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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Amin, R. v [2020] EWCA Crim 1447 (27 October 2020) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2020/1447.html Cite as: [2020] EWCA Crim 1447

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
REFERENCE BY THE ATTORNEY GENERAL
UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 27 October 2020
		27 October 2020

1. LORD JUSTICE HOLROYDE: In November 2019 Taha Amin, then aged about 18 years 4 months and of previous good character, committed a number of offences including robberies and thefts. He pleaded guilty to all those offences. On 25 August 2020, in the Crown Court at Snaresbrook, HHJ Inyundo imposed concurrent suspended sentences, with a total custodial term of 23 months suspended for 2 years.
2. Her Majesty's Solicitor General believes that total sentence to be unduly lenient. Application is accordingly made, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this Court so that the sentencing may be reviewed.
3. We summarise the offences in chronological order. For convenience only, and meaning no disrespect, we shall for the most part refer to the offender and others by their surnames only.
4. On 11 November 2019 Amin, and a youth who has not been identified, accosted 17-year-old Hamza Uddin outside his college and robbed him of his iPhone, headphones and Apple watch. They accompanied him to four cashpoints and made him withdraw a total of £70, thus emptying his bank account. Both Amin and the other youth made threats to stab Uddin if he did not comply. No knife or other weapon was produced, but the other youth put his hand on something in his pocket, which Uddin believed to be the handle of a knife.
5. On 16 November 2019 Amin and two others, one called Altayeb, approached 17-year-old Muhammed Abdraraheman and 18-year-old Saeed Bakht, took them to a gated area and made them hand over their belongings, telling them that they could "go home safe" if they complied. Abdraraheman was robbed of an iPhone, headphones and £30 cash. Bakht was robbed of his iPhone, a bankcard and £5 in cash. They were both required to assist the robbers to change the PINs and passwords on the phones.
6. Those robberies were immediately reported, and within an hour Amin and two others were stopped and searched by the police. Amin was in possession of Abdraraheman's phone, £25 cash, Bakht's bank card and a small quantity of cannabis. He claimed that he had bought the phone for £50. Altayeb was in possession of Bakht's phone and headphones and £30 cash.
7. In interview under caution, Amin admitted possession of the cannabis for personal use but otherwise made no comment. He was released on police bail. Altayeb, who was 17, was subsequently dealt with in the Youth Court and made subject to a referral order.
8. On 28 November 2019 Amin was in the company of two others, Sofiane Benamra and a youth who has not been identified but appeared to be a Somali. They approached a group of three youths aged 17 and 18. The Somali punched one of them in the face and a fight ensued. Amin hit Safwan Choudhury and continued to hit him when he was on the ground. The Somali pulled out a knife, held it against the stomach of one of the victims and made a threatening remark. Choudhury's phone and wallet were taken. Qaiyif Khaled's phone was taken. The police were called and saw Amin discarding some of Choudhury's property.
9. Amin was arrested later that day. In interview he made no comment. He was released on police bail.
10. Benamra, who was 19, was later dealt with in a magistrates' court for theft and a Public Order Act offence. He was sentenced to a community order with 100 hours' unpaid work.
11. On 22 January 2020 Amin was arrested for the robbery of Uddin on 11 November. He was charged and remanded in custody. Postal requisitions were subsequently sent in relation to the other offences.
12. The 11 November robbery and the associated four offences of fraud relating to the cashpoint withdrawals were charged on indictment T20200101. Indictment T20207559 charged the two offences of robbery and possession of cannabis on 16 November 2019. In relation to the events of 28 November 2019, Amin pleaded guilty in the magistrates' court to two offences of theft from the person and an offence of assault by beating. He was committed to the Crown Court for sentence under case number S20200214.
13. Amin entered early guilty pleas to all the offences charged on the two indictments. It was however necessary for there to be a Newton hearing in relation to the robbery on 11 November. The judge heard evidence from Uddin and Amin. He was satisfied that Amin had threatened to stab Uddin if he did not hand over his watch, and that the other robber had also threatened to stab Uddin and had been holding something in his pocket which Uddin believed to be a knife.
14. At the time of the offences Amin was living with his mother, stepfather and younger brother. Having been arrested on 22 January 2020, he was in custody for about 7 months before the sentencing hearing on 25 August. He had no previous convictions, cautions or reprimands. He had written a letter of apology to Uddin and a letter to the judge in which he expressed his remorse and said that the period of remand in custody had made him realise what he wanted in life. He also mentioned the fact that he had not been seeing his natural father at the time of the offences. His girlfriend had written a supportive letter in which she said, amongst other things, that a change had come over Amin when he found that his father was in prison.
