R v Zakaria Mohamed

Under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient only when it falls outside the range reasonably open to the sentencing judge. A reference is exceptional, but the Court retains a discretion after finding undue leniency.

A custodial term must reflect the offender’s own offence and proper guideline assessment. It must not be reduced because accomplices escaped conviction, because a co-defendant received sentence for a lesser offence, or because remand time has already been served. Guilty-plea credit is applied to the proper post-trial sentence. A realistic prospect of rehabilitation cannot justify reducing an otherwise appropriate custodial term merely to make a suspended sentence available.

The offender pleaded guilty in the Crown Court at Leicester to robbery and two driving offences. He and two unidentified men forced the victim into a car, threatened him with a knife, and stole valuable clothing and electronic items. The sentencing judge imposed 21 months’ imprisonment, suspended for 24 months, for the robbery.

The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The reference challenged the harm assessment under the robbery guideline, the weight given to aggravating and mitigating matters, the credit for the guilty plea, and the decision to suspend the sentence.

The Court granted leave, allowed the reference, quashed the suspended sentence order, and substituted 4 years and 9 months’ imprisonment.

1. The principles governing a reference under section 36 of the Criminal Justice Act 1988 were those summarised in Attorney-General’s Reference (R v Egan) [2022] EWCA Crim 1751. A sentence is unduly lenient only if it lies outside the reasonable range available to the sentencing judge. The jurisdiction is exceptional, but the Court retains a discretion even after making that finding.

2. The sentencing judge had erred in principle by tempering the sentence because the other joint offenders had not been caught. The offender had to receive the appropriate sentence for his own offence. There was also no true parity with the co-defendant, who had been convicted of lesser offences and received immediate custody.

3. The judge also erred by treating the guilty plea as a separate mitigating factor and by allowing 25 per cent credit. Credit had to be applied to the proper post-trial sentence. Given the late plea, the appropriate reduction was no more than 20 per cent. Time already served on remand was relevant at the end of the sentencing exercise and could not reduce the custodial term otherwise warranted.

4. The prospect of a fresh start and rehabilitation could not drive the calculation towards a suspended sentence. Suspension could arise only if the properly determined custodial term was no more than two years. Even if the harm lay at the cusp between categories 2 and 3, the guideline indicated a post-trial sentence between four and five years before proper treatment of aggravating and mitigating features. The appropriate post-trial sentence was six years. Applying 20 per cent credit produced a sentence of four years and nine months.

The respondent was directed to surrender to custody, with the sentence to run from surrender.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, the Court granted leave, held the sentence unduly lenient, and substituted 4 years and 9 months’ imprisonment: [2025] EWCA Crim 235.
• Crown Court at Leicester: On 19 December 2024, the offender received 21 months’ imprisonment for robbery, suspended for 24 months.