, that is to say a total of 109 days, are to be credited against the sentence he received.  We understand from Mr Linford, on behalf of Herrity, that in fact in his client's case the matter has been appropriately and administratively dealt with by the authorities.
28.	In all these circumstance, therefore, we allow this appeal in each case, but only to this extent: by reducing the sentence of 6 years on count 2 to one of 5 years and 4 months, to reflect full credit for the pleas.  All other orders will stand.  We should add that Mr Young, on behalf of Luscombe, did seek to pursue before us a ground of appeal which has never previously been put before the court, namely that the judge was in error in activating the suspended sentence at all.  This, it was submitted, was because of the difference in character between the offence for which the suspended sentence was passed and the present offending.  We see nothing in that point at all.  The activation by the judge of 6 months of a suspended sentence of 12 months was an entirely proper order.  We do not therefore give leave to Luscombe to pursue that ground.