R v Sadnam Singh & Anor

These two cases were listed together as they both raise the issue as to the extent to which, if at all, the court can and should hear an application by the Solicitor General for leave to review a sentence, as being unduly lenient under section 36 of the Criminal Justice Act 1988, where the offender, who is a foreign national, is not present at the hearing due to his voluntary deportation and removal from the jurisdiction under the Early Removal Scheme provided for by section 260 of the Criminal Justice Act 2003.

Part IV of the Criminal Justice Act 1988 (“CJA 1988”) provides for the Attorney General to apply to the Court of Appeal, Criminal Division, for leave to review sentences which he considers to be unduly lenient and for the court to grant leave and review those sentences.

Not all sentences are susceptible to review, only those provided for under section 35. In relation to those sentences, section 36 provides that,

“(1)

If it appears to the Attorney General—

(a)that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and

(b)that the case is one to which this Part of this Act applies,

he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person; and on such a reference the Court of Appeal may—

(i)quash any sentence passed on him in the proceeding; and

(ii)in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him.

…..

(8)

The supplementary provisions contained in Schedule 3 to this Act shall have effect.

…..”

The supplementary provisions contained in Schedule 3 include provisions relating to the time within which the Attorney General must apply for leave (28 days from the date of the sentence) and more generally for the hearing of the application (including the provision out of the central fund for the legal expenses of those representing an offender at a hearing of the application) as follows:

“……

6 Except as provided by paragraphs 7 and 8 below, a person whose sentencing is the subject of a reference to the Court of Appeal under section 36 above shall be entitled to be present, if he wishes it, on the hearing of the reference, although he may be in custody.

7 A person in custody shall not be entitled to be present—

(a)

on an application by the Attorney General for leave to refer a case; or

(b)on any proceedings preliminary or incidental to a reference,

unless the Court of Appeal give him leave to be present.

8 The power of the Court of Appeal to pass sentence on a person may be exercised although he is not present.

…..”

The process adopted by the Attorney General, or now more usually by the Solicitor General, is to draft and submit an initial application for leave to review a sentence within the period of 28 days post sentence. The offender sometimes submits an initial written response, and in any event is usually invited to correct any factual errors before a fuller written application for leave (termed the Final Reference) is submitted by the Solicitor General nearer to the date of the hearing. Thereafter, a fuller respondent’s notice is usually submitted on behalf of the offender prior to the hearing of the application.

In practice, applications for leave to review and, if granted, the hearing of the review are listed together before the Full Court. The offender (as the respondent is known) is normally present, unless they have waived their right to be present, and is almost invariably legally represented at the hearing.

As Potter LJ said, in Attorney-General's Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418, the purposes of the unduly lenient scheme include,

"... the allaying of widespread concern at what may appear to be an unduly lenient sentence, and the preservation of public confidence in cases where a judge appears to have departed to a substantial extent from the norms of sentencing generally applied by the courts in cases of a particular type."

The principles to be applied to an application under section 36 of the Criminal Justice Act 1988, were first enunciated by Lord Land CJ in Attorney General’s Reference No 4 of 1989 [1989] 11 Cr App R (S) 517,

“The first thing to be observed is that it is implicit in the section that this Court may only increase sentences which it concludes were unduly lenient it cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased – with all the anxiety that this naturally gives rise to – merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the Judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in the so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well-placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.”

Those principles have developed over the years and have more recently been summarised by this court in Attorney-General’s Reference (Egan), [2022] EWCA Crim 1751, as follows,

“(1)

The judge at first instance is particularly well-placed to assess the weight to be given to competing factors in considering sentence.

(2)

A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate.

(3)

Leave to refer a sentence should only be granted by this Court in exceptional circumstances and not in borderline cases.

(4)

Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into gross error……”.

Furthermore, as Lord Lane CJ also made clear in Attorney-General's Reference (No 4 of 1989), even if the court, having granted leave, determines that the sentence is unduly lenient, it still retains a discretion as to whether to increase the sentence.

“The second thing to be observed about the section is that, even where it considers that the sentence was unduly lenient, this Court has a discretion as to whether to exercise its powers. Without attempting an exhaustive definition of the circumstances in which this Court might refuse to increase an unduly lenient sentence, we mention one obvious instance: where in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the court ought to be concerned.

Finally, we point to the fact that. where this Court grants leave for a reference, its powers are not confined to increasing the sentence.”

In Attorney General’s Reference (No 79 of 2015) (R v Nguyen) [2016] EWCA Crim 448, it was held that when deciding whether to increase a sentence which the court has decided was unduly lenient, whereas the court, when deciding whether a sentence was unduly lenient, can only take account of the material available to the sentencing judge, when deciding whether to increase the sentence, the court may take into account additional material which was not available to the sentencing judge.

As Sir Brian Leveson P explained between [10] – [14],

“10.

It is clear that the power of this court to declare a sentence unduly lenient depends entirely on what was put before the original sentencing court. It is not open to the Attorney General to rely upon further evidence not placed before the sentencing court to justify the Reference. That much is clear from Attorney General's Reference No 19/2005 B (W) [2006] EWCA Crim 785 in which, on behalf of the Attorney General, it was submitted that further psychiatric evidence demonstrated that the offender was dangerous and thus an indeterminate sentence was appropriate notwithstanding that such evidence had not been before the sentencing judge. Lord Justice Rose observed (paragraph 10):

‘The material which is now before this court points strongly in the direction of an indeterminate sentence being appropriate. But it is not this court's function under Section 36 of the Criminal Justice Act 1988 to substitute in the light of new material our view as to what the sentence ought now to be. Our task under Section 36 is to decide whether the judge's sentence in the light of the material before him can properly be characterised as having been unduly lenient.’

For the reasons which we have sought to explain, the judge was alert to the matters in relation to the possibility of imposing a discretionary life sentence to which he ought to have been alert and he reached a conclusion on the material before him which he had been entitled to reach. That, in our judgment, does not give rise to a sentence which can properly be characterised as unduly lenient.

11.

That decision, followed as it has been in the subsequent decision of Attorney General's Reference No 84/2009 R v Quain [2010] EWCA Crim 1879, leaves open the question of the power of the court if a sentence which is in fact unduly lenient as pronounced by the sentencing court then falls to be reviewed. In particular, the case leaves open the question whether at that stage, having declared a sentence to be unduly lenient, material which arises subsequent to the decision of the sentencing judge can be taken into account. It is beyond doubt that very frequently material is placed before this court to justify a conclusion that the offender need not be dealt with more severely by reason of material not available to the judge such as his progress in custody since the passage of the original sentence. Material in his favour is considered, but the issue which arises is whether material that it adverse to the offender can be considered.

