R v Mohammed Fathi & Ors

In an unduly lenient sentence reference, the application for permission and the reference are distinct. The permission application must concisely identify each ground. A late variation requires the court’s permission and a good reason why the ground was omitted originally.

Sentencing-guideline categorisation is an evaluative exercise. The court must assess culpability and harm in the round. It must not mechanically increase the starting point because more than one category factor is present. Youth, immaturity and personal mitigation may substantially outweigh relevant antecedents. A determinate sentence may adequately protect the public where offenders have realistic prospects of maturity and rehabilitation.

Four offenders were convicted at the Crown Court at Chelmsford of conspiracy to commit aggravated burglary. The sentencing judge placed the offending in culpability category A and harm category 1 under the applicable guideline. She imposed nine years’ custody on Fathi and Hurst, and seven and a half years’ custody on Ruscoe and Clegg.

The Solicitor General sought permission under Criminal Justice Act 1988 section 36 to refer the sentences as unduly lenient. The proposed grounds concerned the guideline starting point, offence aggravation, the weight given to mitigation, and dangerousness and extended sentences for Fathi and Hurst. Two proposed grounds had not been included in the original permission application.

1. The application for permission to make the references was refused. The sentences remained undisturbed, save that Clegg’s sentence was formally corrected to detention in a young offender institution. Its custodial length remained seven and a half years.

2. Under section 36 of the Criminal Justice Act 1988, an application for permission and the substantive reference are separate matters. The statutory 28-day limit for applying for permission cannot be extended. Part 41 of the Criminal Procedure Rules 2020 requires the permission application to state each argument relied on. A party seeking at the hearing to add grounds must obtain permission and provide a good reason both for the omission and for allowing the late variation. The Solicitor General gave no adequate explanation for omitting the first two grounds. Permission was therefore refused.

3. The proposed additional grounds also lacked arguable merit. Deciding where offending falls within guideline category A1 requires evaluative judgment about culpability and harm. It is not a numerical exercise in which the presence of several harm factors compels a starting point above the category starting point. The judge was entitled to select ten years as the offence-based starting point in light of the planning, violence, threats, psychological impact, failure to enter the dwelling, brief duration and desistance.

4. The judge was also entitled to give substantial weight to youth, immaturity and individual mitigation. Relevant previous offending was mostly committed while the offenders were children and was of a different nature and order from the index offence. Emotional and behavioural maturity commonly continues into a person’s mid-20s.

5. Finally, the judge was entitled not to impose extended sentences on Fathi and Hurst. Their lengthy determinate sentences, prospects of maturation and rehabilitation, and post-release licence conditions were capable of providing adequate public protection. The pre-sentence reports did not recommend extended sentences.

• Court of Appeal (Criminal Division): In an Attorney General reference under section 36 of the Criminal Justice Act 1988, the court refused permission to refer the sentences as unduly lenient: [2024] EWCA Crim 1434.

• Crown Court at Chelmsford: Following trial before Judge Loram KC and a jury, the four offenders were convicted of conspiracy to commit aggravated burglary and received determinate custodial sentences.