No: 200405609/A6 
Neutral Citation Number: [2005] EWCA Crim 69
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 12th January 2005
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MR JUSTICE MITTING 

MR JUSTICE WALKER 

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

ATTORNEY-GENERAL's REFERENCE NO 119 OF 2004    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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MR J REES appeared on behalf of the ATTORNEY GENERAL 
MR C ROW appeared on behalf of the OFFENDER
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J U D G M E N T
1.	THE VICE PRESIDENT:  The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer sentences said to be unduly lenient.  We grant leave.
2.	The offender was born in February 1978 and so is now 26 years of age.  On 6th August 2004 she pleaded guilty to one offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act, to two offences of causing grievous bodily harm, contrary section 20, and to two offences of assault occasioning actual bodily harm, contrary to section 47.  She also asked for 23 further offences of assault occasioning actual bodily harm to be taken into consideration.
3.	On 6th September 2004, she was sentenced by Mr Recorder Stewart-Smith QC, at Bristol Crown Court, to 4 years' imprisonment for the section 18 offence, and to concurrent sentences of 16 months' imprisonment in relation to each of the section 20 offences and 6 months' imprisonment in relation to each of the section 47 offences.  The total sentence was therefore 4 years' imprisonment.
4.	The facts were these.  On 29th November 2003 the offender was barred from a public house in Bristol after she had been involved in a fight with another woman.  Despite that ban, she returned to the public house on 7th December 2003 with a hammer in her shoulder bag.  The hammer was discovered.  The offender was led from the premises and she was reminded that she was barred from them.
5.	On 14th December 2003, in the early hours of the morning, there was a party attended by about 150 people being held in the back room at the public house, in order to celebrate the birthday of the landlady.  At about 1.30 in the morning the offender went to the public house.  This time she had with her a cold cream pot 4 inches high and 2 inches in diameter filled not with cold cream but with corrosive fluid, which was a household cleaning product used for unblocking drains and consisted of 96% sulphuric acid.  The offender having been at the party for some minutes, her presence was observed and the staff at the public house were told.  Thereupon she was approached by Mark Forbes, who was the son of the landlady.  He reminded her that she was banned and asked her to leave.  Another man tried to coax her out of the building but she refused.
6.	Mr Forbes took her hand and led her to the exit.  She did not put up any resistance.  He released her on the pavement and went back inside the public house.  As he turned to close the door behind him, the offender pulled out the pot of acid, unscrewed the lid and threw the contents at him with two deliberate movements when she was about 4 feet away from him.  The acid, unhappily, hit not only Mr Forbes, but no less than 27 other people who were in the vicinity.  All those hit experienced a painful burning sensation and some attempted to douse themselves with water.  All 28 were taken to the Bristol Royal Infirmary where, because of the numbers involved, the hospital had to implement its emergency plan.
7.	Apart from Mark Forbes, two women received injuries amounting to really serious bodily harm and they were the victims of the section 20 offences to which we have referred.
8.	So far as Mr Forbes, who was the most seriously injured was concerned, he sustained large areas of partial and full thickness burns to the face and left hand. Both his eyes were red and sore. There was a moderate injury to his right cornea which was treated with eye drops.  He will be left with permanent facial scaring.
9.	Miss Duncan, one of the injured women to whom section 20 related, received multiple small burns over the left arm and face and the right arm.  There was a larger burn, measuring 6 x 8 centimetres on the left arm.  The burns were of mixed thickness. She suffered a mild chemical injury to her left cornea which was treated with eye drops.  By reason of this attack, she felt anxious about going out and self-conscious about her injuries. At the time of the sentencing, she avoided wearing tops with short sleeves.  Some permanent scarring was expected, though the final degree of disfigurement was and is not clear.
10.	The other woman, Miss Williams, had severe burns to large areas of her face and smaller burns to her left breast.  Her face will be permanently scarred and she, like Miss Duncan, feels vulnerable and self conscious in public.
11.	The remaining 25 victims suffered a range of relatively less serious burn injuries which caused pain, distress and, in some cases, permanent scarring to the face and other areas of the body.
