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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 >> Mohamed, R. v [2025] EWCA Crim 235 (25 February 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/235.html Cite as: [2025] EWCA Crim 235

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT LEICESTER
HHJ TIMOTHY SPENCER 33JJ1209824

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

		Royal Courts of Justice Strand London WC2A 2LL
		25 February 2025

LORD JUSTICE SINGH:

Introduction

1. This is an application by His Majesty's Solicitor General to refer a sentence to this Court, under section 36 of the Criminal Justice Act 1988 ("the 1988 Act"), on the ground that it was unduly lenient.
2. On 3 October 2024, in the Crown Court at Leicester, the respondent/offender pleaded guilty to two summary offences which were on a section 51 Schedule and changed his plea to one of guilty to count 1 on the indictment, which was an offence of robbery. On 19 December 2024, at the same Crown Court, the offender was sentenced by HHJ Timothy Spencer KC as follows. For the offence of robbery, there was a sentence of 21 months' imprisonment suspended for 24 months; for the summary offences of driving without a licence, there was no separate penalty and the offender's driving licence was endorsed; for the summary offence of driving without insurance, again there was no separate penalty and his licence was endorsed. An appropriate victim surcharge order was imposed.
3. In brief, the offence took place in the early hours of 24 May 2024, when the offender, along with two other unidentified males, robbed the victim, Malachi Walcott-Denis, as he walked alone in the centre of Leicester. The victim was bundled into the back of a car where he was threatened with a knife. He was stripped of all his valuables including his coat, tracksuit and shoes before being sent on his way with a warning from the group not to return to Leicester.

The Facts

4. The facts are agreed for the purposes of these proceedings and can be taken in more detail from the Final Reference. On 24 May 2024, the victim was visiting Leicester from Birmingham with friends. They had been to a nightclub. At around 3.30 am they left the nightclub and were about to begin their journey back to Birmingham. The victim left his friends to go to a nearby shop to find provisions (specifically alcohol) for the first train back to Birmingham. While the victim was on Lancaster Road, a black VW Golf pulled up alongside him which had three men inside. One of those men was the offender, the other two remain unknown. The offender got out of the vehicle from the driver's seat, another male got out from the rear. The offender and the other man approached the victim before grabbing him by the arms. They dragged him towards the vehicle and then pushed him into one of the rear passenger seats. Once in the car, the men demanded that the victim give them his coat (an expensive Moncler puffer worth around £1300) but he refused to do so. The third male, who remained in the vehicle, was sitting next to the victim in the rear seats. He drew a kitchen knife from his waistband and, using the handle, slapped the victim on the right cheek. The victim relented to the demands of the group to hand over his possessions.
5. The victim had a number of valuable items taken from him, a blue iPhone, AirPod headphones, an iPad, Nike Air Jordan trainers, a Nike tracksuit, a Gucci bag and the black Moncler jacket which also had his birth certificate in it. The men then told the victim to get out of the vehicle. They told him not to come back to Leicester and drove away. The victim flagged down a taxi-driver who dropped him at Euston Street police station. The Golf was observed on CCTV by police parked on Wellington Street outside a nightclub. The CCTV shows the offender with others handling and inspecting the items taken during the robbery.
6. Police attended Wellington Street. They found and detained the offender. The offender was wearing the victim's coat, which had the stolen iPhone in one of the pockets. All of the remaining stolen property was subsequently recovered from the co-defendant or the vehicle. The offender was subsequently identified by the victim during a police identification procedure. The offender was interviewed under caution by the police on 25 May 2024. He answered "no comment" to all questions. He was charged with the relevant offences later that same day.
7. On 27 May 2024, the offender appeared before Leicester Magistrates' Court. According to the court extract he either gave no indication or a not guilty indication in respect of all charges.
8. On 15 July 2024, the case was listed for a plea and trial preparation hearing at Leicester Crown Court. Neither the offender nor his co-defendant were arraigned. The case was adjourned until 23 July 2024. Judge Rebecca Herbert, who presided over the hearing at that time, recorded on the Digital Case System that "the solicitors have not been to see these defendants since their remand. Counsel asked for a short adjournment so this could occur albeit they had fully advised the defendants."
9. On 23 July 2024, the offender was arraigned. He entered a not guilty plea to count 1. The two matters sent via section 51 of the Crime and Disorder Act 1988 were not put. A trial date of 18 November 2024 was fixed. Subsequently, on 3 October 2024, the case was listed For Mention. At this hearing the offender was rearraigned on count 1 and the section 51 matters were put to him. He now entered guilty pleas to all offences.