15. The judge was assisted by a pre-sentence report which specifically addressed the offences on 11 and 28 November. He did not think it was necessary to obtain a further report specifically addressing the 16 November offences. The author of the report assessed Amin as immature. She noted that at the time of the offences Amin had family and money problems. He had left school but had been unable to obtain either work or a place at college. A lack of constructive activity had led to him falling in with a bad crowd and abusing cannabis. He had offended partly in order to fund his cannabis use. However, after the short period of offending, he had reflected on his behaviour and distanced himself from those with whom he had been associating. In the view of the author, he was motivated to change and had made changes in his life-style before he was arrested. Support with developing his problems solving and consequential thinking skills would reduce the risk of further offending. He could be safely managed in the community. The author therefore recommended a community disposal with a number of requirements.
16. There were victim personal statements before the court from Uddin, Abdraraheman, Bakht and Khaled. All expressed their fear at the time of the offences and their continuing anxiety and wariness as a result of being the victims of these offences.
17. The judge heard submissions as to the application of the relevant sentencing guidelines. He concluded that the 11 November robbery was a category 2B offence, with a starting point of 4 years' custody and a range from 3 - 6 years. He did not specify a category for the  November robberies, but it seems likely he accepted the prosecution submission that they were category 2C offences, with a starting point of 2 years' custody and a range from 1 - 4 years. The 28 November thefts were category 3B offences under the theft guideline, with a starting point of a high level community order and a range of up to 26 weeks' custody. The judge allowed full credit for all of the guilty pleas except that in relation to the 11 November robbery. In the light of the Newton hearing, he reduced the credit for that plea to 15%.
18. In his sentencing remarks the judge noted Amin's youth and previous good character. He noted that all of the offending had taken place in a period of just over 2 weeks, and that there had been no offending in the period between the last offences on 28 November 2019 and Amin's arrest and charge on 22 January 2020. He asked himself whether Amin had realised the error of his ways and said that he was prepared to give him the benefit of the doubt. He referred to the pre-sentence report and to the author's assessment that the probation service could work with Amin to prevent further offending. He said that he had rehabilitation firmly in mind. He bore in mind that Amin had spent about 7 months in custody on remand, and that at the time he was in custody prison conditions were more onerous than usual as a result of the Covid-19 emergency. He referred to the sentences imposed on the two other offenders, albeit that they had each only been involved on one of the three relevant days.
19. Treating the 11 November robbery as the lead offence the judge imposed the following concurrent sentences, all of which were suspended for 2 years. For the 11 November robbery, 23 months; for the fraud offences on 11 November, 8 weeks on each; for the 16 November robberies, 12 months on each, with no separate penalty for the possession of cannabis; for the 28 November thefts, 20 weeks on each; for the assault on 28 November, 6 weeks. Each of those custodial terms was wrongly pronounced by the judge as a sentence of "imprisonment". By reason of Amin's age, they should have been pronounced as terms of "detention in a young offender institution". For that technical reason the sentences as pronounced by the judge are in any event unlawful.
20. The judge imposed the following requirements of the suspended sentence orders: a rehabilitation activity requirement of up to 20 days, participation in a Thinking Skills Programme for up to 36 days, an electronically monitored curfew between the hours of 8.30 pm and 5.00 am for 4 months, unpaid work for 180 hours and supervision for 2 years. The judge, spelling out to Amin the nature and effect of the orders he had made, required Amin to return to court at 6-monthly intervals for reviews. He reserved to himself the hearing in the event of any breach of the suspended sentence orders.
21. For the Solicitor General, Ms Przybylska submits that the sentencing was unduly lenient. Each of the offences was aggravated by the fact that Amin was acting as part of a group. She acknowledges the mitigating features in each case of remorse, youth and lack of maturity, the nature of the offending which was without significant planning and to an extent opportunistic and the steps taken by Amin in breaking away from his former friends in the period between the last of the offences and his arrests.
22. Ms Przybylska accepts that it was appropriate for the judge to deal with these offences by imposing a sentence on the lead offence which reflected the overall criminality, with shorter concurrent sentences for the other offences. She submits, however, that the lead sentence in respect of 11 November robbery was considerably outside the range set out in the guideline and was in all the circumstances too low, notwithstanding the mitigating factors mentioned. Had a sentence been imposed which properly reflected the categorisation of that offence, the term of custody would have been in excess of 2 years and could not have been suspended. She further submits that the decision to suspend the sentences was, in any event, wrong in principle, arguing that the accumulation of offending was so serious that anything other than immediate custody was outside the range reasonably open to the judge.
