R v Nabeel Shah

When applying the Totality Guideline, the overriding question is whether the overall sentence is just and proportionate. Consecutive sentences are not objectionable merely because the same criminality could instead have been reflected by aggravating one count and imposing concurrent sentences on others. The court must avoid double counting, but may structure a proportionate sentence in different ways. Where offending charged as a single count forms part of a wider course of conduct known to the parties and admitted on the same factual basis, the earlier conduct may be highly relevant background and may justify a significant uplift. An appellate court will not interfere merely because another sentencing structure might have produced a slightly shorter sentence, provided the total sentence is not unjust, disproportionate or manifestly excessive.

The appellant pleaded guilty in the Crown Court at Sheffield to stalking causing serious alarm or distress, disclosing private sexual photographs and criminal damage. He received consecutive sentences of 18 months, nine months and nine months, making a total of three years’ imprisonment.

He challenged the treatment of the criminal-damage charge, the credit allowed for his guilty pleas, the categorisation of the stalking and disclosure offences under the relevant Definitive Guidelines, and the use of consecutive sentences. The Court also considered the effect of the indictment’s apparently single-count wording for the disclosure offending, despite the Crown’s case that it involved multiple incidents. The central issue was whether the sentence, however structured, was just and proportionate.

1. Appeal dismissed. The criminal-damage charge had been sent for trial under section 51(3) of the Crime and Disorder Act 1998. The mistaken entry on the Magistrates’ sending sheet did not constrain the Crown Court to sentence the offence as summary-only. An adjournment would have made no difference and the appellant suffered no injustice ([4]–[5]).
2. The appellant had not pleaded guilty before the Magistrates. His stated intention to plead guilty, while the value of the damage remained disputed, did not entitle him to full credit. The judge was right to allow 25 per cent credit ([6]).
3. Under the Definitive Guideline for Intimidatory Offences, the categorisation of the stalking offence was justified. Persistent abusive calls and messages over the relevant period, including conduct continuing in breach of bail and in defiance of an express no-contact order, supported high culpability and the highest harm category. The sentence of 18 months was not excessive ([15]–[18]). The disclosure offence was also properly treated as a category 1A offence ([19]–[20]).
4. The indictment may have appeared to describe a single disclosure, but the Crown had clearly opened the case as involving multiple offences over the stated period and the defence was not taken by surprise. The earlier disclosures therefore formed important background and could have justified a significant uplift. The sentence actually imposed was nevertheless generous and did not warrant appellate intervention ([23]–[26]).
5. As explained in R v Bailey & Ors [2020] EWCA Crim 1719, the Totality Guideline requires attention to whether the overall sentence, however structured, is just and proportionate. Consecutive sentences are permissible where the court avoids double counting and properly reflects the total criminality. The three-year sentence was not disproportionate, unjust or obviously too long ([27]–[31]).

• Court of Appeal (Criminal Division): The appeal against sentence was dismissed on 18 January 2024: [2024] EWCA Crim 50.
• Crown Court at Sheffield: On 23 May 2023, HHJ Kelson KC sentenced the appellant to three years’ imprisonment for the three offences.