Sentencing Process

10. The offender was born on 13 January 1998. He is now 27 years old. He has two previous convictions for five offences. His most recent conviction was on 11 October 2023. He has a previous conviction for robbery dated 11 July 2018 at Leicester Crown Court. On that occasion, having pleaded guilty, he was sentenced to 18 months' remand to a young offender institution suspended for 24 months, with an unpaid work requirement and a rehabilitation activity requirement.
11. The maximum sentence for the offence of robbery is life imprisonment. The Sentencing Council has issued a Definitive Guideline for Offences of Robbery - Street and Less Sophisticated Commercial with effect from 1 April 2016. As is common with such guidelines, this requires the sentencing court to consider both harm and culpability. There was no dispute in the present case that culpability fell into category A "high culpability" because of the production of a bladed article to threaten violence. In fact, as we have described, there was a minor use of the knife in this case when pressed against the victim's cheek.
12. There was a dispute before the sentencing court as to the category of harm. Category 1 in the guideline, so far as relevant, relates to serious physical and/or psychological harm caused to the victim. Category 3, so far as relevant, relates to no/minimum physical or psychological harm caused to the victim. Category 2 is defined not inclusively but by way of exclusion because it provides that it covers other cases where the characteristics for categories 1 or 3 are not present. If a case falls within category 2A the guideline recommends a starting point of 5 years' custody, with a category range of 4 to 8 years' custody. If a case falls within category 3A, the guideline recommends a starting point of 4 years' custody and a category range of 3 to 6 years' custody.
13. The sentencing court had before it a victim personal statement dated 26 July 2024. In that statement, the victim noted that, after the incident, he had moved away from the Midlands to London, to escape what had happened. He had been unable to sleep but slept slightly better now that he was in London. He had to give up his warehouse job in Leicester. He was now unable to see his family as much as they were based in the Midlands. He felt unable to travel to Leicester to see his friends. His daily life had been impacted as he felt vulnerable every time he left his house.
14. There was also a Sentencing Note from the prosecution, in which the prosecution submitted that the robbery ought to be categorised as a 2A offence. The defence submitted that harm should be categorised as falling into category 3 on the basis that the victim essentially said that he was not injured and he felt okay afterwards.
15. In his sentencing remarks the judge identified the applicable guideline. There was no issue as to culpability, as we have said, and the judge found that culpability fell into category A. So far as harm was concerned, he regarded that as falling somewhere between categories 2 and 3. Doing his best to apply the guidelines the judge concluded that the case fell somewhere between the higher category, bottom of the range of 4 and slightly lower category, bottom of the range 3. He said this was not a precisely arithmetical exercise. He continued that by the time he had factored in the mitigation, which was essentially that the offender was young, whilst he had a conviction it was a long time ago and various other matters which he had outlined, he could come down to a figure of 28 months as the notional sentence after trial. The judge then applied a one-quarter discount for the guilty plea, which brought the sentence down to the 21 months which we have mentioned earlier. Accordingly, that fell within the range which the judge noted could be suspended which is what he then did. In the course of his sentencing remarks the judge made reference to various other reasons why he took the course which he did, to which we will return later in this judgment.

Submissions for the Solicitor General

16. On behalf of the Solicitor General Mr Martin submits that:
17. The judge took a starting point for the offence that was too low. The offence should have been categorised as a category 2A offence under the relevant guideline. It follows that the judge should have taken a notional starting point of 5 years' custody before any uplift for aggravating factors.
18. In any event, Mr Martin submits the judge failed to follow through his own initial finding in two respects. He complains, first, that the judge had actually made a finding of fact as to the impact on the victim by reference to the victim personal statement.

Mr Martin submits to this Court that that finding necessarily should have led to the conclusion that the offence fell within category 2A harm. Alternatively, even if that is not right, Mr Martin submits that the judge failed to follow through the logic of his own view that that case fell somewhere between categories 3 and 2, so as to suggest a starting point between 4 and 5 years' custody.

