R v Umar Abdullah Hamid

A sentence for separate and serious offending is unduly lenient where its commencement direction wholly subsumes it within an existing sentence and leaves the new offending without any meaningful custodial penalty.

A determinate sentence may run consecutively to an extended determinate sentence. The sentencing court must assess whether the total period to be served before release can be considered is just and proportionate to the totality of the offending. The determinate term is not automatically reduced because of the release regime. It may, however, be adjusted where totality requires it.

The Attorney General referred Hamid’s sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient.

At Preston Crown Court, Hamid had received concurrent terms totalling 10 years and 10 months for leading conspiracies to supply class A and class B drugs. The judge directed that sentence to begin on the day of sentence. It therefore ran at the same time as earlier, unrelated sentences, including an extended determinate sentence for rape and other violent offending.

The Reference raised whether the commencement direction was compatible with totality, given that it deprived the drug sentence of any meaningful additional custodial effect.

1. The Reference was allowed. The commencement direction made the substantial sentence for the drug conspiracies entirely subsumed within the earlier sentences. Although the individual drug terms could not be criticised in isolation, that result gave Hamid no meaningful custodial penalty for serious and separate offending. It was therefore unduly lenient.

2. The court applied the established position in R v JD [2017] EWCA Crim 2509 and R v Hibbert [2015] EWCA Crim 507. A determinate sentence may lawfully be imposed consecutively to an extended determinate sentence. The sentencing exercise requires an assessment of whether the aggregate custodial period before release can be considered is just and proportionate to all the offending.

3. R v Hibbert did not require an automatic reduction of the consecutive determinate term to reflect the different release regime. A court may adjust the term if the aggregate custodial period would otherwise be disproportionate, but must not treat such adjustment as automatic.

4. It was appropriate to consider what overall sentence would have been imposed had all the offences been before one court at one hearing. The drug terms had to be reduced for totality, but a significant further custodial term remained warranted. Time spent on remand was taken into account. Double-jeopardy considerations had no meaningful role because Hamid remained far from his earliest release date.

5. The 2022 sentences were quashed. Six years’ imprisonment on each class A count, and five years on the class B count, were imposed concurrently with each other but consecutively to the 2021 sentences. A victim surcharge of £170 was also confirmed.

• Court of Appeal (Criminal Division): Allowed the Attorney General’s reference under section 36 of the Criminal Justice Act 1988 and replaced the concurrent sentence, which had commenced immediately, with concurrent terms running consecutively to the 2021 sentences.

• Preston Crown Court: On 13 April 2022, imposed concurrent terms totalling 10 years and 10 months for the drug conspiracies, directed to commence on that day.

• Preston Crown Court: On 26 February 2021, imposed unrelated sentences including an extended determinate sentence for sexual and violent offending.