12.In Attorney General's Reference No 74/2010 R v Pearson [2011] EWCA Crim 873 this precise issue was ventilated before the court. Lord Justice Hooper, giving the judgment, said (paragraph 21):

‘We take the view that we do have the power to take into account matters adverse to the defendant when deciding what is the appropriate sentence.’

He observed that the point had not been fully argued. The proposition, however, has now been the subject of argument before us and, in our judgment, turns upon the proper construction of Section 36 (1) (b) (ii) of the 1998 Act.

13.

The first task which this court must undertake is to decide whether a particular sentence is unduly lenient. If it is, it must be quashed whereupon, by virtue of that provision, whereupon the court is required in place of it to pass "such sentence as they think appropriate for the case and as the court below have power to pass when dealing with him.

14.

Mr Masi, on behalf of the offender, argues that the power of the court derived from the facts then advanced before the court and that this provision does not permit the Court of Appeal to consider features which aggravate, as opposed to mitigate, the impact of a particular sentence. In our judgment that cannot be right. Once the court has concluded that a sentence, as passed, was unduly lenient based on the facts as known to the judge the responsibility of this court is to pass the appropriate sentence for the case. In those circumstances, it is, at the very least, open to the court to take into account whatever new information is available. As an example, assume that the court decided that it was unduly lenient not to declare an offender dangerous within the provisions set out in Section 226A of the Criminal Justice Act 2003 and the court then, on a Reference, concluded that the judge should have considered that the offender was dangerous but orders further psychiatric evidence. This evidence not only underlines the correctness of that decision but identifies the very real risk to the public which might not have been apparent from the original facts of the case. In our judgment it is beyond question that this court must then proceed on the up-to-date information.”

Sections 32 – 39 of the UK Borders Act 2007, (“UKB Act 2007”) provides for the deportation of foreign criminals by the Secretary of State for the Home Department (“SSHD”). Under section 32,

“(1)

In this section “foreign criminal” means a person—

(a)

who is not a British citizen or an Irish citizen,

(b)who is convicted in the United Kingdom of an offence, and

(c)to whom Condition 1 or 2 applies.

(2)

Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3)

Condition 2 is that—

(a)the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and

(b)the person is sentenced to a period of imprisonment.

(4)

For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.

(5)

The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

….”

Although section 32 is entitled “Automatic Deportation” and generally referred to as the automatic deportation provisions, deportation does not occur automatically, as normally understood, but obliges the SSHD to make a deportation order against a foreign criminal under section 5(1) of the Immigration Act 1971 (“IA 1971”) which provides,

“(1)

Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.

….”

As to the timing of when the SSHD is required to make a deportation order under section 32(5) of the UKB Act 2007, section 34 provides that,

“(1)

Section 32(5) requires a deportation order to be made at a time chosen by the Secretary of State.

(2)

A deportation order may not be made under section 32(5) while an appeal or further appeal against the conviction or sentence by reference to which the order is to be made—

(a)has been instituted and neither withdrawn nor determined, or

(b)could be brought.

….”

Once a deportation order has been made and the foreign criminal has been notified, he will be liable for removal from the UK under section 259 of the Criminal Justice Act 2003 (“CJA 2003”). Moreover, section 260 CJA 2003 provides that,

“(1)

Where a fixed-term prisoner is liable to removal from the United Kingdom, the Secretary of State may remove the prisoner from prison under this section at any time after the prisoner has served the minimum pre-removal custodial period (whether or not the Board has directed the prisoner’s release under this Chapter).

(2)

The minimum pre-removal custodial period is the longer of—

(a)30% of the requisite custodial period, and

(b)the requisite custodial period less 4 years.

…..”.

However, if a foreign criminal is removed from prison under what is generally known as the Early Removal Scheme, section 260 CJA 2003 also provides that,

“….

(4)

A prisoner removed from prison under this section—

(a)

is so removed only for the purpose of enabling the Secretary of State to remove him from the United Kingdom under powers conferred by—

(i)Schedule 2 or 3 to the Immigration Act 1971, or

(ii)section 10 of the Immigration and Asylum Act 1999 (c. 33), and

(b)so long as remaining in the United Kingdom, and in the event of a return to the United Kingdom after removal, is liable to be detained in pursuance of his sentence

(4A)Where a person has been removed from prison under this section, a day on which the person has not spent any part of the day in prison or otherwise detained in pursuance of their sentence is not, unless the Secretary of State otherwise directs, to be included—

(a)when determining for the purposes of any provision of this Chapter how much of their sentence they have (or would have) served,

….”

Moreover, section 261 CJA 2003 provides that,

“Where a person—

(a)has been removed from prison under section 260 on or after the day on which section 47 of the Nationality and Borders Act 2022 came into force,

(b)has been removed from the United Kingdom following that removal from prison, and

(c)returns to the United Kingdom,

this Chapter applies to the person with the modifications set out in Schedule 19B.”

Therefore, the effect of the Early Removal Scheme is that a foreign criminal who is liable for deportation may be removed from prison for the purposes of deportation once he has served the minimum pre-removal custodial period. However, following his removal from the UK, if the foreign criminal should return to the UK, (legally on revocation of the deportation order or otherwise) he will be liable to be detained to serve the remainder of his sentence.

These statutory provisions are reflected in The Early Removal Scheme and Release of Foreign National Prisoners: PSI 04/2013, (“PSI 04/2013”) which is a Prison Service instruction issued by the National Offender Management Service, (“NOMS”), an executive agency of the Ministry of Justice (“MoJ”). This makes it clear, at [1.9], that although the SSHD is responsible for the removal of foreign criminals from the UK, the MoJ through its Prison Governors retains responsibility for authorising the removal of foreign criminals from prison.

[1.9] of PSI 04/2013 further provides that,

“Once HOIE [Home Office Immigration Enforcement] have confirmed their intention to remove, the Governor will then check for any barriers and (if there are none) authorise removal under ERS [Early Removal Scheme].”

