R v Wasio Kodaolu & Anor.

In a reference under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient only if it falls outside the range reasonably open to the sentencing judge. Sentencing guidelines require a nuanced evaluative judgment. Their categories are not mutually exclusive boxes, and offending may lie on a sliding scale between them. In a conspiracy involving group activity, a defendant’s role in the individual offences does not necessarily determine the defendant’s role in the wider scheme. Multiple offending should not be counted again where its multiplicity is already what makes the offending fall within the applicable guideline category. Delay and subsequent law-abiding conduct may justify a significant reduction where the delay was not caused by the defendants.

Michael Benson and Wasiu Kodaolu pleaded guilty in the Crown Court at Aylesbury to conspiracy to rob. The conspiracy involved a series of robberies and attempted robberies of delivery drivers carrying fraudulently obtained mobile handsets. On 1 February 2023, Benson was sentenced to five years and three months’ imprisonment and Kodaolu to five years’ imprisonment.

The HM Solicitor General referred the sentences under section 36 of the Criminal Justice Act 1988, contending that both were unduly lenient. The reference challenged the assessment of the defendants’ culpability under the Sentencing Council guideline and argued that the sentences failed sufficiently to reflect the multiplicity of offending. The central issue was whether either sentence fell outside the range reasonably open to the sentencing judge.

The court refused leave to refer both sentences. They were not unduly lenient.

1. Under section 36 of the Criminal Justice Act 1988, the question was whether the sentence imposed fell outside the range of sentences which, having considered all relevant factors, the judge could reasonably regard as appropriate. The approach in Attorney General’s Reference (No. 4 of 1989) [1991] WLR 41 remained applicable, subject to the present requirement to consider the relevant Sentencing Council guideline.

2. Guidelines are not to be applied arithmetically or mechanistically. As explained in Healey and Others [2012] EWCA Crim 1005, para 9, adjacent categories may overlap and offending lies on a sliding scale of gravity. The descriptions of leading and significant roles in the applicable robbery guideline were not further defined beyond their application to group activity.

3. The defendants’ substantial involvement in the robberies, recruitment of others and contact with O2 or DPD did not require a finding that they had leading roles in the overall conspiracy. The evidence showed that others had masterminded the wider scheme. The sentencing judge was entitled to place Benson at the upper end of medium culpability and Kodaolu below him, at the lower end of the available high-culpability range.

4. The individual incidents involved limited violence and resembled street robberies when viewed separately. The overall scheme brought the case within the professionally planned commercial robbery guideline. Because the multiplicity of offending was itself relevant to that categorisation, a further substantial uplift for multiple offences would have involved double counting.

5. The reduction for delay was not unreasonable. The delay was not caused by the defendants, and they had lived law-abiding lives for three years or more by sentence. Another judge might have imposed a higher sentence, but that did not show that the sentences fell outside the reasonable range.

Leave to refer was refused in each case.

1. Court of Appeal (Criminal Division): On a reference by HM Solicitor General under section 36 of the Criminal Justice Act 1988, leave to refer the sentences was refused. The sentences imposed in the Crown Court were not unduly lenient.
2. Crown Court at Aylesbury: On 1 February 2023, Benson was sentenced to five years and three months’ imprisonment and Kodaolu to five years’ imprisonment for conspiracy to rob.