No: 200605273 A9 
Neutral Citation Number: [2006] EWCA Crim 3277
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Monday, 11 December 2006
 
B E F O R E:

LORD JUSTICE LATHAM 

MR JUSTICE MITTING 
 
MR JUSTICE TEARE 

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R E G I N A 

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MR S SULLIVAN appeared on behalf of the APPELLANT
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J U D G M E N T
1.	MR JUSTICE MITTING:  On 27th August 2005 the appellant, who was born on 3rd May 1991 and so was then aged 14, set fire to the contents of a bin of paper waste outside a paper products factory in Hitchin.  The fire took hold.  Extensive fire and smoke damage was caused to the building, estimated at £100,000 worth.  Employees working the nightshift were inside.  The building was filled with smoke.  One employee was taken to hospital for treatment for smoke inhalation.  This offence was the subject of count 1 on an indictment which eventually contained four counts, to which the appellant pleaded guilty on arraignment on 23rd January 2006, still aged 14.  He was charged with arson, being reckless as to whether life would be endangered.  
2.	On 3rd September 2005 the appellant set fire to what was described by prosecuting counsel as "the open sun roof area" of a Volvo motorcar parked at the back of the house of its owner causing £500 worth of damage (count 2).  He was charged with arson. 
3.	In the early hours of 4th September 2005 the appellant set fire to the contents of a dustbin standing near to the rear garden fence of the home of an 85-year old woman.  The fire spread to the house and caused extensive damage (£40,000 worth) to the kitchen, including the collapse of its roof.  The woman escaped injury when awoken by her daughter.  This was count 5, arson, being reckless as to whether life would be endangered.  Indicted as occurring on 9th September 2005, but clearly in fact 9th August 2005, the appellant set fire to the contents of a large dustbin outside Starbucks' café in Hitchin, causing damage to its windows worth £2,650, count 3, simple arson. 
4.	The appellant asked for 12 other offences of simple arson, all it seems to waste bins, all committed in Hitchin in July or August 2005 to be taken into account.  He was sentenced on 22nd September 2006 to sentences of detention for public protection with a minimum term of 1 year.  He had one previous conviction for a non-dwelling house burglary committed in August 2005 for which a referral order had been made.  He was arrested on 9th September 2005 with another young man.  The appellant initially denied the offences but, when implicated by his co-accused, admitted them.  The delay between arraignment and sentence was caused by the aborted trial of his co-accused, who was acquitted of all charges pursuant to a direction under section 17 of the Criminal Justice Act 1967.  The appellant was on bail throughout and committed no further offences.
5.	He told the authors of the pre-sentence report that he committed the offences out of boredom, but did not realise that the fires might spread from waste bins lit by him, thus contradicting his pleas of guilty to counts 1 and 5.  He expressed remorse.  They thought he had learnt a salutary lesson from his arrest and court appearances.  They expressed doubts about his resilience in a Young Offender Institution, and invited consideration of a community order.  They assessed his risk of reoffending as medium.  Mr Halstead, a consultant psychiatrist, diagnosed a "mixed disorder of conduct and emotions", and identified the risk that this would harden into an antisocial personality disorder.  He noted that the appellant was not informative in interview about why he lit the fires.  He recommended that the "issue of fire safety", be further explored and "should not be dismissed as something in the past or which he has got over".  This view appears to have become translated in the pre-sentence report as "a suggestion of pathological fire setting." 
6.	Judge Foster determined, correctly in our view, that only a custodial sentence could be justified for these very serious offences.  But for the provisions of section 226 of the Criminal Justice Act 2003 he would have imposed a 2-year detention and training order, giving full credit to the appellant for his guilty plea by not imposing a longer sentence under section 91 of the Powers of Criminal Court (Sentencing Act) 2000.  The judge did not expressly state that he would have found the appellant to be a persistent offender as would have been required by section 100(2)(a) of the 2000 Act, but would have been fully justified in doing so.  The judge said that he was "regrettably" driven by the facts of the case and by the opinions of Mr Halstead and the authors of the pre-sentence report to the conclusion that there was a significant risk of serious harm to members of the public likely to be occasioned by the commission of further similar offences.  He therefore imposed a sentence of detention for public protection.
7.	Mr Sullivan submits that he should not have done so; that the reference in the reports to pathological fire-setting was not a sufficient foundation for the finding of dangerousness; and that he was sentenced on the basis of observations that did no more than raise a possibility of serious risk and not a significant risk.  We do not agree.  On the material before the judge and before us, he was right to conclude that this appellant did pose a significant risk of serious harm to members of the public occasioned by the commission of further specified offences.  That conclusion is justified by the nature and number of offences, as well as by the observations of the authors of the reports.  
8.	The judge did not in terms consider sections 226(1) and 228(1) to (4)(a) of the Criminal Justice Act 2003, which provide:   
"S 226 
 (1) This section applies where-     

(a) a person aged under 18 is convicted of a serious offence committed after the commencement of this section, and 

(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences."  
"S 228 
 (1) This section applies where-     

(a) a person aged under 18 is convicted of a specified offence committed after the commencement of this section, and 

(b) the court considers-   

(i) that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences, and 

(ii) where the specified offence is a serious offence, that the case is not one in which the court is required by section 226(2) to impose a sentence of detention for life under section 91 of the Sentencing Act or by section 226(3) to impose a sentence of detention for public protection.       
 (2) The court must impose on the offender an extended sentence of detention, that is to say, a sentence of detention the term of which is equal to the aggregate of-     

(a) the appropriate custodial term, and 

(b) a further period ("the extension period") for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences."  
Subsections (3) and (4) provide that the appropriate custodial term must be at least 12 months and the extension period in the case of a violent offence (which arson is) must not exceed 5 years.
9.	The omission is surprising in otherwise careful sentencing remarks and suggest that the judge may have overlooked the possibility of imposing an extended sentence.  In the case of a serious offence committed by a very young offender, the sentencing judge should ordinarily always do so, as this court remind itself in Lang [2006] 2 Cr App R (S) in paragraph 17(vi) and (vii): 
"(vi) It is still necessary, when sentencing young offenders, to bear in mind that, within a shorter time than adults, they may change and develop.  This and their level of maturity may be highly pertinent when assessing what their future conduct may be and whether it may give rise to significant risk of serious harm."  
 (vii) ... in relation to a particularly young offender an indeterminate sentence may be inappropriate even where a serious offence has been committed and there is a significant risk of serious harm from further offences: see for example Dean."
10.	The appellant was a particularly young offender.  He was only 14 when the offence was committed and when he was convicted.  There was a possible indication that he was changing and maturing.  He committed no offence, let alone any serious or specified offence between his arrest on 9 September 2005 and his sentence just over a year later.  In our judgment, this was a case for the imposition of an extended sentence, not an indefinite sentence.  The nature of the offences, serious as they were, require a long extension period.  The maximum is 5 years.  The custodial term imposed by the judge was fully justified.  Translated into the custodial element of an extended sentence, that is 2 years' detention.  We therefore quash the sentence of detention for public protection and substitute an extended sentence of 7 years made up of a custodial term of 2 years and an extension period of 5 years.  To that extent this appeal is allowed.