[2] of PSI 04/2103 sets out various barriers to removal, and [2.13] provides that,

“Where HOIE confirm that a FNP [Foreign National Prisoner] can be removed, and the prisoner is not subject to further custodial requirements, outstanding criminal matters (this will include ongoing appeals of the sentence/conviction or unduly lenient appeals by the Attorney General), or confiscation proceedings, Governors must normally approve removal under the ERS……”

Moreover, the Home Office Guidance for Home Office staff, published on 18 December 2015, (“HO Guidance 2015”) as to what should happen when a foreign criminal appeals against conviction and/or sentence whilst the Home Office is taking deportation action, also provides at page 7 that,

“A referral to the Court of Appeal brought by the Attorney General under section 36 of the Criminal Justice Act 1988 against an unduly lenient sentence should not be treated as an appeal against sentence under section 34 of the UK Borders Act 2007, because section 34 relates to appeals made by the foreign criminal. However, in cases where the Attorney General is considering whether to refer a case or has referred a case to the Court of Appeal, removal action should not be taken until the appeal is concluded as the foreign criminal has the right to be present at the hearings. Where the sentence is increased by the Court of Appeal, the foreign criminal will have between 14 and 28 days to appeal to the Supreme Court on a point of law and removal should not be enforced until that further appeal is concluded.”

The latter part of the HO Guidance 2015, is reflective of paragraph 6 of Schedule 3 to the CJA 1988, as to the entitlement of an offender to be present at the hearing of a reference by the Attorney General to review a sentence as being unduly lenient.

The Solicitor General has provided a witness statement from Margaret Kelly, a civil servant who is employed by the Home Office as a G7 Operations Manager, and currently the Head of Expedited Returns Unit and Removals Desk in the Foreign National Offender Returns Command within Immigration Enforcement. She has set out the process for pursuing deportation, as follows:

“7.The process for pursuing deportation starts with the service of a “stage 1” decision to deport. This explains the reasons why the individual’s deportation is deemed to be conducive to the public good and sets out the statutory provisions under which the deportation is being pursued. The recipient is given 20 working days to make any human rights or Asylum claim (or otherwise raise any issues/exceptions to deportation). Simultaneously, the individual is served with a disclaimer to opt for voluntary removal instead of making a claim to resist their deportation. Any representations are received and considered.

8.If deportation is pursued, a stage 2 decision notice is served which sets out the reasons for the refusal of their protection (asylum) or human rights claim. In cases subject to the auto-provisions, a Deportation order (DO) is signed and served simultaneously to the stage 2 decision…..”

A copy of the disclaimer to opt for voluntary removal is annexed to the witness statement, which includes a tick box which reads as follows:

“I am aware that I have an opportunity to lodge representations against my deportation, but I wish nevertheless to leave the UK without doing so. I have had the opportunity to obtain legal advice and I am aware that I may be removed once the deadline to appeal has expired.”

The form provides for it to be read to the individual who is asked to sign that it has been understood, and for it to be countersigned by the person responsible for having read the form to the individual.

The Solicitor General has also provided a witness statement from Lyndsey Lancaster, dated 6 November 2025, a civil servant who is employed by the MoJ as a policy advisor in the Prison Demand and Release Policy Team. She has set out the role of the MoJ in the removals process under the Early Removal Scheme and the process for notifying prisons and prisoners to an application for leave under the unduly lenient scheme.

She states that the role of the MoJ is limited to authorising the removal of an offender from prison for the purpose of their deportation from the UK under the Early Removal Scheme.

Moreover, that in relation to applications for leave to refer a sentence as being unduly lenient,

“10.There is no express statutory or procedural duty on the Court of Appeal Criminal Division, the Criminal Appeal Office, or the Registrar of Criminal Appeals to notify a prison when a reference is made by the Attorney General under the Unduly Lenient Scheme (Part IV of the Criminal Justice Act 1988).

11.Neither Part 41 of the Criminal Procedure Rules 2025 nor the Court of Appeal’s published guidance imposes such an obligation. However, it is understood that the Criminal Appeal Office operates a standard administrative practice of emailing the relevant prison to request a prison report, which serves both to inform the court’s consideration of the sentence and to notify the prison of the open referral.”

In R vHayward, Jones & Purvis [2001] EWCA Crim 168, this court considered the principles which should guide a court as to whether a trial should proceed in the absence of an accused. These were summarised at [22] as follows,

“1.

A defendant has, in general, a right to be present at his trial and a right to be legally represented.

2.

Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.

3.

The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.

4.

That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.

5.

In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:

(i)

the nature and circumstances of the defendant's behaviour in

absenting himself from the trial or disrupting it, as the case may be

and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;

(ii)

whether an adjournment might result in the defendant being

caught or attending voluntarily and/or not disrupting the proceedings;

(iii)the likely length of such an adjournment;

(iv)

whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;

(v)

whether an absent defendant's legal representatives are able to

receive instructions from him during the trial and the extent to which they are able to present his defence;

(vi)

the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;

(vii)

the risk of the jury reaching an improper conclusion about the absence of the defendant;

(viii)

the seriousness of the offence, which affects defendant, victim and public;

(ix)

the general public interest and the particular interest of victims

and witnesses that a trial should take place within a reasonable time of the events to which it relates;

(x)

the effect of delay on the memories of witnesses;

(xi)

where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.

6.

If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.”

On appeal to the House of Lords, R v Jones [2002] UKHL 5, those principles were endorsed, albeit Lord Bingham stressed that the discretion to commence a trial in the absence of an accused,

“….should be exercised with the utmost care and caution. If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial….”

Moreover, he did not consider that the seriousness of offence was a matter relevant to the exercise of the discretion, and that,

“…it is generally desirable that a defendant be represented even if he has voluntarily absconded. The task of representing at trial a defendant who is not present, and who may well be out of touch, is of course rendered much more difficult and unsatisfactory, and there is no possible ground for criticising the legal representatives who withdrew from representing the appellant at trial in this case. But the presence throughout the trial of legal representatives, in receipt of instructions from the client at some earlier stage, and with no object other than to protect the interests of that client, does provide a valuable safeguard against the possibility of error and oversight. For this reason trial judge routinely ask counsel to continue to represent a defendant who has absconded during the trial, and counsel in practice accede to such an invitation and defend their absent client as best they can properly can in the circumstances….”

In R v Gavin & Tasie [2010] EWCA Crim 2727, this court had to consider whether holding two separate confiscation hearings in the absence of the accused was a breach of the fair trial provisions of Article 6 ECHR. The court having considered R v Jones, noted that the court had a discretion whether to conduct a trial in the absence of an accused, and observed that,

“We would surmise that the discretion may be exercised more readily where the issue concerns sentence rather than the question of guilt itself….”

