R v James Wheatley-Taylor

This is an application by His Majesty's Solicitor General for leave to refer a sentence under section 36 of the Criminal Justice Act 1988 ("the 1988 Act") which she considers to be unduly lenient. The respondent/offender James Wheatley-Taylor is now aged 36, having been born on 1 October 1989. On 29 May 2025 in the Crown Court at Great Grimsby the offender pleaded guilty to an offence of criminal damage on indictment 17NH1739724. On 13 October 2025 the offender, then aged 36, pleaded guilty upon re-arraignment to counts 1 (intentional strangulation) and 4 (arson reckless as to whether life was endangered) on indictment 17NH0670225. No evidence was offered against him on counts 2 and 3 and a not guilty verdict was entered on those counts pursuant to section 17 of the Criminal Justice Act 1967.

On 3 December 2025 at the Crown Court at Grimsby the offender was sentenced as follows. On count 4, reckless arson, four years' imprisonment and on count 1, strangulation, one year's imprisonment consecutive, resulting in a total sentence of five years. There was no separate penalty for the offence of criminal damage. The judge also made a restraining order for 10 years, together with an order for forfeiture and destruction of cocaine found upon the offender. There was the usual victim surcharge order.

The Solicitor General takes no issue with the total length of the custodial term imposed, namely five years, but says that the judge fell into error by failing to find the offender dangerous and that the sentence was unduly lenient by reason of his not passing an extended sentence.

We take the facts, which are agreed, from the Reference. The offender and the victim, his then partner "V" began a relationship in July 2024. The offender moved in. He was jealous and possessive. On 27 October 2024 the couple went to a pub in Billingham with friends. They had an argument and V left alone. Later that night the offender attended V's flat. He was drunk. She gave him his belongings but refused to let him in. He punched in her windows with his bare hands. V recorded him doing it. The police arrived, arrested him and then bailed him.

After that incident the couple broke up for a while. However, the offender contacted V again in April 2025 and they reconciled. On an occasion between 1 April and 25 April 2025, having been out drinking, the offender went back to V's address. He was drunk and argumentative. He grabbed hold of V's neck with both hands and strangled her for some 40 seconds. She tried to fight him off, to no avail. She could not breathe. Eventually he released her. There was an argument and, blaming it on the drink, the offender left. Later that night he returned, showed her his phone which was smashed and asked if she was happy now. Then he left. V did not see him again until the next morning when he described having spent hours getting more drunk before jumping onto the train tracks. V took pity on him and wanted to help him. They stayed together and she did not report the strangulation at that time.

On 25 April 2025 having been out at a party in Billingham the offender was heavily intoxicated. He got so drunk that he vomited and was asked to leave the party. V did not leave with him but stayed and got an Uber home later, around 10.00pm. Within moments of arriving home, the buzzer sounded at her flat. It was the offender. He was angry. V asked him to go but he would not. She threatened to call the police, but still he stayed.

Eventually she did call the police. Whilst she was on the phone to them she heard the offender smashing things in her bedroom, turning her room upside down and throwing her belongings everywhere before going away quickly. As she looked out of the window to see which way he had gone so as to tell the police, V noticed flickering light coming from her bedroom. She walked in to find a wastepaper basket in the middle of the room with some of her belongings stuffed into it. They were alight. Flames were scorching the side of the wall to her room and a tapestry on the wall itself. She alerted the police with whom she was still speaking. The fire alarm began to sound and the police called the fire brigade. Despite being advised to leave the flat, V tackled the blaze herself as she had pets in the flat and did not want to leave them. She tried to pull the bin out of the room but dropped it in the hallway as it was too hot. Her bedroom looked as though it was on fire. She ran to the kitchen, filled jugs with water and managed eventually to extinguish the flames. Then, using a rag, she succeeded in pulling the bin into the communal hallway. She stamped on the remaining flames and used another jug of water to put out the fire in the bin. On arrival police and fire fighters saw smoke coming from the communal hallway. V was understandably very upset. She named the offender as the man who had set the fire and told police about his strangling her some three weeks previously.

CCTV from the flats showed a man of large build exiting from the communal front door under 10 seconds before the fire alarm began to sound. Police and fire investigators secured the flat as a crime scene and started an investigation. At 6.20am the following morning the offender attended at the flat and was arrested by police who were still there. He was interviewed and answered no comment to all questions asked. Fire investigators prepared a report. The fire was non-accidental. It had been set deliberately. An accelerant had been used to set fire to various items of soft furnishings placed in the metal bin. The accelerant, rubbing alcohol, was found on the side in the bedroom where the fire had been set.

The offender appeared at Teesside Magistrates' Court on 28 April 2025 charged with intentional strangulation and arson with intent to endanger life. No indication was given as to plea. The case was remitted to the Crown Court for trial with a pretrial preparation hearing set for 29 May 2025. The offender was remanded into custody.

