R v Amjad Hussein & Anor

At sentencing, a judge must use the Sentencing Council guideline current on the date of sentence and consult its digital version. Where a historical offence has no current guideline, the judge must make measured reference to the guideline for equivalent offending. That exercise is not mechanistic or arithmetical. It must account for differences in statutory maxima and Parliament’s indication of seriousness. An incorrect guideline does not automatically make a sentence unduly lenient. The sentence must fall outside the range that a reasonable judge could impose after considering all relevant factors. Appellate courts should respect the trial judge’s assessment, particularly where the judge heard related proceedings. Parity with sentences imposed on other offenders may properly form part of that assessment.

The Solicitor General referred two sentences under section 36 of the Criminal Justice Act 1988 as allegedly unduly lenient. Ebrahim Pandor had received six years’ imprisonment for trafficking within the United Kingdom for sexual exploitation, contrary to section 58 of the Sexual Offences Act 2003. Amjad Hussain had received ten years for rape, contrary to section 1 of that Act. Both sentences followed convictions at the Crown Court at Leeds after retrial. The references concerned the correct guideline for the historical trafficking offence, the effect of multiple harm and aggravating factors in the rape sentence, and whether either sentence fell outside the permissible range.

The court granted leave to refer Pandor’s sentence because the reference raised a point of principle, but did not increase the sentence. It refused leave to refer Hussain’s sentence.

1. Unduly lenient sentence. The court followed the formulation in Attorney-General’s Reference No 4 of 1989 [1990] 1 WLR 41. A sentence is unduly lenient only if it falls outside the range which a judge, having considered all relevant factors, could reasonably regard as appropriate. The trial judge is particularly well placed to assess competing aggravating and mitigating considerations.
2. Pandor. The judge had used the archived guideline relating to section 59A of the Sexual Offences Act 2003. That was an error. A judge must use the guideline current at sentence, consulting the digital Sentencing Council version. The correct guideline was the guideline for human trafficking under section 2 of the Modern Slavery Act 2015, under which the offence fell within Category 2B, with a starting point of eight years. The aggravating factors warranted an uplift, and the increased statutory maximum required measured adjustment. That adjustment was not mechanical or arithmetical. Nevertheless, the sentencing judge’s assessment that the aggravating and mitigating factors balanced each other was not shown to involve clear error. Even applying the correct guideline, the sentence was not unduly lenient, although it might have been lenient.
3. Hussain. The judge correctly placed the rape in Category 2A and considered the multiple harm and aggravating factors. Viewed in isolation, twelve years would have been appropriate. It was not wrong in principle to take account of parity with other defendants, since the judge had heard the related trials and was particularly well placed to assess the overall circumstances. The appellate court could not be satisfied that ten years was unduly lenient.

• Court of Appeal (Criminal Division) — On the Solicitor General’s references under section 36 of the Criminal Justice Act 1988, leave was granted in Pandor’s case but the sentence was not increased; leave was refused in Hussain’s case: [2024] EWCA Crim 1392.
• Crown Court at Leeds — Following retrial convictions, Pandor was sentenced to six years’ imprisonment and Hussain to ten years’ imprisonment.