No: 200503204/A2 
Neutral Citation Number: [2005] EWCA Crim 2721
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 6th October 2005
 
B E F O R E:

LORD JUSTICE LATHAM 

MR JUSTICE NEWMAN 

MR JUSTICE OPENSHAW 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 58 OF 2005 
 
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Computer Aided Transcript of the Stenograph Notes of 
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MR B ALTMAN appeared on behalf of the ATTORNEY GENERAL
MR B CASELLA appeared on behalf of the OFFENDER
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J U D G M E N T 
1.	LORD JUSTICE LATHAM: This is an application by the Attorney General under section 36 of the Criminal Justice Act 1988 in relation to an offender who pleaded guilty on 18th May 2005 to a single count of causing grievous bodily harm with intent at the Luton Crown Court.  She was sentenced by the judge, Miss Recorder Roscoe, to a total of four years' imprisonment.
2.	We give leave to the Attorney General to refer that sentence.
3.	The offence was a dreadful offence and arose out of horrific events on the night of 12th/13th September 2004.  At that time the offender was living with the victim, who was 36 years of age.  Their relationship was a turbulent one.  It is clear that both of their backgrounds had been disturbed.  The story of the offender's background, set out in the papers before us, is bordering on the tragic.  She had a desperately unhappy life before she came to this country from her homeland, where she had been subjected, on the material with which we have been provided, to serious ill treatment by those in her extended family with whom she was living, and had been raped by an uncle.  It was, accordingly, clear from the material that we have that the offender was a person with a significantly damaged personality.  There are psychiatric reports before us which attest to that.  The tragic story is compounded by the fact that the victim and the offender are both HIV positive.  Whatever may be the full circumstances in which that situation arose -- the offender's account is that she was infected by the victim -- both the victim and the offender were aware of their HIV status at the time of the events of 12th September 2004.
4.	On that night the victim had come home late in the evening and there was an argument between the two of them.  In the course of that argument things were said, which were undoubtedly hurtful, by the victim.  He referred to her HIV status, that no one would want her and that she had nothing, but he had children, which was correct, by a previous relationship.
5.	The story thereafter diverged.  According to the victim there was then a significant gap in time during which he left the premises and returned, on two separate occasions, a relative of the offender came to the premises and left, so that the events which gave rise to the charge occurred a substantial period of time after the argument.
6.	The offender's account, on the contrary, was that the argument led almost immediately to her losing her self-control and then grabbing a saucepan full of hot oil, which she had been heating for the purposes of cooking some samosas, and which she then, and this was the common account, poured over the victim while he was lying in bed, he having undoubtedly gone to bed to sleep at that point.
7.	The hot oil caused horrific injuries to the victim.  The description of the burns was that there were 37 per cent mixed depth burns to the victim's face, neck, chest and upper limbs.  After it had happened, he managed to get out of bed.  The offender said, "I am burning you now", left the room and, as to this there was no dispute, returned with a knife which she plunged into his back with such force that, striking, as it did, a bone in his back, it bent.  The description by the pathologist of the force required was that it was a forceful stabbing which only resulted, in the event, in minimal injury because the blade had struck the lumbar spine.
8.	Thereafter, at some point, there is no doubt that the offender, to her credit, called the emergency services.  The precise time scale between those events and the calling of the emergency services is unclear.
9.	The victim was taken to hospital and has since then had to undergo a series of operations and treatments, none of which will ever restore him to normality.  There are substantial facial scars, which have healed with hypertrophic scarring, which gives him an appearance which can only be described as grotesque.  There is substantial scarring over his body, some of which affects his mobility.
10.	That description of what happened that night makes it plain that this was a horrific attack with devestating consequences.  There is no doubt but that if the nature of the attack simpliciter and the injuries that were caused were the sole matters which the Court was considering for the purpose of sentence, a sentence significantly into two figures would, and should, have been appropriate.  
11.	The position is, however, complicated in this way.  Whereas the prosecution case by necessary implication involved the offender having deliberately, because of the time scale, heated up the oil for the purpose of using it as a weapon in the attack, her account was that, provoked by what had been said in the argument, she having lost her self-control, grabbed the pan as an available weapon and used it because it was to hand.
12.	The latter was the basis of plea which the Recorder unhappily accepted, despite the fact that the prosecution disputed it.  The Recorder said that it would not make any significant difference to the sentence.  But there is a substantial difference between the offender deliberately creating a weapon of such horror as hot oil in order to pour it over the victim, which, as we have said, would appear to be the necessary implication from the prosecution's version of the facts here, and her taking hold of the pan, because it happened to be there, as was her account.
13.	Mr Altman on behalf of the Attorney General accepts that we are bound to deal with the matter on the basis of plea accepted by the Recorder, and we will do so.  But it seems to us to be yet another example of the unfortunate difficulties that bases of plea can give rise to in sentencing exercises of difficulty such as this one.  The Recorder should have appreciated in this case that there was such a difference between the prosecution evidence and the basis of plea that the issue needed to be resolved.  And it was her public duty to explore it, however difficult that may have been. 
14.	Returning then to the approach that we should accordingly adopt, we accept the basis of plea, as we have to.  The consequence of that is that we must look at this case on the basis that the offender was subject to the provocation of the remarks made during the course of that argument.  We must weigh those remarks in the light of her background, but also in the light of her response, in order to determine the criminality with which we have to deal.
15.	Whilst we accept the offender's account of what was said to her, and the effect that it had on her in the light of her background and her psychological condition, nonetheless her response was extreme.  The fact is that not only did she take hold of the weapon that was available, that is the pan of oil which she used in the first instance, but not satisfied with that she then left the room and found another weapon, namely the knife, and used it with real violence.
16.	We consider that in those circumstances a sentence of four years' imprisonment simply does not meet the seriousness of what this offender did.  We consider that although the position is, and must be, mitigated to an extent by what was the origin of her loss of control, no sentence other than eight years' imprisonment today is the right sentence for what she did that night.  We, accordingly, substitute for the sentence of four years' imprisonment a sentence of eight years' imprisonment.