On 19 May 2025 the offender appeared again at Teesside Magistrates' Court, this time charged with criminal damage in respect of the broken windows that had occurred on 27 October 2024. There was no indication as to plea, although the Better Case Management form recorded a plea as likely. The case was sent to the Crown Court for plea and trial preparation hearing on the same day as the plea and trial preparation hearing for the other matters. At the plea and trial preparation hearing on 29 May 2025 the offender entered a guilty plea to the offence of criminal damage. Not guilty pleas were entered on the charges of intentional strangulation, arson with intent to endanger life and possession of a class A drug (cocaine). A trial date was set for 13 October 2025.

On the day of trial the indictment was amended to add an alternative count of arson being reckless as to whether life was endangered. The offender pleaded guilty to intentional strangulation and to the lesser offence of arson being reckless as to whether life was endangered. There was no basis of plea. The case was adjourned for sentence and probation were asked to prepare a pre-sentence report.

On 3 December 2025 the offender was sentenced to a total of five years' imprisonment as recorded above. The prosecution formally offered no evidence on the drugs charge and a not guilty plea was entered.

The offender was aged 35 when he committed the offences, 36 at sentence. He had 21 convictions for 31 offences, his first conviction being in 2011 for criminal damage. He had seven previous convictions for criminal damage and two for battery, as well as a number of convictions for theft and failure to comply with court orders. Two of the previous convictions related to a previous partner, being committed in the context of domestic abuse. One was an offence of battery committed on 3 December 2015: the offender pushed his then partner to the floor, slapped her around the face before following her upstairs into a child's bedroom. She was pregnant at the time. He pinned her to the bed and threatened to cut out her unborn child. The other was an offence of criminal damage committed at the same home against the same partner, where the offender attended and caused substantial damage to items in his ex-partner's kitchen.

There was a prosecution note for the hearing, which we have read. We have also seen and considered the victim impact statement from V.

The author of the pre-sentence report recorded that when she met with the offender, he had denied the strangulation and said he could not remember starting the fire. He suggested that V was "trying to mess up [his] life". The report writer highlighted offending against the offender's previous partner which established a pattern of offending. She assessed him as a high risk of causing serious harm to known adults such as the victim and to the general public, concluding as follows:

There was no psychiatric report before the court for sentence.

Counsel were agreed that the arson offence fell into culpability category B and harm category 2 in the applicable Sentencing Council guideline where there is a starting point of four years and a range of two to six years. The judge indicated that the offence was aggravated by the fact that (1) it had been committed on bail, (2) the offender was under the influence of drink or drugs at the time, (3) he had used an accelerant and (4) there was a history of previous violence against V. He said that the sentence before discount would be one of four years and six months, which he reduced to four years applying a 10 per cent discount for plea. The judge recorded that counsel had also agreed that the intentional strangulation offence fell into category A2 where there is a starting point of two-and-a-half years with a range of one-and-a-half years to three-and-a-half years. The judge observed that whilst there were aggravating features "as an act of mercy" he would take two-and-a-half years before discount for plea, taking the sentence down to 27-months. Bearing in mind totality, he reduced the sentence of one of 12 months, ordering it to run consecutively. He ordered no separate penalty for the criminal damage offence.

The judge then turned to dangerousness, saying this:

The judge went on to say that the risk which the offender posed could be managed by a restraining order for 10 years preventing the offender from contacting V.

We can take the arguments made by Miss Husbands for the Solicitor General shortly. The Solicitor General does not seek to suggest that the total sentence of five years is itself unduly lenient, although she suggests that both the individual sentences and the total could well have been higher given the aggravating circumstances which applied. Miss Husbands’ principal complaint advanced at today's hearing is that the judge should have made a finding of dangerousness and that there should have been an extended sentence in his case. The judge's reasons for not making a finding of dangerousness had shown him to have erred. The judge referred to the offending being of a wholly different magnitude, but this was wrong, there was previous serious offending including criminal damage and battery against the offender's ex-partner and the offence of criminal damage against V the previous October. The present offences occurred again in a domestic context. The judge had made no reference at all to the domestic violence guideline which emphasises the need for offences committed in the context of domestic abuse to be significantly aggravated. Finally, Miss Husbands points out that the judge's reference to the length of sentence which the offender would serve was not a factor to be taken into consideration when deciding whether or not the offender was dangerous.

Mr Styles, who appears for the offender today, as he did at the sentencing hearing, submits that the judge properly considered dangerousness and was entitled to apply his own discretion. The fact that the judge did not follow the conclusion of the author of the pre-sentence report did not mean that he fell into 'gross error' as the Solicitor General has suggested. The offender's previous convictions for domestic violence appear to have been isolated incidents and were now of some age, dating from December 2015. He did not receive custodial sentences for those offences at the time. It would be wrong in principle, Mr Styles argued in the Respondent's Notice, to approach every case of domestic abuse or violence on the basis that the offender in question poses a high risk of serious harm to the public at large.