In the case of Tasie, who had been involuntarily deported prior to the confiscation hearing, the court held that the hearing did involve a breach of Article 6. However, in the case of Gavin, who had been voluntarily deported prior to the confiscation hearing, the court held that there was no such breach. Counsel for Gavin had submitted that there was no distinction between his case and that of Tasie, and that had the prison properly informed the Borders Agency, then the deportation would not have proceeded. The court did not accept that submission, and Elias LJ observed at [50], that,

“The fact that the authorities were in error does not affect the fact that this appellant, with full knowledge that these proceedings were on foot, chose to take advantage of a scheme which would secure his removal from the country far more quickly than might otherwise have been the case. He did so without telling the authorities that the confiscation proceedings were ongoing and without telling his own solicitors. We are not suggesting that he was under any obligation to do that but he takes the consequences if he does not do so.”

The only previous decision of this court to which we have been referred, which had to consider whether to proceed with the hearing of an application for leave to refer a sentence as unduly lenient where the offender had been voluntarily deported prior to the hearing, is R v Bilalaj [2023] EWCA Crim 254. The issue was dealt with by Macur LJ between [19] – [22] as follows,

“19.

On 25 January 2023 the offender was voluntarily deported, no longer in custody, to Albania pursuant to section 5(1) of the Immigration Act 1971. It is said in email traffic that has been disclosed that he was eligible to be considered under an early release scheme, despite his earliest date of release of 25 May 2023, taking into account the period he had spent on remand or qualifying curfew prior to conviction.

20.

Nevertheless, we consider that despite his absence from this jurisdiction, his interests have been ably represented by Miss Malcolm and we should proceed to consider the application made by His Majesty’s Solicitor General.

21.

In doing so, we come to the clear conclusion that this sentence was unduly lenient, and that public confidence in sentencing of the offender should be restored by our indication as to the appropriate range of sentencing and also the substitution of such a sentence which would be effective if, in future, this offender returned to the jurisdiction.”

In the light of these matters, the factual background relating to each of the offenders requires to be considered.

Sadnam Singh is 29 years of age, having been born on 31 July 1996.

On 2 April 2025, in the Crown Court at Preston, Sadnam Singh and his co-accused, Navjot Singh were convicted of offences of sexual assault, contrary to section 3 of the Sexual Offences Act 2003. Sadnam Singh was convicted of two such offences (counts 1 and 2), whilst his co-accused was convicted of two other offences (counts 3 and 4).

On 16 June 2025, the trial judge sentenced them as follows:

On 6 July 2025, Home Office Immigration Enforcement caused a stage 1 letter and disclaimer to be served upon Sadnam Singh at HMP Risley. The written disclaimer was signed by Sadnam Singh as having been read and understood by him and was duly countersigned.

Sadnam Singh had become eligible for removal through the early release scheme on 16 June 2025, such that on 11 July 2025, the Governor signed a form authorising his removal under the Early Removal Scheme.

On 14 July 2025, the Solicitor General signed a written application for leave to refer Sadnam Singh’s sentence as being unduly lenient, a copy of which was sent to solicitors instructed on his behalf.

On 15 July 2025, the solicitors instructed on behalf of Sadnam Singh wrote to him notifying him of the application for leave to refer his sentence as being unduly lenient.

On 17 July 2025, Home Office Immigration Enforcement signed a stage 2 letter and deportation order concerning Sadnam Singh.

A written confirmation of conveyance, dated 18 July 2025, relating to the stage 2 letter and deportation order, was signed by Sadnam Singh as having been received by him and duly countersigned.

On the same date, Sadnam Singh also signed a written Disclaimer in the Case of Departure by Agreement which included the following boxes which were ticked,

“I have been notified that I am liable to be removed/deported from the United Kingdon under immigration powers.

I have been given the opportunity to access legal advice.

……

I wish to be included in the Early Removal Scheme.

I confirm that the terms of the Early Removal Scheme have been explained to me.

I confirm that I understand that, if I return to the United Kingdom before my sentence expires, I will be returned to prison to serve the remainder of my sentence.

…..”

On 27 July 2025, those instructed on behalf of Sadnam Singh signed a Respondent’s Notice, opposing the application by the Solicitor General for leave to refer his sentence as being unduly lenient. It was submitted that,

“The sentence imposed was not unduly lenient. It was an entirely appropriate sentence, arrived at by a highly experienced Judge, after careful considerations were made of the facts and the sentencing documents before the Court. The Court had been provided with a sentencing note for the Crown and one for defence, there was also a PSR that had been completed on the offender.

The Judge, having been provided with this material, made a fully articulated and reasoned analysis considering all the mitigating and aggravating factors and was able to apply these to the guidelines, resulting in a fair and just sentence.

The Judge showed a clear understanding of the sentencing guidelines clearly identified the relevant starting point, which was one of 3 years before mitigation was applied resulting in a sentence of 30 months custody.

The Judge’s sentencing remarks demonstrate a careful, measured and proper analysis of the material before the Court. The Judge had to reflect the time the offender had spent on a qualifying curfew prior to the verdict being reached and this would have therefore impacted the sentence imposed, therefore there can be no criticism made of the agreed position of the Court’s approach to credit and days on remand.

There is no basis to advance that the Judge failed to recognize the seriousness of the offence or that he gave too much weight to mitigating factors, personal mitigation was reduced only by 6 months after submissions made as there was compelling mitigation”

According to Lyndsey Lancaster’s witness statement, Sadnam Singh was removed from HMP Risley on 6 August 2025 and taken to Yarl’s Wood Immigration Removal Centre, where he was detained pending his removal from the UK to Amritsar which took place on 9 August 2025.

It would appear from Lyndsey Lancaster’s witness statement, that although a parallel procedure had been carried out in relation to his co-accused, Navjot Singh, and his deportation did not take place, due to the Criminal Appeal Office having emailed HMP Risley on 23 July 2025 requesting a report due to his sentence having been referred as being unduly lenient, no such email appears to have been sent relating to Sadnam Singh until 1 September 2025.

On 1 September 2025, the Solicitor General signed the Final application for leave to refer the sentences of both Sadnam Singh and Navjot Singh as being unduly lenient.

On 15 October 2025, the Solicitor General’s application for leave to refer the sentences imposed upon both Sadnam Singh and Navjot Singh was listed before the Full Court. Although in the case of Navjot Singh leave was given and his sentence on count 4 was quashed as being unduly lenient and substituted with a sentence of 4 years’ imprisonment, the application for leave in respect of Sadnam Singh was adjourned to enable the Full Court,

“…to consider what should be the approach of the court where one part of the government seeks to increase a sentence that will never be served because another part of the government has, for understandable reasons, removed that individual.”

Hamze Awfarah is 26 years of age, having been born on 9 September 1999.

On 28 May 2025, in the Crown Court at Sheffield, Hamze Awfarah pleaded guilty to eight counts on indictment at the Pre-trial Preparation Hearing.

