Khan, R. v

On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, a sentence may be increased only where it is unduly lenient. That requires the sentence to fall outside the range which a judge, applying all relevant factors, could reasonably consider appropriate. A bespoke definitive sentencing guideline should be used where applicable. In a serious Category 2B robbery in a dwelling, a modest allowance may be made for pandemic prison conditions, but aggravating features, a guilty plea and dangerousness must still be reflected. An extended sentence may be required under the Sentencing Code to protect the public.

The respondent pleaded guilty at the Crown Court sitting at Sheffield to robbery contrary to section 8(1) of the Theft Act 1968 and received 42 months’ imprisonment. The Attorney General sought leave to refer the sentence as unduly lenient. The reference concerned the correct application of the robbery-in-a-dwelling guideline, the weight to be given to pandemic prison conditions, and whether dangerousness required an extended sentence. The central issue was whether the sentence fell outside the permissible range and, if so, what sentence should replace it.

Application granted. The court applied the approach in Attorney General’s Reference (No 4 of 1989) [1990] 90 Cr.App.R 366. Under section 36 of the Criminal Justice Act 1988, the court could increase the sentence only if it was unduly lenient, namely outside the range which the sentencing judge could reasonably consider appropriate after taking all relevant factors into account.

1. The judge should have used the bespoke definitive guideline for robbery in a dwelling. Referring to the domestic burglary guideline was unnecessary and potentially confusing. The offence fell within Category 2B and was above the middle of that category.
2. A post-trial starting point of seven years’ custody was the minimum appropriate in light of the aggravating features and available mitigation. The court was entitled to give modest weight to the effect of the pandemic on prison conditions. After taking that factor, the guilty plea and other matters into account, the minimum custodial term was five years.
3. Having regard to the respondent’s dangerousness, an extended sentence under section 280 of the Sentencing Code was required. A three-year extension period was the minimum necessary to protect the public.

The sentence was quashed and replaced with an extended sentence comprising five years’ custody and a three-year extension period.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, granted leave, quashed the sentence and substituted an extended sentence: [2021] EWCA Crim 335 .
• Crown Court sitting at Sheffield: Following the guilty plea, imposed 42 months’ imprisonment on 7 January 2021.