Mohammed, R v

On 29 July 2002, in the Crown Court at Leeds, before His Honour Judge MacGill, the appellant on re-arraignment pleaded guilty to robbery. Sentence was adjourned pending the trial of the appellant's co-accused, Fahim Azam and Amir Hussain. On 14 August 2003, also in the Crown Court at Leeds, before the same judge and a jury, the two co-accused were convicted of robbery. On the same date all three co-defendants were sentenced as follows: the appellant, to ten years' imprisonment; Fahim Azam, to fourteen years' imprisonment; and Amir Hussain, to fifteen years' imprisonment. The appellant and the two co-accused lodged applications for leave to appeal against sentence. Fahim Azam also lodged an application for leave to appeal against conviction. All applications were refused by the single judge and in each case were renewed before this court. On 28 May 2004, the appellant signed a Form A, abandoning his renewed application for leave to appeal against sentence. On 1 November 2004, the full court (Potter LJ, Tugendhat J and His Honour Judge Maddison) heard the renewed applications of the co-accused. The court dismissed Azam's renewed application for leave to appeal against conviction, but granted both co-accused leave to appeal against sentence. In each case the appeal was allowed and the sentences were reduced by two years, so that the sentence on Fahim Azam was twelve years' imprisonment, and on Amir Hussain, thirteen years.

On 16 February 2005, new solicitors wrote on behalf of the appellant to the Registrar of Criminal Appeals to the effect that the appellant now sought leave to have his notice of abandonment set aside as a nullity. This application was made in the light of the reduction in sentence received by the co-accused and the appellant's instructions that he had not been properly advised in respect of his renewed application. The waiver procedure was completed.

On 11 October 2005, the full court (Rix LJ, Bell J and Sir John Alliott) refused the application to set the notice of abandonment aside as a nullity. The court was of the view, however, that there would be injustice if the appellant, who had pleaded guilty, did not receive the same reduction as those who had contested the proceedings but had persevered with their renewed applications, and indicated that the matter should be brought to the attention of the Criminal Cases Review Commission. The Commission have now referred the appellant's sentence to this court. He appeals against sentence pursuant to that reference.

The facts of the robbery can be shortly stated. On 12 January 2002, the appellant and his co-accused robbed a Securicor van of over £350,000. Hussain, who was employed to drive the van, acted as an inside man, but attempted to portray himself as the victim of the robbery. Apart from this, it was not possible to determine the precise role of each of the accused. None of the money was ever recovered.

When passing sentence in the Crown Court, the judge considered the antecedents of each defendant and gave the appellant credit for his guilty plea. Aspects of Hussain's behaviour during his employment with Securicor showed that he had probed to see what he could get away with before planning the robbery with his co-accused. On the facts the judge thought that it was the appellant who entered the van and took the money. In the course of passing sentence the judge made it clear that he took into account the decision of R v Law [1998] 2 Cr App R(S) 365 in arriving at his starting point.

When the co-accused's appeal came before this court, this court took the view that R v Law did not indicate an appropriate starting point in this case because there a firearm had been used, whereas no firearm of any kind had been used in this robbery. Accordingly, this court accepted in the case of the co-accused that their sentences were too high and reduced them by two years.

On behalf of the appellant it is submitted that this court should take account of his age, his effective good character, the fact that there was no firearm used in the commission of the robbery, and the indication given by this court that the sentence was too long by two years.

We accede to these submissions. We are in particular affected by the indication by this court that will have given rise to an expectation that the sentence ought to be reduced by two years. Accordingly, we quash the original sentence and impose in its place a sentence of eight years' imprisonment. For these reasons and to this extent this appeal is allowed.