R v Sami Raja

An abandonment of an appeal or application for leave is a final determination. It can be treated as a nullity only where the applicant did not make a deliberate and informed decision to abandon it. Arguable grounds, including grounds later found to be cogent, do not suffice. Nor does a mistake of law alone. Incorrect legal advice or a lack of instructions may, in all the circumstances, show that the applicant’s mind did not go with the act of abandonment.

Disparity with a co-offender’s sentence rarely establishes error. The appellate question is whether the challenged sentence was wrong in principle or manifestly excessive. Different pleas, mitigation, offences and sentencing circumstances may fully explain different sentences.

The applicant was convicted in his absence at the Crown Court at Southwark of two conspiracies to defraud and offences involving money laundering and criminal property. On 18 January 2019 he received a total sentence of eight years’ imprisonment.

In earlier proceedings, the Court of Appeal granted an extension of time and leave to appeal against conviction, but dismissed the conviction appeal. During that hearing, counsel withdrew the sentence grounds. The issued judgment recorded that the application for leave to appeal against sentence had been abandoned.

The applicant applied to have that abandonment treated as a nullity. His representatives accepted that they had misunderstood the effect of withdrawing the grounds and had no instructions to pursue the sentence appeal at the earlier hearing. If reinstated, he sought leave to argue unjustified disparity with a co-offender and insufficient mitigation.

1. The court treated the abandonment as a nullity and reinstated the application for leave to appeal against sentence. It nevertheless refused leave to appeal.

2. An abandoned appeal or application is treated as finally dismissed or refused. There can be no conditional abandonment or later withdrawal of a notice of abandonment. The applicant must first establish that the purported abandonment was a nullity.

3. Applying the test in R v Medway (1976) 62 Cr App R 85, the question was whether the abandonment resulted from a deliberate and informed decision. The court accepted that counsel did not understand the consequence of withdrawing the sentence grounds and lacked the applicant’s instructions. In those circumstances, the applicant’s mind did not go with the abandonment. The court distinguished that situation from a mere mistake of law, which does not itself justify reinstatement: see R v Smith (Paul) [2013] EWCA Crim 2388.

4. The proposed sentence grounds were unarguable. Disparity was not established by comparing the applicant’s sentence with that of Dosanjh, who had been sentenced by a different judge in materially different circumstances. Dosanjh had a basis of plea, powerful personal mitigation and credit for guilty pleas. The applicant also faced money-laundering offending which did not feature in Dosanjh’s case.

5. The sentencing judge had applied the relevant fraud and money-laundering guidelines on an orthodox basis. She took account of the applicant’s lack of relevant convictions and was entitled to reflect the seriousness, planning, leading role, vulnerable victims and totality of the offending. Delay largely resulted from his departure from the jurisdiction. The eight-year sentence was just, proportionate and neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division) — In the present proceedings, the court set aside the earlier abandonment as a nullity but refused leave to appeal against sentence: [2022] EWCA Crim 650.

• Court of Appeal (Criminal Division) — In a judgment dated 3 February 2021, the full court granted an extension of time and leave to appeal against conviction, but dismissed the conviction appeal. The application for leave to appeal against sentence was recorded as abandoned during that hearing.

• Crown Court at Southwark — On 18 January 2019, following a trial in the applicant’s absence, the applicant was convicted and sentenced to eight years’ imprisonment.