R v Yusef Mohamed

In sentencing for multiple offences, the court may adopt the most serious offence as the lead offence and increase the sentence to reflect separate criminality, subject to totality and proportionality. Under the robbery guideline, harm finely balanced between Categories 1 and 2 may properly be assessed at the cusp, with a starting point between the applicable category starting points. Aggravating and mitigating factors must then be weighed without double-counting harm. A sentence may be lenient or merciful without being unduly lenient. On an Attorney General reference, leave should be refused where the sentence represents a permissible sentencing judgment and the court cannot conclude that it crosses the threshold of undue leniency.

The respondent pleaded guilty in the Crown Court at Cardiff to two robberies and one offence of unlawful wounding. The robberies involved following an elderly victim from a casino to her home and forcibly taking her handbag; the second robbery caused significant physical and psychological harm.

On 12 April 2023, the Recorder of Cardiff imposed an overall sentence of four years and eight months, giving full credit for the guilty pleas. The Solicitor General applied under section 36 of the Criminal Justice Act 1988, arguing that the second robbery should have been placed in harm Category 1 and that greater uplifts were required. The central issue was whether the sentence was unduly lenient.

Application refused. The court concluded that the overall sentence was not unduly lenient and refused leave to make the Attorney General’s reference.

1. Guideline categorisation. Culpability Category B was common ground. Where a judge must be sure of a higher culpability factor before sentencing in that category, the judge’s approach was proper. Harm Category 1 applied to serious physical or psychological harm, while Category 2 applied where the characteristics of Categories 1 and 3 were absent. The issue was finely balanced. The judge was entitled to place the second robbery on the cusp of Categories 1 and 2 and to use a starting point of four and a half years, midway between the Category 1B and Category 2B starting points.
2. Aggravation and mitigation. Relevant aggravating factors included planning, targeting an elderly victim, following her home, offending at night and offending outside her home. Relevant mitigation included previous good character, remorse and caring responsibilities. Judges could reasonably regard those factors as balancing each other or could make a slight increase to the starting point.
3. Totality. It was permissible to treat the second robbery as the lead offence and increase the sentence to reflect the separate criminality and harm of the first robbery and the unlawful wounding. The court had to avoid double-counting physical and psychological harm before applying totality and proportionality principles.
4. The resulting increase, whether two years or two years and six months depending on the assessment of aggravation and mitigation, could not be characterised as unduly lenient. The sentence might have been merciful or lenient, but it was not unduly lenient.

• Court of Appeal (Criminal Division): On a reference by the Attorney General under section 36 of the Criminal Justice Act 1988, the court refused leave to refer the sentences as unduly lenient: [2023] EWCA Crim 1084.
• Crown Court at Cardiff: The Recorder sentenced the respondent on 12 April 2023 to an overall term of four years and eight months.