19. Mr Martin submits that, in balancing the aggravating and mitigating features, the judge failed to afford the aggravating features of the case sufficient weight whilst placing reliance upon mitigating features which were either minor or simply irrelevant.
20. Mr Martin submits that the judge compounded his errors by reducing the sentence by 25 per cent for the guilty plea when it ought to have been no more than 20 per cent, given the relatively late stage at which it was entered. In those circumstances, Mr Martin submits that the appropriate sentence ought to have been significantly longer than the range of sentences that can lawfully be suspended, that is a maximum of 2 years. He submits that the total sentence did not adequately reflect the seriousness of the offending in this case and was clearly outside the range of sentences which a judge, applying their mind to the relevant aggravating and mitigating factors, could reasonably have considered appropriate. The sentence was accordingly unduly lenient.
21. In that context Mr Martin submits that there were the following aggravating features present in the case:
22. The previous conviction for robbery in 2018.
23. There was group offending against a sole victim.
24. The victim was a lone individual targeted late at night.
25. There was targeting of high value goods.
26. The detention of the victim in a vehicle.
27. By contrast, Mr Martin submits the mitigating features relied on by the judge were either marginal or irrelevant:
28. The offender's age was 26 at the time of the offence. Sentencing guidelines usually envisage a reduction on grounds of age may be appropriate for offenders aged between 18 and 25. Further, there was no evidence to suggest this offender was immature for his age.
29. A lack of previous convictions but in fact the offender had a previous conviction for a relevant matter, that is robbery.
30. Parity with the co-defendant.

Mr Martin submits the co-defendant's sentence was essentially irrelevant, as he had previously been sentenced for different and lesser offences. No right-thinking member of the public, with full knowledge of all the relevant facts and circumstances, could consider that something had gone wrong with the administration of justice had the offender received a significantly higher sentence than his co-defendant for a different more serious offence (R v Fawcett (1983) 5 Cr App R(S) 158). Further, the co-defendant received a sentence of immediate custody, in other words a more severe sentence than this offender. The co-defendant was someone called Khalid Aadlan. He was convicted of handling stolen goods as an alternative to the robbery, a charge with which the Crown decided not to proceed, and possession of a bladed article in a public place. Aadlan entered guilty pleas to those offences at the PTPH on 23 July 2024 and was sentenced on 14 November 2024 by a different judge (Judge Head) to consecutive sentences of 24 weeks and 16 weeks' imprisonment respectively, giving a total of 36 weeks' imprisonment.

31. "Tempering" the sentence because the offender was the only person caught by the police provided no mitigation and there is no basis in law for suggesting that it ought to be. It is irrelevant that others were lucky to evade capture.
32. Time spent on remand. While potentially relevant to the decision to suspend the sentence, Mr Martin submits this cannot be relevant to the length of the custodial sentence as it is taken into account through deduction from the overall sentence, in other words it already forms part of the sentence itself.
33. The relatively early guilty plea. Mr Martin submits this was not an additional mitigating factor because it is taken into account in reducing the sentence at step 4 when applying the guideline.
34. Turning to the guilty plea, Mr Martin submits that the reduction was too generous having regard to the time when it was indicated relative to the progress of the case and the trial date. The change of plea came nearly 4 months after the original arrangement and around 6 weeks before the listed trial date. In those circumstances, the reduction should have been no more than 20 per cent.

Submissions on behalf of the Respondent

35. On behalf of the respondent, Mr Short submits that the sentence passed could be regarded as lenient but was not unduly so. He reminds this Court that the sentencing judge is the resident judge at Leicester Crown Court and is a very experienced judge. He submits that the sentence could properly be regarded as falling within category 3 harm, and this was very much a matter of judicial assessment or evaluation for the sentencing court.

Mr Short accepts that there were some aggravating features in this case but does not accept that one of them was the timing of the offence, since that is what made the victim vulnerable and double counting should be avoided. He also submits there is no evidence that the victim or his property were targeted. He submits this was an opportunistic attack.

36. Mr Short emphasises the mitigating factors of the lack of minimal amount of planning, the offender's age, his lack of recent relevant convictions and the fresh start in Bristol with his sister which was available to him upon his release from custody. Further, this was the first immediate custodial sentence the defendant would have received although he acknowledges that he had been in custody. It is submitted by Mr Short that the mitigating factors heavily outweigh the aggravating factors so as to bring the sentence before plea towards the bottom of the range. Further, Mr Short submits that the 25 per cent reduction for a guilty plea, while generous, was not unduly so, given the defendant "broke ranks" and pleaded guilty to the robbery before his co-defendant, who the Crown later decided not to prosecute for the robbery. None of the factors indicating that it would not be appropriate to suspend the sentence applied to this case, the fresh start in Bristol being a realistic prospect of rehabilitation. Finally, Mr Short emphasises that the defendant is still a young man and has now been released from custody. Accordingly, there is the impact of double jeopardy to be considered.

Relevant principles on section 36 of the 1988 Act.

37. The relevant principles which govern this Court's application of section 36 of the 1988 Act are well established and were summarised, for example, in Attorney-General's Reference (R v Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16 at [3]:

"(1) The judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentence.

(2) A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate.

(3) Leave to refer a sentence should only be granted by this Court in exceptional circumstances and not in borderline cases.

