Court of Appeal dismisses appeal against arson sentence, upholding severity due to high risk to vulnerable residents.

THE COURT OF APPEAL Neutral Citation [2025] IECA 174 Record Number: 2023/275 McCarthy J.

Burns J.

Hyland J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

- AND -

JASON HUGHES APPELLANT

JUDGMENT of the Court delivered on the 28th day of July, 2025 by Ms. Justice Tara Burns.

1. This is an appeal against severity of sentence. On 28 April 2023, the appellant entered a plea of guilty to arson contrary to s. 2(1) and (4) of the Criminal Damage Act 1991. It was agreed that an offence of burglary contrary to s.12(1)(b) of the Criminal Justice (Theft and Fraud Offences)

Act 2001 was to be taken into consideration when sentencing the appellant.

2. On 27 October 2023, the appellant was sentenced to a term of imprisonment of 8 and a half years which sentence was backdated to 9 December 2022 to reflect when the appellant entered custody.

Background

3. Before 6am on 9 December 2022, a fire commenced on the balcony of a ground floor apartment situate in Clondalkin. Thankfully, the female occupant of the apartment was already up and was in the living room when she heard a loud bang and saw a fire on the balcony. She attempted to extinguish the fire with a fire extinguisher but to no avail. The fire began to increase in intensity and suddenly the glass sliding door of the apartment was blown in on top of this female resulting in her being pushed against a wall. The female occupant believed her life was at risk and ran to get her four year old child out of bed and to safety. Her partner, who suffers from a brain impairment, was still asleep in bed. As she left the apartment with her child, she was shouting at her partner to wake up and to get out of the apartment. Having removed their child to safety outside the apartment block, she returned to the apartment to ensure that her partner had heard her and was exiting. He left the apartment with her to safety. She shouted and banged at the doors of neighbouring apartment in an attempt to wake the occupants up and to get them out of the apartment block. The female victim rang the fire brigade who promptly attended at the scene shortly after 6am. By that stage, the apartment was engulfed in flames with the fire travelling into the back of the apartment from the balcony at the front of the apartment. The fire fighters managed to extinguish the fire.

4. The entire contents of this apartment were destroyed and the occupants lost all of their possessions, to include all presents for Christmas. Damage was also caused to the keypad at the main entrance to the apartment block.

In total, the monetary cost of damage was in the region of €80,000 - €90,000.

5. No physical injuries were sustained by any of the occupants of the apartment block. However, the female victim and her partner were extremely shaken by what occurred and have suffered continuing psychological sequalae.

6. CCTV from the apartment block revealed the perpetrator to be the male occupant’s estranged son. In addition, paint from the recently painted balcony was left on his jacket which was subsequently seized by the investigating guards when his house was searched. The appellant was aware of the mental disability his father suffers from.

7. The appellant was arrested and detained for interview that day, but nothing of an evidential nature arose from the interviews conducted with him.

8. The appellant entered an early guilty plea before the Circuit Criminal Court.

Personal Circumstances of the Appellant

9. The appellant was 19 years of age at the time of the offending. He has a diagnosis of ADHD and has a history of mental health difficulties. The appellant had a drug and alcohol dependency from an early age. Issue was not taken by the respondent with an assertion that the appellant had attempted suicide earlier that day and was extremely intoxicated on the night in question. The appellant had 50 previous convictions at the time of sentencing to include relevant previous convictions of criminal damage and arson.

Sentencing Judge’s Determination

10. The sentencing judge pronounced his sentence as follows:-

“[A]t the time Mr Hughes committed this offence he was still very young, he had a very challenging upbringing with many difficulties and many tragedies, he obviously has some serious underlying mental health issues. It seems he's also accumulated quite a number of previous convictions, and in deciding what to do with Mr Hughes, this Court must take that into account. Now, obviously in sentencing any particular individual that comes before this Court, the two principal, I suppose, issues the Court has to deal with is the gravity of the crime and the particular individual that appears before the Court. Now this is a very serious crime. Arson is a very serious crime because the problem with fire, once it starts, nobody knows where it's going to stop. In this case, luckily [the female victim] was awake and alerted the appropriate people, and the fire brigade arrived and people were able to evacuate the building in good time, but if [the female victim] hadn't been awake, there could have been fatalities. There's no guarantee there would have been, but there was a significant chance of fatalities. Now obviously in dealing with Mr Hughes, the mitigating factors identified by [counsel] are the plea of guilty, the expressions of remorse, the fact that he was intoxicated at the time, and severely intoxicated, he raises as a factor this Court should take into account, and to some degree, it must. The fact that he has a long history of mental health difficulties, the fact that at the time he was in the throes of a mental health crisis, and he's also indicated that his very sad upbringing is a matter this Court must take into account and to some degree this Court does take into account. I've had the benefit of a very extensive psychological report and [counsel] has pointed out to me parts of that report and the Court has looked at those parts.