12.	At 2.25 am the police discovered the offender at her mother's.  It was apparent that she too had suffered serious burn injuries and she was taken to hospital.  She told an ambulance technician that the substance was what she called "D block" used to unblock drains; a half full bottle of that substance was subsequently recovered by the police from her house. Her injuries consisted of an area of full thickness burns involving her left forehead, eyelids, cheek and nose. She had only minor damage to a cornea and there were possible superficial burns to the fingers of both hands.  She was arrested at 2.50 in the morning of 14th December in the process of discharging herself from hospital.
13.	In interview by the police, she said that she had recently been threatened by 'Yardies', with a knife to the throat, because they believed that she had provided information leading to their arrest.  On 1st December 2003, it is common ground that she was the victim of an attack which left her unconscious, that incident having occurred at the same public house.  She had subsequently been told that the people involved were going to throw acid at her.  It was for that reason, she said, that a friend had given her a bottle of D Block and advised her to carry it in order to defend herself.  She had not however been told precisely what it was, nor had she realised it was 96% sulphuric acid or how serious the effects of using it might be.  Her friend had told her the liquid would stun anybody at whom it was thrown, and temporarily blind them for a couple of minutes, which would allow her to get away.
14.	She said, in interview, that she had gone to the public house to find someone to borrow money from because the gas was running out.  She could not explain why she had not gone to her mother's house which was nearer than the public house. Before leaving home she had drunk half a bottle of brandy.  She accepted she had thrown the liquid at Mr Forbes in retaliation for being ejected and she accepted that he was not threatening her. She said she was drunk at the time and did not know why she had done what she had done.
15.	The offender has had a considerable number of operations, including a skin graft to replace one of her eyelids.  She has thick and lumpy facial scaring of a severe nature, which is likely to be permanent and she is likely to require further surgery in the coming years.
16.	On behalf of the Attorney-General, Mr Rees draws attention to what he submits are nine aggravating features.  First, the offender had armed herself with the pot of acid, although the judge accepted that it was carried for defensive purposes against those she believed might be seeking to attack her.  Secondly, she knew that she had been barred, when she went to the public house. Thirdly, the acid was used to inflict serious injury.  Fourthly, the attack on Mr Forbes was wholly unprovoked.  Fifthly, because the acid was thrown in a crowd, many people sustained injuries.  Sixthly, three of those victims sustained serious bodily harm, and had been left, as had others, with varying degrees of permanent scaring. Seventhly, many of the victims suffered psychological harm in the form of feelings of anxiety and self-consciousness.  Eighthly, the offender has previous relevant convictions.  The first of those is on 2nd July 1998 when she was convicted of having a bladed article in a public place and of an offence under the Public Order Act 1986. Those offences related to an incident outside a club when she tried to stab a former partner and police had to use CS gas to disarm her.  The second offence was a conviction on 20th July 2001, for assault occasioning actual bodily harm. That occurred after she had been ejected from certain premises. She retrieved a hammer and used it to strike the forehead of the victim. Some concept of the gravity of that offence can be derived from the fact that the punishment was a community rehabilitation order for 6 months.  She was granted a conditional discharge for 2 years in relation to the 1998 offence.  Ninethly, it is pointed out by Mr Rees that the present offences were committed while the offender was on bail to the magistrates, for an assault in the course of which she had discharged a CS gas canister into the face of a housing support worker.  Apparently, prior to the sentencing which gives rise to the present reference, the magistrates had indicated that they would impose a non-custodial sentence in relation to that offence.
17.	Mr Rees draws attention to seven mitigating features.  First, the absence of premeditation.  Secondly, the offender's ignorance of the precise composition and corrosive capacity of the liquid.  Thirdly, the fact that the offender has sustained serious burns and required skin grafts and has suffered permanent scarring and disfigurement.  Fourthly, she pleaded guilty in accordance with an indication given at an early stage in the proceedings.  Fifthly, she has expressed remorse for her actions.  Sixthly, she has had to cope with a number of unhappy events in her life, in particular, apart from the divorce of her parents, the unlawful killing of her brother, in 1996, which was the trigger for depression and alcohol abuse.  Indeed, since that time she has been diagnosed as suffering from, apart from depression, narcolepsy, that is uncontrollable episodes of sleep, with catalepsy, that is sudden muscular weakness affecting the whole body. Finally, Mr Rees draws attention to the matters which were disclosed to the judge in chambers of which we have a transcript.
