Hoban, R. v

Factual and Procedural Background

This opinion concerns an application by the Attorney General under section 36 of the Criminal Justice Act 1988 seeking leave to refer to the court a sentence considered to be unduly lenient. The offender pleaded guilty at the Crown Court to arson being reckless as to whether life was endangered, sending an electronic communication with intent to cause distress or anxiety, and breaching a restraining order. The offender was sentenced to a total of three years' imprisonment, with three years for arson and concurrent six-month sentences for the other offences. A restraining order was imposed and a victim surcharge applied.

The offender had a prior relationship with the victim, which ended before the offences. He had previous convictions including assault and breach of restraining orders. After release from prison, the offender resumed contact with the victim but became jealous and possessive, exacerbated by illegal drug use. On 14th February 2020, the offender made threatening communications to the victim, including threats of violence and arson against her family and property.

On the night of 14th February, the offender, intoxicated, set fire to a car on the victim's driveway using an accelerant described as petrol. The fire spread to two other vehicles owned by family members. The fire caused significant damage to vehicles and property, and the offender was arrested at the scene. He pleaded guilty to the offences on 16th March 2020. The sentencing judge had before her victim personal statements, psychiatric and pre-sentence reports, and imposed sentences after considering sentencing guidelines and aggravating and mitigating factors.

Legal Issues Presented

1. Whether the sentence imposed for the offence of arson was unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988.
2. The appropriate application of sentencing guidelines for arson offences committed recklessly as to whether life is endangered.
3. The weight to be given to aggravating and mitigating factors, including previous convictions, domestic context, use of an accelerant, and the offender's mental health and immaturity.

Arguments of the Parties

Attorney General's Arguments

• The sentence for arson was too short given the seriousness of the offence and the presence of multiple aggravating factors.
• The offence fell between harm categories 1 and 2, with a significant to high risk of serious physical or psychological harm and significant damage value.
• Aggravating factors included previous convictions, breach of court orders, use of an accelerant ("petrol bomb"), domestic context, late-night commission, planning, endangerment of multiple people, intoxication, and impact on family and friends.
• Mitigating factors acknowledged were the offender's psychiatric difficulties, immaturity, and determination to address offending behaviour.
• The sentencing judge gave credit for the guilty plea, but the overall custodial term of three years was submitted to be substantially too short.
• Requested leave to refer the sentence as unduly lenient.

Offender's Arguments

• Some aggravating factors relied upon involved double counting as they related to the same underlying relationship breakdown.
• The offender's intoxication was inconsistent with significant planning, though some planning was accepted.
• The offender was immature and suffered from an emotionally unstable personality disorder with depression.
• No history of pyromania and no prior custodial sentences comparable in length to the current sentence.
• The sentencing judge properly applied relevant guidelines and considered all factors; the sentence was within a reasonable range.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully reviewed the sentencing judge’s classification of the offence as culpability category B and harm category 2B under the definitive guidelines for arson. The judge had set a starting point of four years’ custody, adjusted to four and a half years after considering aggravating and mitigating factors, before crediting the guilty plea which reduced the sentence to three years.

The court acknowledged the presence of multiple aggravating factors but also the mitigating factors of the offender’s mental health issues and immaturity. It noted that while some might consider a higher sentence appropriate, the sentence imposed was within the guideline range and reasonably open to the judge.

The court emphasized the legal standard that a sentence is only unduly lenient if it falls outside the range of sentences which a judge could reasonably impose. It found that the sentencing judge had properly applied the guidelines and exercised judicial discretion appropriately.

Consequently, the court concluded that the sentence was not unduly lenient and refused the application for leave to refer the sentence.

Holding and Implications

The court REFUSED the application for leave to refer the sentence under section 36 of the Criminal Justice Act 1988.

The direct effect is that the original sentence of three years' imprisonment for arson, concurrent with six-month sentences for two other offences, stands. No new precedent was established by this decision, and it confirms the principle that appellate intervention on grounds of undue leniency is reserved for sentences clearly outside the reasonable range of judicial discretion.