Attorney General's Reference No. 58 OF 2005

Where a sentencing judge accepts a basis of plea that materially conflicts with the prosecution evidence and could substantially affect sentence, the conflict should be resolved. An appellate court considering an Attorney General's reference must nevertheless proceed on the accepted basis if it is not challenged.

Provocative remarks, an offender's traumatic background and psychological condition may mitigate sentence. They do not justify a sentence that fails to reflect an exceptionally grave and sustained violent attack, particularly where the offender uses further violence after the initial assault.

The offender pleaded guilty at Luton Crown Court to causing grievous bodily harm with intent. After an argument with the victim, she poured hot oil over him while he was in bed and then stabbed him in the back. He sustained extensive burns, permanent scarring and impaired mobility.

The Recorder accepted a basis of plea that the offender lost self-control after provocative remarks and used a pan of oil that happened to be available, rather than heating the oil as a weapon. She imposed four years' imprisonment. The Attorney General referred the sentence under Criminal Justice Act 1988, section 36. The central issue was whether four years adequately reflected the seriousness of the offence on the accepted basis of plea.

1. Disposition. The court gave the Attorney General leave to refer the sentence and substituted eight years' imprisonment for the four-year sentence.
2. The court was bound to assess sentence on the basis of plea accepted by the Recorder. It therefore proceeded on the footing that the offender had been provoked by the victim's remarks, lost self-control and used the hot oil because it was available. The court nevertheless observed that the Recorder should have resolved the conflict between that account and the prosecution evidence. The difference between a prepared attack with heated oil and use of an available pan could substantially affect sentence, and the Recorder had a public duty to explore it.
3. The offender's traumatic history, psychological condition and the provocative remarks were mitigating circumstances. However, the response was extreme. After pouring hot oil over the victim and causing devastating burns, she left the room, obtained a knife and stabbed him with real force.
4. The attack and its permanent consequences were exceptionally serious. Although the accepted provocation reduced culpability to some extent, four years did not meet the gravity of the offending. On the accepted facts, no sentence other than eight years' imprisonment was appropriate.

• Court of Appeal (Criminal Division) — on an Attorney General's reference under section 36 of the Criminal Justice Act 1988, the court gave leave to refer and substituted eight years' imprisonment: [2005] EWCA Crim 2721.
• Luton Crown Court — following a guilty plea to causing grievous bodily harm with intent, the Recorder imposed four years' imprisonment.