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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Owen, R. v [2009] EWCA Crim 2259 (27 October 2009) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2009/2259.html Cite as: [2009] EWCA Crim 2259 |
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
Lord Justice Hughes
MR JUSTICE TOMLINSON
MR JUSTICE MACKAY
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JASON OWEN![]() |
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Miss Sally O'Neill QC appeared on behalf of the Crown
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Owen
does not challenge the six year basis for the sentence. He contends only that there was no proper basis for concluding that he represented a significant risk of causing serious harm to the public through committing more specified offences in the future.
"In taking a 15-year-old girl and your own children into a situation that you must have realised was laden with problems, you demonstrated a very severe distortion in your capacity to recognise and think through what was going on around you..."
That, if we may respectfully say so, is undoubtedly true. It is a mark of no little irresponsibility in this defendant. It is not, however, as it seems to us, certainly by itself, any indication of a significant risk that he would cause serious harm in the sense that the statute uses it, in future, by committing further specified offences. What might be relevant, if there were elsewhere sufficient evidence of significant risk, is that irresponsibility is one of his characteristics. But those who are irresponsible and those who are guilty of distorted thinking are, it is trite to say, not necessarily also dangers of death or serious personal injury.
"You ignored Peter's needs, the needs of a child obviously at risk, preferring instead to shield yourself and your entourage from discovery..."
That is also certainly true. It shows, as it seems to us, that the defendant is somewhat self-centred; perhaps rather weak. Again, however, it is not a sufficient indication of future offending, let alone of future offending such as to cause death or serious injury to individuals. Given, as it must be, that past behaviour is some indicator of possible future behaviour, it does not seem to us that to say that this man failed to protect Peter, as to his shame he undoubtedly did, means that there is not just some but a significant risk that he will therefore occasion serious personal injury to somebody in the future.
"The crown's facts as revealed through information I have obtained from agency records details that MrOwen
was on 12th March 1999 asked to move to temporary accommodation with his four children and wife, this whilst the local authority made inquiries about an allegation of harassment. The
Owen
family, expecting to be moved, was advised that they would in fact have to stay where they were for a while longer. On 20th March 1999 a neighbour saw smoke coming from the premises they had moved from, and reported the matter. The purpose of setting the fire was to ensure that he and his family were not placed back there. My understanding is that about £5,000 worth of damage was done..."
In the following paragraph the probation officer describes the building in question as having been a "multi-occupancy dwelling". If it had been that would no doubt have increased the risk, although the risk is necessarily there in any offence of arson. What he had done was to set fire to some newspapers in the sitting room and leave the house unoccupied.
"... you set fire quite deliberately to your temporary housing... You set fire to it in desperation. It is a serious thing to do. Any arson is a serious matter. The dangers of fire, particularly when set in a dwelling-house are well-known. This can only be dealt with by a custodial sentence. At the same time I regard it as a one-off in stressed circumstances. I don't regard you as a fire raiser and I consider the risk of you committing a similar offence is very low."
It is apparent that whatever other information the author of the pre-sentence report before the judge on this occasion may have had, he cannot have had that. We have also seen the psychiatric report which was available on that earlier occasion. It fully justified the conclusions of the judge which we have just set out. This defendant at that stage demonstrated what was reported to the judge as a convincing attitude to change and a determination to abstain from illegal drugs in the future. No court can fail to know that such protestations are often made. In this case the defendant seems to have managed to justify them.
"My concern would be that having demonstrated an attitude of obliviousness by his not doing that which he should have done, renders him liable (sic) of doing the same thing again, should such unusual circumstances repeat themselves."
A little later he said this:
"... my overriding observation is that MrOwen has the capacity to behave in a way that suggests future serious offending, its motivation and occurrence is though difficult to predict. It seems that he has the ability to do random, possibly drug driven things and become dangerous to those around him when he is set on a single minded course of behaviour."
And at the end:
"My main concern is that he unwittingly has the potential to cause serious psychological if not physical harm to others, and has the capacity to offend seriously in random ways that are difficult to predict."
Those were, taken at their highest, very tentative expressions of future risk. To say the man has the capacity to offend again is not the same as saying he is at significant risk of causing death or serious personal injury.
"Outside of the confines of the present case, all the people I have spoken to, including the family social worker, have seen no evidence written or otherwise of him being violent."
His present offence is deeply unpleasant because a completely innocent child whom he could have protected was not protected by him against harm by others. He displays a willingness to deceive, in particular the father of his girlfriend, which is unattractive. But to translate that into a significant risk that he will himself in the future commit offences involving death or serious personal injury to the public is, on the material which was available to the judge and is available to us, simply a step too far.