On 15 August 2025, he was sentenced as follows:

All of the periods of imprisonment were ordered to run concurrently with each other, resulting in a total sentence of 3 years’ imprisonment.

Unlike the situation with Sadnam Singh, where we were provided with witness statements exhibiting the relevant documentary material to which we have referred, we have not been provided with such in the case of Hamze Awfarah. However, we have been provided with a chronology of events within the skeleton argument provided on behalf of the Solicitor General dated 26 November 2025, from which, together with some additional documentary material, we have extracted the following:

In the case of Sadnam Singh, it is submitted by Julia Faure Walker on behalf of the Solicitor General, that the court should proceed to hear the application for leave to refer his sentence as being unduly lenient, notwithstanding his absence from the hearing.

It is pointed out that following the application for leave to refer his sentence as being unduly lenient, Sadnam Singh signed a written disclaimer in which he sought to take advantage of the Early Release Scheme and be deported to India, such that it can be inferred that he did not wish to be present at the hearing of the reference for the purposes of paragraph 6 of Schedule 3 to the CJA 1988.

It is submitted that no unfairness arises from his absence from the hearing of the application for leave to review his sentence. The determination of the issue of undue leniency will be dealt with by the court on the basis of the material before the sentencing judge, and there is no reason to conclude that Sadnam Singh has withdrawn his instructions from counsel who will be able to act to protect his best interests, based upon the written response which they have already provided in those proceedings.

Moreover, there is a strong public interest to be served in proceeding with the application, in order to allay concern at what may appear to be an unduly lenient sentence, and to ensure that if Sadnam Singh should return to the UK he would be obliged to serve the sentence which ought properly to have been imposed upon him at the sentencing hearing.

On behalf of Sadnam Singh, Creanna Dodson, who appeared below, together with Colin Witcher who did not, have provided a skeleton argument, dated 25 November 2025, in which it was said that the last occasion upon which Sadnam Singh had contact with his instructed solicitors was on 15 July 2025, which we note was subsequent both to his having signed the first written disclaimer on 6 July and the Solicitor General having signed the application for leave to refer his sentence as unduly lenient on 14 July 2025. It is said, and we of course accept, that thereafter, counsel only responded to the reference on the understanding that counsel was formally instructed in the proceedings.

It is accepted that the making of the deportation order in this case did not amount to a breach of section 34(2) of the UKB Act 2007, as this only prevents a deportation order being made whilst there is an ongoing appeal against conviction or sentence. However, it is pointed out that both PSI 04/2013 and HO Guidance 2015 are to the effect that removal should not take place whilst there is an outstanding application for leave to review a sentence as being unduly lenient.

It is submitted that as any increase in sentence would not be of any practical effect unless and until Sadnam Singh returns to the UK, the application for leave should be stayed until, if at all, Sadnam Singh returns to the UK. Alternatively, the court could proceed to hear the application for leave, and if it considered the sentence imposed on him was unduly lenient, it could declare it as such, but decline to increase the sentence.

In the case of Hamze Awfarah, it is submitted by Benjamin Holt on behalf of the Solicitor General, that the court should proceed to hear the application for leave to refer his sentence as being unduly lenient, notwithstanding his absence from the hearing.

It is pointed out that the Solicitor General signed the initial application for leave to refer Hamze Awfarah’s sentence as unduly lenient on 11 September 2025, to which those instructed by him responded in writing on 16 September 2025. It is submitted that when Hamze Awfarah subsequently signed the document confirming that he wished to leave the UK voluntarily, on 25 September 2025, it can be inferred that Hamze Awfarah did not wish to be present at the hearing of the reference for the purposes of paragraph 6 of Schedule 3 to the CJA 1988.

It is submitted that no unfairness arises from his absence from the hearing of the application for leave to review his sentence. The determination of the issue of undue leniency will be dealt with by the court on the basis of the material before the sentencing judge, and there is no reason to conclude that Hamze Awfarah has withdrawn his instructions from counsel who will be able to act to protect his best interests, based upon the written response which they have already provided in those proceedings.

Moreover, there is a strong public interest to be served in proceeding with the application, in order to allay concern at what may appear to be an unduly lenient sentence, and to ensure that if Hamze Awfarah should return to the UK he would be obliged to serve the sentence which ought properly to have been imposed upon him at the sentencing hearing.

On behalf of Hamze Awfarah, Rebecca Tanner, who appeared below and has seen much of the documentation set out in the chronology, has provided a skeleton argument dated 5 January 2026, in which it is said, and we accept, that those instructed on behalf of Hamze Awfarah did not have any contact with him following the sentencing hearing, save for the letter which they sent to him on 19 September 2025, albeit the correspondence was sent to HMP Doncaster, rather than HMP Moorland.

Therefore, it is submitted that it cannot be assumed that when he signed the document consenting to his deportation, he was aware of the application for leave to review his sentence, such that he cannot necessarily be said to have voluntarily absented himself from the hearing.

Furthermore, although those originally instructed by Hamze Awfarah have sought to assist the court by responding to the application for leave to review his sentence, they have received no express instructions from him to do so.

It is submitted that it would be wrong in principle to proceed to hear the application for leave in the absence of Hamze Awfarah, when the reason for his absence was due to his erroneous deportation by the Home Office. Moreover, that there is no public interest in proceeding with the application due to the fact that Hamze Awfarah is absent from the jurisdiction and will not therefore have to serve any increased sentence which the court might impose.

Although we are satisfied, from the clear terms in which section 34(2) of the UKB Act 2007 is couched, that the SSHD was not precluded from making either of the deportation orders in this case, it is clear that the governors who authorised the removal of Sadnam Singh and Hamze Awfarah under the Early Removal Scheme ought not to have done so.

Not only was this contrary to [2] of PSI 04/2013, but also page 7 of the HO Guidance 2015. As the latter guidance makes clear, one of the reasons for this is that under paragraph 6 of Schedule 3 to the CJA 1988, a person whose sentencing is subject to a reference under section 36 is entitled to be present at the hearing, if he wishes. However, another important reason is that a foreign criminal will only be entitled to take advantage of the Early Removal Scheme after he has served the minimum pre-removal custodial period. As this is partly calculated on the basis of the foreign criminal having served a percentage (currently 30%) of the requisite custodial period, under section 260 of the CJA 2003, in the event that the foreign criminal’s sentence is increased by the court, so too would be the period which he will have to serve before he may be removed from prison under the Early Removal Scheme.