18.	The submission made by Mr Rees is that a sentence of 4 years was unduly lenient, in that it failed to reflect the gravity of the offences, the need to deter the offender and others and public concern about offences of this kind.
19.	Mr Rees draws attention to three authorities: R v Grant 8 Cr App R(S) 4, R v Radford 8 Cr App R(S) 61 and Attorney-General's Reference No 3 of 2000 [2001] 1 Cr App R(S) 92.
20.	Mr Rees submits that those authorities suggest that a sentence of at least 5 years should have been imposed in the court below, following the plea of guilty and that having regard to the number of people injured by the offender's conduct, as we have described, the sentence would more properly have been of the order of five-and-a-half years to 6 years in the court below.
21.	On behalf of the offender, Mr Row concedes that 4 years was a lenient sentence. It was not, he submits, an unduly lenient sentence.  He draws attention, in relation to the authorities to which the Court has been referred by counsel for the Attorney-General, to the premeditation which was a feature of each but is absent on the judge's findings from the present case.  Mr Row also points out that there was, in the present case, no loss of vision in the eye of any victim, such as did occur in the case of Radford.
22.	Mr Row, understandably, lays stress upon the severe injuries which the offender herself sustained in this incident.  He stresses the violent attack upon the offender on 1st December 2003, that is to say a mere 2 weeks before this incident, which was being investigated by the police at the time of these offences.
23.	The offender, having been released on bail prior to sentencing, made sensible arrangements for her two children, who are respectively aged 8 and almost 3, to be looked after by her parents.  Her present release date is October 2006.  Mr Row stresses that this is the first occasion on which the offender has been sentenced to custody.  During her year in custody, as is apparent from a variety of reports which are before us, she has used her time productively.
24.	There is before the Court a probation officer's report made in mid-October, which is by no means wholly favourable, but it does appear to have been overtaken by subsequent events.  A report by the CARAT treatment worker at the prison, dated 9th November 2004, speaks of the offender, at first, finding it difficult to explore the underlying issues relating to her alcohol abuse, and the links between that and her angry outbursts.  But she was able to persevere and "as a result has begun to develop a greater insight into her emotions, her behaviour and the effect she has had on others around her." There is also a document, dated 16th November 2004, which contains comments from the Sentence Planning Board, which are of a positive and favourable nature. It is also apparent, for example, from the report of Mr Matthews of 30th November 2004, that the offender has achieved proficiency in relation to adult numeracy and literacy and in relation to IT.  She has also (as perhaps one might expect in her case) on a number of occasions, tested negatively in relation to drugs.  In short, therefore, it can, as it seems to us, properly be said that, during her time in prison, the offender has been making serious attempts to address the problems which the history which we have earlier rehearsed clearly indicates she had.
25.	The sentence which we would have expected to be passed in the court below, on a plea of guilty, would have been of the order of 5 years' imprisonment. It follows that the sentence of 4 years was lenient and, possibly, unduly lenient.  We do not accept that the sentence ought properly, in the court below, to have reached the level of 6 years, which formed part of the submission on behalf of the Attorney.  We say that, in particular, because of the absence of premeditation, and the presence of the serious injuries which the offender herself sustained from her own conduct. Those factors, as it seems to us, would point in the direction of a lesser sentence than 5 years, whereas the large number of victims, had that aspect stood alone, would have pointed in the direction of a sentence somewhat higher than 5 years.
26.	In the light this and the other consideration to which we have referred, in conclusion, it seems to us that, even if this sentence of 4 years were properly to be characterised as unduly lenient, it is not one with which this Court should interfere.  We say this having regard to two matters.  First, because of double jeopardy, that is the offender is being sentenced a second time, so a discount from whatever sentence is thought appropriate would necessarily be called for in this Court; and, secondly, because of the progress which the offender has undoubtedly been making in prison.  We also bear in mind the factor highlighted by the learned Recorder, that, because of the injures which the offender inflicted permanently upon her own face, she will be reminded of these events for the rest of her life.
27.	Accordingly, for the reasons which we have sought to explain, we do not interfere with the sentence passed by the learned Recorder.