We agree with Miss Husbands that the overall custodial period might well have been higher. The aggravating features of the arson offence would have justified taking a notional sentence after trial well above the starting point in the guideline. Against this there was very little in the way of mitigation, certainly the judge mentioned no mitigation. Similarly with regard to the strangulation offence, where the aggravating features would have merited a sentence well above the starting point given in the guideline. Domestic context alone was a very weighty factor driving the sentence up within the range for both offences, before consideration of other aggravating factors such as drink taken and use of accelerant to start the fire. Having said this, had the length of the custodial term been the only consideration we should not have found the total sentence so far removed from the proper level as to be unduly lenient. But length of sentence was not the only consideration. Of much more significance was the type of sentence given the nature and context of the offending behaviour here.

The event of strangulation in V's own home and for a prolonged period to the point where she could not breathe is of itself a concerning event, made more worrying by the fact that the offender was at the time on police bail for the earlier criminal damage at V's home the previous October. However, in our view even this serious event of strangulation pales when considered next to the arson which followed. The arson was a highly dangerous event. We accept that it was not pre-planned to the extent of the offender bringing accelerant to the scene, but clearly neither was it a spontaneous event. He must have fetched the accelerant, gathered the belongings and sprinkled them before starting the fire. We have noted that there was no psychiatric report. It is worth repeating the point made by this court in the case of Calladine [1975] 1 WLR 411 that in a case of arson a psychiatric report should usually be obtained. In the absence of such a report we think that the experienced view of probation was especially important. Here the report writer was clear in her view that the offender was high risk, not just to V but also to the public generally, as appears from her report. The offender continued to deny responsibility despite having pleaded guilty which did not augur well for the success of future work addressing the reasons for his offending.

In Attorney General's Reference No 4 of 1989 [1989] 11 Cr.App.R (S) 517 at 521, Lord Lane CJ giving the judgment of the court set out the correct approach to references under section 36:

More recently, the Court of Appeal has identified section 36 for the purpose of the avoidance of gross error, the allaying of widespread public concern at what appears to be an unduly lenient sentence and the preservation of public confidence in cases where a judge appears to have departed to a substantial extent from the norms of sentencing: Attorney General's Reference No 132 of 2001 (R v Johnson) [2003] 1 Cr.App.R (S) 41.

We have considered carefully whether a sentence where the custodial element, though not so low as to call for correction under section 36, is nevertheless properly to be characterised as unduly lenient because there has been an error in arriving at the appropriate nature of the sentence bearing in mind future risk. We see no reason why in an appropriate case such an error cannot be corrected by exercise of the court's powers under section 36 of the 1988 Act. There will be some cases no doubt where this court will take the view that the result of such an error has not rendered the overall sentence unduly lenient or where the court, in the exercise of its discretion, will decline to exercise its powers. In our view however the present case is one where we should intervene. We think that the judge erred in deciding not to find this offender dangerous and that the error has resulted in a sentence which falls outside the range of sentences that could reasonably be considered appropriate, having regard to all the relevant factors. The present offences, undoubtedly more serious than the domestic offences this offender had committed before, were not of a different nature. They are more properly to be seen, as the author of the probation report indicated, as a highly concerning escalation and a pattern of like offending. Mr Styles is obviously right in his submission that not every case of domestic abuse will necessarily lead to a finding of dangerousness. Some cases are more serious than others. Each will depend on its facts. Here, however, the offender had not only strangled his partner but shortly after that he had set a fire in her bedroom. His risk to intimate partners had clearly increased very significantly. The arson was particularly worrying - fires being able to take hold and spread so quickly - indicating that the risk of serious harm now extended to involve members of the public more generally. In our view, the five-year determinate sentence which the judge passed was insufficient to deal effectively with the degree of future risk which the offender represented, not least as he was continuing to deny any responsibility for what he had done.

We conclude that the decision not to find the offender dangerous was unreasonable and has resulted in a sentence which is unduly lenient. As we have indicated, we regard the total custodial term as low but bearing in mind the double jeopardy aspect in references like this, we do not propose to increase the overall custodial term. What we shall do is to alter the overall sentence as follows. For the offence of reckless arson, count 4, there will be an extended sentence of nine years comprising a five-year custodial term with a four-year extended licence. On count 1, strangulation, there will be a concurrent determinate sentence of three years. The total custodial element will thus remain at five years but there will be an additional licence period of four years.

There are release implications which we ought to explain to the offender. The offender will serve two-thirds of the five-year custodial period in prison before the Parole Board will consider whether it is safe to release him and if so on what terms. Whether or not they release him at that stage, he will serve no more than the five years in any event. Once released the offender will serve on licence any part of the custodial period which remains and then be subject to an extended licence for a further period of four years, making nine years in all.

For the reasons we have given, we grant the Solicitor General leave to refer the sentence under section 36 of the 1988 Act. We quash the sentence of four years on count 4 and substitute for it an extended sentence of nine years, comprising a custodial term of five years and an extended licence of four years. We also quash the consecutive sentence of one year on count 1, substituting a concurrent determinate sentence of three years. All other sentences and orders will remain the same.

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