Therefore, a foreign criminal who is removed from prison under the Early Removal Scheme and deported (voluntarily or otherwise) whilst there is an outstanding application by the Attorney General for leave to refer their sentence as being unduly lenient, will not only avoid being liable to serve any increased sentence, but will also have been able to take advantage of the Early Removal Scheme at an earlier stage than he would have otherwise have been entitled.

In these circumstances, we consider it surprising that the Attorney General’s Office, which originates the applications for leave to refer sentences as being unduly lenient, has not established a procedure for notifying the Home Office, which is responsible for the custody arrangements relating to prisoners, when such applications are made, so as to enable the Home Office to ensure that no foreign criminals are removed from prison under the Early Removal Scheme until the conclusion of those proceedings.

However, as it is common ground that through oversight, both Sadnam Singh and Hamze Awfarah were authorised for removal from prison under the Early Removal Scheme and voluntarily deported, prior to the hearing of the Solicitor General’s applications for leave to refer their sentences as being unduly lenient, the question arises as to whether and if so to what extent the court should hear those applications.

In our judgment this will be dependent upon the extent to which the two offenders are enabled, despite their absence, to have a fair hearing of these applications, in accordance with the principles in R v Jones. In the event that a fair hearing cannot take place, then the pursuance of the applications would clearly amount to an abuse of the process of the court and be liable to be stayed under the first of the two categories identified in R v Maxwell [2010] UKSC 48. We do not otherwise consider that a stay would be justified under the second category of abuse of process as there has been no deliberate manipulation of the procedure and, in view of the importance of the unduly lenient scheme to maintaining public confidence in the sentencing process, we do not consider that continuing with the proceedings would damage the integrity of the criminal justice system.

In view of the imperative that each of these offenders are afforded a fair hearing of the applications for leave to refer their sentences as being unduly lenient, we do not consider it necessary to reach a concluded view as to whether their actions in signing disclaimers seeking their voluntary removal and deportation amounted to complete waiver of their right to be present at the hearing.

That is not to suggest that the fact that each of them signed such a document is not of significance. On the contrary, had their removal and deportation been involuntary, then it seems to us that, as in Tasie, it may well have been unfair to hear the applications for review in their absence, as the State would in effect have deprived them of the right to be present. Moreover, we consider that it is unlikely, given the respective dates of the applications for referral by the Solicitor General, as compared with the signing of the final disclaimers relating to deportation, that the offenders were not aware of the former when the latter were signed by them.

In our judgment the nature of the issues which will be required to be reviewed under the unduly lenient scheme is of particular relevance to the question as to whether a fair hearing of the applications can take place. In this regard, unlike a criminal trial, the hearing concerns a review of the sentences imposed upon each of the offenders, and we, like the court in R v Gavin & Tasie, consider that the discretion to hold a hearing in their absence may be more readily exercised in relation to sentencing, than at a trial where guilt or innocence is at stake. Moreover, it is of significance that both offenders were legally represented at the original sentencing hearing by those who have very properly agreed to continue their representation before us, and we do not consider that any inference can be drawn from the offenders’ actions that either of them have sought to withdraw their instructions from their original legal representatives.

Although we appreciate that if the sentences are considered to have been unduly lenient then, at the discretionary stage, when the court considers whether to quash the sentences and substitute an alternative sentence, other material is capable of being considered by the court, this stage will only be reached if and when the court determines that the sentences are unduly lenient. Moreover, not only will that issue be determined solely upon the material which was available to the respective sentencing judges at the original sentencing hearings, but the determination as to whether the sentences are unduly lenient will be in line with the rigorous principles which we have outlined earlier in this judgment.

In our experience of such hearings, (as acknowledged by those representing both of the offenders), where an offender has received a sentence of immediate imprisonment in respect of which the Solicitor General seeks a review, the only additional material which is normally provided to the court to consider when deciding whether to increase an unduly lenient sentence is a report from the prison where the offender is being held, reporting on their progress in custody. Although we do not suggest that such a report is of no significance, it inevitably has limited value in relation to the determination as to whether and to what extent an unduly lenient sentence should be increased.

In the present case although we do not have such a report in respect of Sadnam Singh, we do have one relating to Hamze Awfarah dated 23 September 2025, which is generally positive albeit there is a reference to some negative behaviour entries. It seems to us that, if the hearings are to proceed, any perceived unfairness arising from the absence of a such a report in Sadnam Singh’s case may be overcome by assuming that he had been making positive progress in prison before his deportation, and in the case of Hamze Awfarah, to ignore the negative behaviour entries in what is otherwise a positive report.

In these circumstances, we are satisfied that given the very limited scope of the issues which arise in relation to applications for leave to refer sentences as unduly lenient, progressing to hear such an application in relation to Sadnam Singh and Hamze Awfarah, where each of them will have the benefit of being legally represented by those who conducted the original sentencing hearing, would not breach any of their Article 6 rights and that they will, despite their absence, be enabled to have a fair hearing of the review of their sentences.

We are also satisfied that, given the importance of maintaining public confidence in the criminal justice system, such reviews should take place provided that they can be heard fairly. Moreover, we do not consider that there is no utility in determining the applications at this stage. Not only will it be of significance to others involved in the original criminal proceedings, including the victims, but it will be of importance to ensure that, if the sentences are determined to be unduly lenient and increased, should an offender return to the UK he will be obliged to serve the increased sentence.

Before turning to deal with the applications for leave to refer these sentences as being unduly lenient, we make these observations. Firstly, we trust that the Attorney General’s Office will put in place a procedure for notifying the Home Office when it applies to the court for leave to refer the sentence of a foreign criminal, so that this type of situation does not arise in the future. Secondly, we make it clear that we have decided to hear the applications in this case based upon the particular circumstances relating to each of the offenders, and it should not be assumed that if a similar occurrence arose in the future the court would necessarily proceed to hear the application.

As we have previously set out, Sadnam Singh and his co-accused were each convicted of two offences of sexual assault, and sentenced by the trial judge to a total of 30 months’ imprisonment on 16 June 2025.

The offences took place on 7 February 2024, when the 14-year-old victim was home on her own. Her mother, who was at work, phoned and asked the victim to expect delivery of a television which she had ordered.

Those responsible for the delivery were Sadnam Singh and his co-accused, Navjot Singh, who arrived at the victim’s home shortly afterwards. The victim, who was still wearing her pyjamas, opened the front door and they came inside carrying the television. The victim believed that they would leave the television on the upstairs landing, but instead Sadnam Singh and his co-accused carried it into the victim’s bedroom.