(4) Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into gross error..."

38. As this Court also observed in Egan at [4] as long ago as the seminal decision of this Court in Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R 366 at 371, Lord Lane CJ said that, even where this Court considered that a sentence was unduly lenient, it has a discretion as to whether to exercise its powers.

Our Assessment

39. In our respectful judgment, the judge fell into error in all of the four reasons which he gave for taking "a charitable course" in this case. The first reason was that it was not just this respondent who had carried out the robbery and yet he was the one who fell to be punished for it and there had to be some "tempering of the sentence" because he was not alone in offending but was alone in collecting the sentence. This approach was wrong in principle because the fact that not all of the offenders in a joint enterprise are caught does not mean that anyone who is caught and convicted should not receive the appropriate punishment for their offence.
40. The second reason the judge gave in his sentencing remarks was that there was a co-defendant in this case but the prosecution ultimately dropped the case against him. The judge found it "uncomfortable" that the case should have been dropped against the other person in the circumstances in which it was, and that he received a sentence measured in weeks but was never sentenced on the robbery. This compounded the judge's "uncomfortableness" about the fact that only this offender fell to be sentenced.

Again, this was the wrong approach in principle. There was no true parity between the two cases because the other defendant had been convicted of another lesser offence. In any event he had in fact received a sentence of immediate custody where this offender did not.

41. The third reason was the offender had pleaded guilty, but this would be appropriately recognised by reducing the sentence that would have been imposed after trial. The judge further fell into error by giving 25 per cent credit for the guilty plea, when it should not have been any more than 20 per cent, given the relatively late stage at which it was entered. A 25 per cent plea was appropriate for cases in which a plea is entered at the PTPH stage.
42. The fourth reason, and which the judge considered "really tips the balance" is that the offender had already served 7 months in prison. He said that if that did not teach the offender a lesson then it would be difficult to know what would. This again was wrong in principle because the amount of time which a person has served in custody already is to be taken into account at the end of the sentencing exercise. It should not serve to reduce the custodial term which is otherwise appropriate to be imposed in the first place.
43. Overall, we are left with the impression that the judge had become convinced that he should impose a suspended sentence order in this case because he clearly envisaged that there was a real prospect of rehabilitation. This appears to be why he mentioned "the other thing that gives me some hope" which was the opportunity for the offender to make a fresh start in Bristol with his sister and that he might obtain a job there. But the question of suspension could only arise as a matter of law if the appropriate sentence was no longer than 2 years' custody. In our judgment, this was not a sentence that could properly be suspended. If the case had been placed in category 2A, as we have said, the category range is one of 4 to 8 years' custody. Even if this had been placed within category 3A, the category range is 3 to 6 years' custody. It is difficult, with respect, to see how the judge was able to bring the notional sentence after trial down to 28 months, even if he had not erred in other respects. Even if the judge was right in his inclination that the harm in this case fell at the cusp of categories 2 and 3, that would have given rise to a notional sentence of between 4 and 5 years' custody. There were also aggravating factors to be taken into account, even avoiding double counting and there was minimal mitigation, certainly not enough to outweigh the aggravating factors.
44. Although we recognise that sentencing is not an arithmetical exercise, at the end of the day we have reached the clear conclusion that the notional sentence, after trial in this case, ought to have been one of 6 years' imprisonment. The credit due was no more than 20 per cent. The appropriate sentence, applying 20 per cent credit for a plea, should have been 4 years and 9 months' imprisonment.

Conclusion

45. For the reasons we have given, we grant the Solicitor General leave to refer this sentence under section 36 of the 1988 Act, we quash the suspended sentence order imposed and substitute a sentence of 4 years 9 months' imprisonment. The respondent will have to surrender to custody and we direct that the sentence will run from the date that he surrenders to custody. We will now hear counsel as to the practical arrangements.
46. I understand the address which has been suggested is Euston Street police station in Leicester.
47. MR MARTIN: It is. That is based on the address we have for him. I note that in the mitigation put forward it was suggested he was moving to Bristol. I do not know whether that is right or wrong. So that is the address that we have put forward, that is the station we have to put forward relevant to that address. But I am afraid I do not know.
48. LORD JUSTICE SINGH: Mr Short, are you able to help us with two things: (i) which is the appropriate police station and (ii) when can he realistically surrender to custody?
49. MR SHORT: I cannot give a definitive answer to either. I do not know where he is currently living at the moment. I know he has had some contact with my instructing solicitor, would the Court consider directing he surrender to Euston Street by midday tomorrow?
50. LORD JUSTICE SINGH: Yes, we will so direct. Is there anything else? Thank you both very much.