23. On behalf of Amin Mr Hussain, who represented him also in the court below, reminds us of the recent decision in the case of R v Manning, indicating that courts can properly take into account the effects of the Covid-19 emergency on conditions in custody. He points out that the reality of much of the time which Amin spent remanded in custody involved being locked in his cell for all but half-an-hour a day and unable to receive any family visits. He highlights the mitigating features to which reference has already been made. He emphasises that the judge expressly stated that he had rehabilitation firmly in mind. The reality under present emergency conditions, submits Mr Hussain, is that for someone in Amin's position, serving a custodial sentence, no courses or programmes are presently available, with the result that custody would achieve no rehabilitative effect at all. He urges this court to conclude that whilst the sentencing may have been lenient, it was not unduly lenient. He also refers to the conduct of Amin since sentence - a matter to which we shall shortly return.
24. We are grateful to both counsel for their written and oral submissions. We are particularly grateful for the focus with which they have succinctly but forcefully made their respective points in argument before us this morning.
25. The judge was, in our view, faced with a difficult sentencing process. The offences of robbery and theft were serious and undoubtedly crossed the custody threshold. Amin threatened to stab one victim and attacked another with his fists. He stole a number of items, and put his victims in fear. We agree with the judge's conclusions as to the categorisation of the offences and the consequent starting points under the relevant guidelines. It was necessary for the judge to reflect the seriousness of the overall offending whilst keeping well in mind the principle of totality.
26. On the other hand, Amin was only a few months beyond the age at which he would have been dealt with in the Youth Court. He was assessed by the author of the pre-sentence report as immature for his age. That is an important factor when sentencing a young adult, and the Sentencing Council's General guideline states that young adults may be less able than their mature counterparts to evaluate the consequences of their actions, to limit impulsivity or to limit risk taking. They are also likely to be susceptible to peer pressure and more likely to take risks or to behave impulsively when in company with their peers. Amin had never before been in any trouble with the police, and all the signs were that he had gone off the rails for a short time but had then put that behind him and turned away from those who had been a bad influence upon him. He had shown what the judge accepted as genuine remorse, was motivated to change for the better and was assessed as being able to respond to the assistance of the Probation Service. He had moreover spent a period of about 7 months in custody on remand, in circumstances which were more than usually difficult. In the light of that powerful mitigation, the judge was right to give weight to the aim of rehabilitation.
27. Difficult though the sentencing process was, it is in our view clear that the seriousness of the offences required a total custodial sentence of a length which could not be suspended. Giving all possible weight to the mitigation, and making every allowance for youth and immaturity, we take the view that the total sentence, after appropriate credit for the guilty pleas, could not be less than 3 years' detention in a young offender institution. A suspended sentence of 23 months was therefore unduly lenient.
28. We then have to consider whether it is necessary for the sentences passed by the judge to be varied. In Attorney-General's Reference No 4 of 1989 [1990] 1 WLR 41, at page 46C Lord Lane CJ stated that even when this court considers a sentence to have been unduly lenient, it has a discretion as to whether to exercise its powers.
29. In addition to the material which was before the judge, we have considered a supplementary report which has helpfully been prepared by the probation service. This shows that in the period of just over 2 months since sentence was passed Amin has attended probation supervision weekly, has not missed any appointments, has engaged positively and is developing a good rapport with his Offender Manager. He has complied with his curfew. He has the advantage of living with his supportive family who are seen as important factors in reducing his risk. There is concern that he is still using cannabis and a concern that he has shown only limited insight into his offending behaviour. Nonetheless, the assessment of the author of the supplementary report is that Amin appears very motivated to engage with all the requirements of his suspended sentence order.
30. We bear in mind that those requirements include significant restrictions on Amin's liberty on top of the significant period of time which he spent in custody on remand. The supplementary report persuades us that he has taken advantage of his good fortune, in receiving a suspended sentence, to demonstrate the positive motivation which will ultimately be for the benefit of society as well as for him. The behaviour demonstrated by Amin in the period since he was sentenced underlines, in our view, the contrast drawn by Mr Hussain between the prospects of rehabilitation under the present sentencing, and the prospects if Amin is required to return to custody.
31. We have come to the conclusion, by a narrow margin, that it is not necessary in the particular circumstances of this case now to send Amin back into custody. This application was undoubtedly correctly brought. For those reasons, we grant leave to refer. We find the sentencing to have been unduly lenient but, in all the circumstances, we decline to vary it.
32. We must however correct the technical error in pronouncing the sentences which rendered them unlawful. We therefore confirm the sentences imposed below as suspended sentences of detention in a young offender institution and direct that the record of the Crown Court be amended accordingly. The respective terms of the suspended sentences, and the requirements made as part of the suspended sentence orders, of course remain the same.