After a period of silence in the bedroom they asked her what her name was and told her that she was pretty. They then said, "Is that it?" and the victim said, "Yes". Sadnam Singh asked, "Am I not gonna get anything?" and "Are we not gonna get anything?" Sadnam Singh then pulled the victim towards him and grabbed her bottom over her clothing. The victim froze. He asked for a kiss and then forcibly kissed her (count 2). She tried to fight him off, but he was bigger and stronger than her. He pushed her against the wall and put his hands down her pants, touching her bottom over her knickers but under the outer clothing (count 1). The victim said she was aged 14, but the respondents laughed. They grabbed her pyjama top and tried to pull her top down to remove it. She tried to push their hands away. One of them asked the victim if there was anyone else in the house and the victim said her brother was at home. Sadnam Singh, on hearing this, went down the stairs and tried to get out.

The victim was in the doorway to her bedroom. Navjot Singh, who was still in the bedroom, said, "Come here". She refused. He grabbed the back of her neck, kissed her on the lips and grabbed her. She tried to push him away and turned her head away. He bit her on the lips, before kissing her neck and cheek (count 3). He then put his hands on her bottom and grabbed her breasts over her clothing (count 4). Navjot Singh then stopped and followed Sadnam Singh down the stairs. Before leaving through the front doors the offenders laughed and said "bye".

It is perfectly apparent that immediately upon their departure the victim appeared to, as the judge put it, collapse. The respondents were said to have smiled as they went out.

The victim phoned her mother. She was crying and said she had been touched up by the two delivery men.

The respondents returned to the van. Navjot Singh came back to the front door and started banging on it. That is, it seems, because it appeared that there were instructions either to erect the screen or the stand, or because he needed a signature. The mother returned. Navjot Singh claimed he needed a signature. The mother refused and said she would call the police, immediately reporting that she had been told by her daughter that she had been touched up. The respondents said something and drove away. The mother saw that the victim was in tears and distressed.

The police contacted the respondents' employers, and the respondents attended the police station the same morning and were arrested.

The victim said that she felt the need to self-harm, sometimes every day. She felt worthless, conflicted and confused. She feared going outside and could not stand being alone because she was terrified that the respondents might come back. She was unable to answer the door. She could not go back to her bedroom and slept with her mother until they were able to order new furniture and rearrange her bedroom so it did not seem the same place where everything had happened. She felt like she was having a panic attack every time she went in there. Her school life was massively impacted. She fell so far behind at school that she felt she would not pass her GCSEs.

Her mother, in her victim personal statement, said that the victim had previously been top of her class at school and doing all her homework, but since the incident had rarely gone out, her grades had dropped and she rarely went to school. The mother also described the victim's self-harming behaviour.

The offender, Sadnam Singh, was 27 years of age at the time of the offences, and prior to these offences he had no previous convictions.

A pre-sentence report disclosed that the offender continued to deny the offences and accused the victim of fabricating what had occurred. He was in work and responsible for his family. Although, there is no prison report in his case reporting on his progress whilst he was in custody, we are, for the reasons we provided previously, prepared to assume that had one been available it would have shown that he had been progressing well whilst in custody.

In his sentencing remarks, the judge said that,

“The guidelines cannot cater for every situation. I could have taken a two-year starting point and then aggravated it, or I could have taken a four-year starting point and reduced it accordingly. But I repeat, there is merit in the submissions your barristers have made and, applying those submissions to the guidelines, I have arrived at a sentence of three years. There are reductions from that sentence because of your personal mitigation, but that would still leave a sentence, in my judgment, of two and a half years"

On behalf of the Solicitor General, it is submitted that the offences fell within Category 1A of the offence specific guideline, as there was severe psychological harm suffered by the victim, and the offender had acted together with his co-accused to commit the offences. Therefore, the appropriate starting point was one of 4 years’ custody with a category range of between 3 – 7 years.

Thereafter, there were a number of aggravating factors which ought to have increased the sentence, including the age of the victim and her vulnerability, being alone in her own home, before any reduction was made to take into account of the mitigation available to the offender.

It is submitted that the judge’s approach was in error and has resulted in an unduly lenient sentence.

In their original written response, those instructed on behalf of Sadnam Singh, pointed out that the judge had presided over the trial and was therefore particularly well placed to assess the seriousness of the offences. Moreover, that the judge was entitled to take the view that the offences fell between category 1A and 2A of the guidelines, such that the resulting sentence was, when properly reduced to reflect the mitigation available to the offender, justified, rather than unduly lenient.

However, as Mr Witcher observed during the course of the hearing, in view of the court’s decision relating to Navjot Singh, there is nothing further that he can advance on behalf of Sadnam Singh, as these two offenders were in exactly the same position.

We, like the court which heard the application for leave to refer the sentence imposed upon Navjot Singh as being unduly lenient, consider that the judge was in error when he placed this offending between category 1A and 2A of the offence specific guideline.

In our judgment these offences, like those of his co-accused, fell clearly within category 1A of the guideline. Category 1 harm had been caused, as the victim had suffered severe psychological harm as a result of the offences, and category A culpability arose from the offender having acted together with his co-accused to commit these offences. Therefore, the appropriate starting point was one of 4 years’ custody with a category range of between 3 – 7 years.

Furthermore, the judge does not appear to have made any increase to take into account the significant aggravating factors which were present in this case, including both the young age of the victim and her vulnerability arising from being alone in her home.

We have reminded ourselves of the principles to be applied to an application under section 36 of the Criminal Justice Act 1988, which have been summarised by this court in Attorney-General’s Reference (Egan), [2022] EWCA Crim 1751, namely that,

“(1)

The judge at first instance is particularly well-placed to assess the weight to be given to competing factors in considering sentence.

(2)

A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate.

(3)

Leave to refer a sentence should only be granted by this Court in exceptional circumstances and not in borderline cases.

(4)

Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into gross error”.

Bearing these matters in mind, we consider that the resulting sentence imposed by the judge was outside the range of sentences which the judge at first instance might reasonably consider appropriate, and was therefore unduly lenient and that the least sentence which ought to have been imposed upon Sadnam Singh, bearing in mind the mitigation which was available to him, was one of 4 years’ imprisonment.

Therefore, we grant leave to refer his sentence and allow the reference. We will quash the sentence of 30 months’ imprisonment on count 1 and substitute a sentence of 4 years’ imprisonment. The concurrent sentence of 6 months’ imprisonment on count 2 will remain, resulting in a total sentence of 4 years’ imprisonment.

As we have previously set out, Hamze Awfarah pleaded guilty to eight counts on indictment, was sentenced to a total period of 3 years’ imprisonment on 15 August 2025.