So what to do about him. I think it's a very serious crime, his actions endangered the occupants of this particular apartment and also endangered the lives and health of all other occupants of this complex, it was a reckless act, Mr Hughes provides no explanation why he committed this crime but he did it, so I think if I was to indicate a headline sentence in this case by reason of what he did seriousness I'd say 10 to 12 years at least for him in this case. I think there's mitigating factors that the Court must take into account but he has received chances before and the Court has to take that into account, I think the sentence I'm going to impose upon him, taking everything into account is a term of imprisonment of eight and half years and that's to be backdated to when he went into custody…. I'd say if I was pushed to headline, I'd say 12 years… I've taken into account obviously victim impact reports.”

Grounds of Appeal

11. By notice of appeal dated 28 October 2023 the appellant indicated his desire to appeal his sentence on the following grounds:-

1. “That having regard to all the circumstances of the offence, the headline sentence fixed was too high.

2. That the learned sentencing judge failed to take into account the Appellant’s extreme adverse life circumstances and crucially, that the Learned Judge did not suspend a substantial part of the sentence, under probation supervision and subject to strict conditions targeted at his rehabilitation and reducing the risk of his reoffending.”

The Parties Submissions

12. The appellant submitted that the headline sentence identified by the sentencing judge was too high and should have fallen within the mid range category of offending. The appellant also asserted that the sentencing judge failed to take into account the appellant’s difficult personal circumstances. In addition, it was submitted that the sentencing judge ought to have suspended a substantial part of the sentence to incentivise and facilitate rehabilitation.

13. The respondent submitted that the headline sentence identified was not excessive in circumstances where aggravating factors were present to include the fact that the apartment was part of a property with multiple apartments; the offence occurred at a time when it was highly probable that the occupants of the apartment and neighbouring properties would be asleep; the arson was intentional; and the appellant’s relevant previous conviction for arson. The respondent further submitted that the sentencing judge considered the mitigating factors present and appropriately reduced the headline sentence by three and a half years which was within his margin of discretion.

Discussion and Determination Headline Sentence

14. O’Malley on Sentencing Law and Practice considered the seriousness of the offence of arson and the aggravating features which may present in the commission of such an offence at para 15.41 (3rd edition) as follows:-

“A survey of English appeal court and Irish trial court decisions reveals a fair degree of consensus on the factors that will tend to aggravate an arson offence. At the upper end of the spectrum of gravity are those cases where the offender set fire to a residence (whether his or her own or somebody else’s) as a deliberate act of revenge, knowing that the residence was occupied, that the occupants were likely to be asleep at the time and that the fire might spread to neighbouring residences. The presence of only one or two of these factors may place the offence a little further down the scale.

In People (DPP) v Price and Stanners ([2013] IECCA 1), the applicants were convicted of three offences resulting from the petrol bombing of a house in which there were six occupants at the time.

Each was sentenced to 12 years’ imprisonment for arson. Courts usually pay close attention to the offender’s motive. Starting a fire accidentally or negligently and then failing to summon help, attempt to rescue the occupants or call the fire brigade is also treated seriously, especially where the offender was aware that an occupant of the premises or a neighbouring premises might be seriously endangered as a result. As the English Court of Appeal said in R. v Harding ([2000] 1 Cr. App. R. (S.) 327):

“[T]he court takes a serious view of arson, where life is endangered, albeit not intentionally, because of the propensity of fire to spread rapidly and unpredictably and to cause damage beyond the confines in which the fire began.”

The same court later said:

“[The] starting point for arson with intent to endanger life is in the range of eight to ten years (that would of course be following a trial); and in cases involving reckless arson we would regard the range as rather below that, but the dividing line between the two can be a fine one.”

[…] An arson attack on a non-residential premises may also have serious consequences, leading to people who worked there losing their jobs, or causing other serious disruption where the premises provided some important or essential service to the community.”

15. In DPP v. Goodchild [2002] IECA 232, this Court also noted preplanning to be a significant aggravating factor.

16. In Goodchild, a headline sentence of 10 years imprisonment was found to be within the sentencing judge’s margin of appreciation, although the Court noted that 10 years (in the circumstances of that case) “may be somewhat on the high side”. The offending in Goodchild was planned and consisted of a 29 year-old intoxicated offender (with two previous convictions for criminal damage and a history of alcohol and drug addiction) putting a rag with accelerant through a letter box of a residential house. This occurred at a time when it would have been anticipated that the occupier was asleep.

The door of the house caught fire resulting in damage in the region of €1,500 being caused. The victim escaped through the sitting room window but had re-entered the house on a number of occasions in an attempt to put the fire out by pouring kettles of water on the fire. The victim suffered significant psychological sequalae arising from the offence.

17. Our attention has also been drawn to DPP v. Shannon [2023] IECA 325.

That undue leniency appeal was concerned with four arson offences. Three of the offences (committed for financial gain and revenge) related to vehicles being set on fire outside residential houses. The fourth offence (committed because of a petty grudge) related to a business premises which was entirely burnt out as a result of the fire, causing damage in the region of €230,000. However, on either side of the garage were residential premises occupied by the owner of the garage and his elderly relatives.

