Summary of Judgment — Judge Norton

Factual and Procedural Background

The Appellant was indicted for arson alleging recklessness as to whether life was endangered. He pleaded not guilty and a trial was listed. Four days before trial he entered a guilty plea on an amended, lesser count of arson; the prosecution offered no evidence on the more serious count and a not guilty verdict was entered on that count pursuant to section 17 of the Criminal Justice Act 1967. The Appellant was sentenced in The Court to 28 months' imprisonment and appeals that sentence with leave.

The factual basis relied on by the Crown was that, on a hot, dry day, the Appellant lit a bonfire in the garden of a flat after cutting back hedge material. Witness A warned him not to light a fire because of the dry conditions; the Appellant lit the bonfire regardless. The fire spread rapidly to trees, a shed containing a gas bottle, and then to the residential block. No fatalities occurred but all 21 flats suffered extensive damage. Repairs cost in the region of three million pounds; rehousing costs were nearly one million pounds and many households lost possessions, pets died and residents suffered severe psychological harm.

The Appellant was 26 at the time and had two minor, dated convictions. Early psychiatric assessment (Doctor Ghatak) described developmental delay, special educational history, diagnoses including ASD, ADHD, depression and anxiety, learning difficulties and possible psychosis; Doctor Ghatak considered the Appellant unfit to plead under the Pritchard criteria. Subsequent assessments led to a finding that the Appellant was fit to plead with the assistance of an intermediary; an intermediary was appointed.

At sentence (after the guilty plea) a pre-sentence report was prepared; the judge applied the arson sentencing guideline, assessed harm as category 1 and culpability as B1 (medium). The judge treated the lies/blaming of others as an aggravating feature, concluded the harm justified a sentence outside the guideline range, reduced the notional four-year sentence by 15 months for mental disorder/learning disability to 33 months, then applied a 15% reduction for the guilty plea to 28 months. The Appellant appeals that sentence.

Legal Issues Presented

1. Whether the sentencing judge erred in assessing the Appellant's culpability as medium (category B1) rather than a lower culpability category, given his mental disorder and learning disability.
2. Whether the Appellant's attempts to blame others and lies to police constituted an aggravating factor under the Sentencing Council's overarching approach as explained in R v Norris [2024] EWCA Crim 68.
3. Whether the final sentence of 28 months' imprisonment was manifestly excessive or wrong in principle.

Arguments of the Parties

Appellant's Arguments (appeal)

• Primary: The judge was wrong to find medium culpability; Doctor Ghatak's report and the Appellant's vulnerabilities meant he lacked the foresight required for recklessness as to very serious harm and the offence should have been graded as category C (lower culpability).
• Secondary: The judge wrongly treated the Appellant's lies/attempts to blame others as an aggravating factor; relying on R v Norris, attempts to blame should not aggravate where they did not impede investigation or cause adverse consequences to the person blamed.

Prosecution's Arguments

• The prosecution accepted the judge's culpability assessment as open on the evidence and that the available medical material did not require a finding of category C culpability.
• The prosecution agreed with the Appellant on the legal point from R v Norris that, absent adverse consequences to investigation or to the person blamed, attempts to blame should not be treated as an aggravating factor; however, the judge's expressed aggravating finding was not clearly the basis for the sentence uplift, which the judge attributed to the extreme level of harm.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Norris [2024] EWCA Crim 68	Where investigation/trial were not significantly impeded and no person wrongly blamed suffered as a result, attempts to blame another should not be treated as an aggravating factor under the Sentencing Council's general guideline.	The court accepted the principle in Norris and the prosecution's concession that blaming others without adverse consequences should not be an aggravating feature. The court observed that, although the sentencing judge referred to lies as aggravating, it was unclear whether that influenced the uplift; the judge's decision to impose a sentence outside the guideline range was driven by the extreme harm caused.

Court's Reasoning and Analysis

The court examined (and quoted) section 232 of the Sentencing Code 2020 requiring consideration of medical reports and the likely effect of custody on mental disorder where an offender appears to suffer from such a disorder. The sentencing judge had Dr Ghatak's report, the pre-sentence report (which referenced Doctor Ghatak), and an intermediary's report; two other psychiatric reports and a psychologist's report existed but were not disclosed and were not relied on before the court on appeal.

The court noted Doctor Ghatak's report addressed fitness to plead but did not analyze culpability. The pre-sentence report attributed the offending to poor problem solving and consequential thinking, observed the offence was not planned and recorded mental health and drug use as contributory. The judge also had photographic and witness evidence showing the proximity of the fire to combustible structures and unchallenged evidence that the Appellant was warned not to light a fire but proceeded regardless.

On that body of evidence the sentencing judge was entitled to conclude that the Appellant was reckless as to very serious harm to property (medium culpability) and that his culpability was reduced by mental disorder/learning disability but not so substantially as to merit the lower culpability category. The court endorsed the judge's approach to mitigation: a substantial reduction from the notional post-trial sentence was made for mental disorder/learning disability and a further discount applied for guilty plea.

On the lies/blaming point, the court accepted the legal principle from Norris and the prosecution's concession that, absent adverse consequences to the investigation or to a person blamed, such conduct should not be treated as aggravating. The court observed the sentencing judge did refer to blame and lies as aggravating but found it unclear whether any uplift was applied for that reason; instead the judge's conclusion that a sentence outside the category range was required was driven by the extreme harm caused by the fire.

Holding and Implications

APPEAL DISMISSED

Holding: The court dismissed the appeal, concluding the sentencing judge did not err in principle in assessing culpability as medium, had properly considered the Appellant's mental disorder/learning disability and applied substantial mitigation, and was entitled to treat the extent of the harm as justifying a sentence outside the category range.

Implications: The direct effect is that the sentence of 28 months' imprisonment stands. The court did not establish any new legal principle beyond its application of existing statutory guidance and the authority in R v Norris; it affirmed that sentencing judges may, on the evidence before them, find medium culpability despite the presence of mental disorder/learning disability where those conditions do not substantially diminish foresight or responsibility, and that attempts to blame others are not an aggravating feature absent adverse consequences to investigation or to those blamed.