Pashias & Anor, R. v

In an unduly lenient sentence reference, assessment of serious psychological harm for guideline categorisation is a dispassionate judicial assessment of the offence’s actual impact. It is not a medical judgment. A sentencing judge’s categorisation will stand if it was open on the evidence, although the seriousness of the offending remains relevant within that category.

Where aggravating features require sentences beyond the suspended-sentence threshold, suspended sentences are unduly lenient. However, after finding undue leniency, the Court of Appeal retains a discretion under section 36 of the Criminal Justice Act 1988 not to increase the sentences. Post-sentence compliance, rehabilitation and the likely effects of immediate custody may justify that course.

Ms Pashias and Mr Waugh pleaded guilty to robbery after assisting in the taking of a laser hair-removal machine from a salon. Ms Pashias falsely claimed to be a police officer, used minimal force against the sole employee, and the employee was locked in the premises after the machine was removed.

HHJ Reid imposed suspended custodial sentences on 24 January 2020. The Solicitor General referred the sentences under section 36 of the Criminal Justice Act 1988, contending that the harm should have been placed in a higher guideline category and that immediate custody was required. The central questions were whether the sentences were unduly lenient and, if so, whether they should be increased.

1. The court granted leave and found both sentences unduly lenient, but declined to vary them. The proper post-trial terms were at least three and a half years’ imprisonment for Ms Pashias and three years for Mr Waugh. After the ten per cent reduction for their late guilty pleas, neither sentence could properly have been suspended.

2. The sentencing judge was entitled to assess harm as category C under the relevant robbery guideline. Although the psychological impact on the employee and the economic effect on the business were grave, the judge had carefully considered whether they met category 1 and his conclusion was open to him. Following R v Chall [2019] EWCA Crim 864, the task was a dispassionate judicial assessment of factual impact, rather than a medical judgment.

3. The judge was also entitled to place culpability in category C. Minimal force was used, which was a feature of lesser culpability, although the offence was a serious example of that category. Planning, the lone employee’s vulnerability, detention, and the pretence of police authority required an upward movement from the guideline starting point. The available mitigation did not outweigh those aggravating features. Mental-health conditions could be relevant both to culpability and sentence, consistently with R v PS, Dahir and CF [2020] 4 WLR 13.

4. Under section 36 of the Criminal Justice Act 1988, the court had a discretion whether to increase an unduly lenient sentence. Applying Attorney General’s Reference (No 4 of 1989) [1990] 1 WLR 41, it gave substantial weight to both offenders’ compliance with their suspended sentence orders, their progress towards rehabilitation, and the particular risks that immediate imprisonment posed to Ms Pashias’ mental health. By a narrow margin, an increase was neither necessary nor appropriate.

• Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court held the suspended sentences unduly lenient but exercised its discretion not to increase or vary them.
• Crown Court: HHJ Reid sentenced Ms Pashias on 24 January 2020 to two years’ imprisonment suspended for two years, and Mr Waugh to 18 months’ imprisonment suspended for 18 months, with community requirements.