Each of the offences had a significant effect on the respective victims, particularly those affected by the fourth offence. The offender in Shannon (who had a history of alcohol and drug abuse and a difficult family background) had three relevant criminal damage convictions. This Court nominated a headline sentence of 6 years’ imprisonment in respect of each of the first three offences and 8 years’ imprisonment in respect of the fourth offence. However, the Court noted that Goodchild was not necessarily of assistance being a review of sentence appeal. It further stated that while an arson attack on a residential premises was not at issue in Shannon, it nevertheless was an aggravating factor that the offences occurred proximate to occupied dwellings. Imposing consecutive sentences, but applying the principle of totality, a term of 10 years imprisonment was pronounced. The appellant submitted that despite the fact that a threat to life arose in the fourth arson attacks in Shannon, a cumulative term of imprisonment of just 10 years was imposed in respect of the four arson offences. It is argued that this sentence is informative of what the appropriate headline sentence should have been in the instant matter.

18. The offending in the instant matter was of the utmost seriousness and posed a substantial risk to life to a number of people to include not only the three occupants of the targeted apartment but also other residents of the apartment block. By sheer chance, the fire started by the appellant was noticed by the female victim who happened to already be up, although it was very early in the morning and at a time when one might have expected the occupants of the targeted apartment and apartment block to still be in bed asleep. Because of unexpectedly being up, the female victim was in a position to get herself, her son and her partner to safety and also to raise the alarm for other occupants of the apartment block. Her chance observation also meant that the fire services were notified at the earliest opportunity and were quickly at the scene. The resulting damage of the arson attack was therefore contained by her actions and the quick response by the fire services.

19. In addition, in terms of aggravating circumstances, the persons within the targeted apartment had a family connection to the appellant to include his father, his father’s partner (the female victim), and their son (the appellant’s half-brother). Furthermore, the effect of the arson offence on them was immense: apart from losing their home and all of their personal possessions, they suffered significant psychological sequalae

20. While the appellant asserts that he was highly intoxicated on the night in question and does not recollect the event, it is the case that within his intoxicated state, the offending was premeditated and intentional: the appellant attended at his estranged father’s apartment; unlawfully trespassed onto a balcony; and commenced a fire which within moments of him leaving the area had taken hold. While the sentencing judge erred in his reference to an accelerant being used (which had not been established on the evidence), the fire was intentionally started and was of a nature that it quickly took hold, caused a loud bang, and exploded the window of the victims’ apartment.

21. The appellant accepts that his motive for starting this intentional and premeditated fire was animosity towards his father.

22. In addition, the appellant has a previous conviction for arson which is a further aggravating feature.

23. We do not agree that Shannon is a relevant comparator. Aside from the fact that that appeal related to an undue leniency appeal and that this Court has regularly stated that undue leniency appeals are of limited value in terms of a comparator in review of sentence appeals, the target of the most serious arson offence in Shannon was a business premises rather than a residential premises. This was noted by the Court when determining the appropriate headline sentence, although the Court found that the proximity of residential premises was an aggravating feature.

24. Goodchild is a relevant comparator having regard to the facts of the case as already set out. However, whilst sharing similar characteristics (a planned arson attack on residential premises, at a time when it would be anticipated that the occupants were asleep), the instant offence displays a number of much more serious features: there were three occupants of the targeted apartment, two of whom required assistance to exit the apartment, namely the child and the male victim who suffers from a brain impairment; the targeted apartment formed part of a block of apartments with the consequent possibility that the fire would spread to other residences placing other lives at risk; and the financial damage incurred was vastly more significant.

25. For these reasons, we are of the view that the headline sentence identified by the sentencing judge of 12 years imprisonment falls within his margin of discretion and does not reflect an error in principle. While the appellant argues that his moral culpability is lessened by reason of the fact that it is asserted he attempted suicide earlier that day (a fact not disputed by the investigating guard, although evidence was not produced in relation to same), we are of the view that this has been accounted for by the sentencing judge who stated that he was having regard to the mental difficulties which the appellant was experiencing on the day of the offending. A higher headline sentence may well have been merited in the circumstances of offending without consideration of the appellant’s psychological trauma.

Mitigating factors/Suspension of Sentence

26. The sentencing judge reduced the headline sentence by three and a half years to reflect the mitigatory factors present, to include the early guilty plea entered. This level of reduction falls within the sentencing judge’s margin of discretion and an error in principle does not arise.

27. With respect to the question of suspending a portion of the sentence to incentivise the appellant’s rehabilitation, an evidential basis did not exist to require the sentencing court to take this course of action. Accordingly, an error in principle does not arise in this regard.

Conclusion

28. In circumstances where we have not upheld any of the appellant’s grounds of appeal, we will dismiss his appeal against sentence.