R v Atif Ahmed Qasim

On a reference against an unduly lenient sentence, the Court of Appeal must assess whether the total sentence fell outside the range reasonably open to the sentencing judge, giving full weight to that judge’s trial knowledge. Multiple culpability and aggravating factors in firearm offences must be reflected. A person playing a full role in an unlawful enterprise may be almost as culpable for weapons supporting it as a person who uses them. Prison overcrowding does not generally justify reducing a lengthy custodial sentence. Guidance for cusp-of-custody cases creates no general sentencing discretion. Delay must be assessed realistically. Separate offences may attract consecutive sentences, but totality requires a just and proportionate overall term.

The Solicitor General referred the offender’s total sentence under section 36 of the Criminal Justice Act 1988. The offender had pleaded guilty to two counts of conspiracy to supply Class A drugs and had been convicted after trial of three firearms offences. The Crown Court at Birmingham imposed an aggregate sentence of 12 years 6 months’ imprisonment. The reference challenged the assessment of firearm culpability and aggravation, and the reductions allowed for delay and prison conditions. The central issue was whether the total sentence fell outside the range reasonably open to the sentencing judge.

1. Section 36 approach. The reference was allowed. Applying the approach in Attorney-General’s Reference No 4 of 1989 [1990] 1 WLR 41, the Court asked whether the total sentence fell outside the range which, having regard to all relevant factors, the judge could reasonably consider appropriate. The assessment had to be cumulative, while giving full weight to the fact that the sentencing judge had heard the firearms trial.
2. Firearms offences. Three separate culpability factors justified movement upwards from the guideline starting point: significant participation in group activity, planning, and loaded firearms or immediately available live ammunition. The offender’s lack of an intention personally to use the weapons was of limited significance. Where weapons support an unlawful enterprise in which the offender plays a full role, culpability may be much the same as that of those who use them. The three prohibited weapons, including a loaded machine gun, and the offender’s previous convictions were substantial aggravating features. They plainly outweighed mitigation. Before reductions for delay or prison conditions, approximately 12½ years was appropriate for the firearms offending.
3. Delay and prison conditions. The delay in this substantial multi-defendant prosecution justified only a very modest discount. The judge had not explained the significant reduction allowed. The Court held, following its explanation of R v Ali [2023] EWCA Crim 232 in R v Tripathi [2024] EWCA Crim 769, that prison-population guidance was directed principally to cusp-of-custody cases. It did not confer a general discretion to reduce the length of otherwise appropriate sentences. R v Manning [2020] 2 Cr App R (S) 46 did not support reductions in sentences of any length. In long-sentence cases, appreciable reduction required cogent evidence of a disproportionately harsh effect on the particular offender, as illustrated by R v Whittington [2020] EWCA Crim 1560. Prison standards were ordinarily matters for public law, not sentencing adjustment.
4. Totality and orders. The firearms and drug offences were separate, so consecutive sentences were justified, but their connection required an overall just and proportionate term. The Court quashed all sentences, substituted 12 years’ imprisonment on each firearms count concurrently and 5 years for the drug conspiracies, concurrent with each other but consecutive to the firearms sentence. The total sentence was therefore 17 years’ imprisonment.

• Court of Appeal (Criminal Division) — On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the Court granted leave, quashed the sentences and substituted a total sentence of 17 years’ imprisonment: [2024] EWCA Crim 1655.
• Crown Court at Birmingham — HHJ Mukherjee sentenced the offender on 25 September 2024 to a total of 12 years 6 months’ imprisonment.