REGINA v FARIS UDDIN

A statutory minimum custodial sentence for a repeat weapon or bladed-article offence may lawfully be suspended for an adult offender where the statutory availability rules are satisfied. R v Whyte was made per incuriam and should not be followed. The court must first decide whether the Sentencing Code, section 315 requires custody, and then whether suspension is available. Suspension will be rare because it may undermine the punitive and deterrent purpose of the minimum sentence. Youth and maturation remain relevant to sentence length. The Court of Appeal may find a reference well-founded yet decline to increase sentence where subsequent progress makes an increase unfair.

Following convictions for robbery and possessing a bladed article in a public place, the offender was sentenced by the Crown Court at Wolverhampton to two years’ detention in a young offender institution for robbery and six months concurrently for the bladed-article offence. Both sentences were suspended for two years. The Attorney General referred the sentence as unduly lenient under section 36 of the Criminal Justice Act 1988.

The central issues were whether the minimum sentence under section 315 of the Sentencing Code could lawfully be suspended, whether suspension was appropriate, and whether the court should increase the sentence in light of the offender’s progress since sentencing.

Reference and sentence. Leave to refer was granted. The sentencing was unduly lenient, but the court exercised its discretion, by a narrow margin, not to increase or vary the sentence. All aspects of the sentencing therefore remained unaltered.

1. For an adult offender, the minimum custodial sentence required by section 315 of the Sentencing Code may lawfully be suspended if the statutory requirements governing the availability of a suspended sentence are met. Sections 264 and 277 prescribe requirements concerning the term or aggregate term, but do not otherwise exclude sentences imposed under section 315. Section 289 treats an inchoate suspended sentence as a sentence of detention in a young offender institution or imprisonment for the purposes of all enactments. Parliament could have created an exception but did not. The contrary decision in R v Whyte [2018] EWCA Crim 2437, [2019] 1 Cr App R(S) 35 was made per incuriam and should not be followed.
2. The court must first decide whether section 315(2) requires an appropriate custodial sentence, and only then consider whether that sentence can be suspended. Although lawful, suspension will rarely be appropriate because it may undermine the punitive and deterrent purpose of the statutory minimum. The non-suspendability of a detention and training order for an offender under 18 reflects the different sentencing approach applicable to that age group. The court expressed a provisional view that different considerations may apply where particular circumstances make custody unjust under section 315(2), but did not decide that issue.
3. The sentencing judge correctly applied the Sentencing Council’s Imposition guideline but failed to give sufficient weight to the punitive and deterrent purpose of section 315. Suspension of the six-month sentence for the bladed-article offence was therefore inappropriate. The weapon was produced when its handle was shown, placing the robbery in category A3. The offender’s age, immaturity and subsequent maturation justified a significant reduction, but the total sentence could not properly have been less than 30 months and could not have been suspended.
4. The discretion not to increase a sentence on an Attorney General’s reference was confirmed in Attorney General’s Reference No 4 of 1989 (1989) 11 Cr App R(S) 517. Subsequent events may make an increase unfair. The offender’s compliance, lack of further convictions, employment and apprenticeship prospects justified exercising that discretion in his favour.

The Crown Court record was directed to be corrected so that the sentences were recorded as detention in a young offender institution and the deprivation order as made under section 153 of the Sentencing Code.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, found the sentence unduly lenient, but declined to increase or vary it. [2022] EWCA Crim 751
• Crown Court at Wolverhampton: On 9 February 2022, imposed concurrent sentences of two years’ and six months’ detention in a young offender institution, both suspended for two years.