The indictment represented a series of offences committed by the offender over a period of about 10 days, when he stole or attempted to steal items from local convenience stores, whilst armed with a knife and wearing a balaclava.

Count 1 took place at approximately 2am on 25 February 2025, when the offender, wearing a balaclava, entered the Ozmen International store on London Road, Sheffield. The offender climbed onto the counter, and produced a large knife from his pocket, which he waved at the shopkeeper, Mr Singh; threatening him. Another member of staff intervened. The offender left the store without stealing anything.

Count 3 occurred approximately an hour later, at around 3am, when the offender entered the Londis store on St Mary’s Road, Sheffield, where Mr Kurunamaharja was working the night shift. The offender was wearing a mask, showing only his eyes. The offender asked for two bottles of vodka. Mr Kurunamaharja went behind the counter and removed two bottles from the shelf. However, he did not place them on the counter as he wanted to receive payment first. When asked for payment, the offender told Mr Kurunamaharja to relax. The offender then produced a large kitchen knife, approximately 12 inches in length, from his pocket. He picked up the bottles and left the store. The total value of the stolen bottles of vodka was £18.54.

Count 6 and 7 took place on 28 February 2025, when Mr Deshni was working at the Thorough Goods Store on City Road, Sheffield. At approximately 7.40am, two customers were present inside the store. Whilst serving the first customer, he commented to Mr Deshni that the other customer, the Offender, smelled of alcohol. Mr Deshni saw the offender move towards the exit of the store, and leave. However, he returned a few seconds later taking a packet of sweets that were on display inside the doorway. Mr Deshni followed the offender outside and asked for payment for the items. The offender said something, although Mr Deshni could not hear what he had said. Mr Deshni again asked for payment. The offender reached in the chest area of his coat and produced a knife. Mr Deshni described this as a large bread knife with a silver blade. Mr Deshni retreated into the store and shut the door behind him to stop the Defendant returning inside.

Counts 9 and 10 occurred on 1 March 2025, when Mr Kurunamaharja was again at work at the Londis store on St Mary’s Road, Sheffield. At approximately 5.00am the offender entered the store, and climbed on the counter, from where he picked up a large bottle of Smirnoff vodka, valued at £22.00. Mr Kurunamaharja immediately recognised the male as the same person who had robbed the store on 25 February 2025. The offender pulled a knife out and Mr Kurunamaharja asked him not to hurt him, to which the offender said, ‘be careful’. The offender took the bottle and left.

Count 11 took place at approximately 10pm on 2 March 2025, when the offender again entered the Londis store on St Mary’s Road, Sheffield and took a bottle of vodka in similar fashion to what had occurred the day before. The incident was caught on CCTV. Mr Kurunamaharja subsequently viewed the CCTV footage and identified the individual as the same person who had robbed the store on 25February 2025 and burgled the store on 1March 2025.

Count 12 took place a few days later on 6 March 2025, when Naveen Jayaraman was working at the Londis store on St Mary’s Road, Sheffield. At approximately 3.35pm, Mr Jayaraman was serving two school children. Two other school children were in the wider shop area. A male, subsequently identified as the offender, entered the store. He approached the till. He pulled out a kitchen knife, approximately 20 centimetres in length. This caused the children at the counter to run from the store. The offender demanded alcohol. Mr Jayaraman refused to provide it. The Offender reached over the counter, stepped on the cash register, and retrieved a litre bottle of vodka, valued at £22.79, from behind the till area. He then left the store.

The offender was arrested and interviewed by the police in relation to these matters on 28 April 2025. He was forensically linked to one of the offences, and was able to be identified by the clothing which he had been wearing. He did not answer questions.

The offender was 25 years of age at the time of the offences. He is now 26 years of age and, prior to these offences, he had no previous convictions.

There was a pre-sentence report available to the court which disclosed that he had been brought up by his family in Sheffield, and that after leaving school with GCSEs he had gained employment in a warehouse. However, he left that after a while and was unemployed at the time of the offending. About a year before the offences occurred, the offender had been asked to leave the family home where he had been living and thereafter resided in hostel accommodation. It was unclear as to the reason why he had been asked to leave, as although the offender suggested that it was because he had been drinking alcohol of which his family did not approve, there was information from the police that he had been asked to leave because of his violent behaviour.

Whatever, the reason for his moving into hostel accommodation, the offender said that he felt isolated, as a result of which his consumption of alcohol worsened. As he was not working, he was unable to afford to pay for his alcohol, and instead resorted to stealing it. He admitted that he had carried a knife with him when he went into the various stores and claimed that this was just to scare those inside and he had no intention to cause them physical harm.

The offender acknowledged that those within the stores would have been very frightened and accepted accountability for his actions, which he stated were completely out of character for him.

There were a number of letters available to the court from various family members and friends, including his current partner, all of whom spoke positively about him as a good person who had acted out of character in committing these offences.

There was also a letter from the offender in which he expressed his remorse for his offending and his determination to alter his behaviour in the future.

As we mentioned previously, there is an up-to-date report from prison which concludes that the offender has been behaving satisfactorily whilst serving his sentence.

The prosecution had provided the court with a written sentencing note in which it made submissions as to the categorisation of the various offences under the relevant sentencing guidelines.

In respect of the offences of robbery, it was submitted that these were category A3 offences, category A culpability due to the production of the bladed article, and category 3 harm as none of those who had been confronted by the offender had provided victim personal statements. Therefore, the appropriate starting point for these offences was 4 years’ custody with a category range of between 3 – 6 years.

It was submitted that the offence of theft was a category B3 offence, category B culpability because the offender’s culpability fell between the factors as described in A and C, whilst category 3 harm as low-value goods were stolen. Therefore, the appropriate starting point was a high-level community order with a category range of between a low-level community order and 36 weeks’ custody.

It was submitted that the offence of burglary at count 9 was a category A3 offence, category A culpability due to the knife being carried by the offender, whilst category 3 harm due to the low value of the goods which were stolen. Therefore, the appropriate starting point was 6 months’ custody with a category range of between a medium level community order and 1 year’s custody. The burglary at count 11 was submitted to be a category B3 offence, category B culpability as the offender’s culpability falls between the factors as described in A and C, whilst category 3 harm due again to the low value of the goods which were stolen. Therefore, the appropriate starting point was a medium level community order with a category range of between a low and high-level community order.

Finally, with respect to the offences of threatening with a bladed article, it was submitted that these were category A1 offences, category A culpability due to the use of the presence of the bladed article, whilst category 1 harm as the circumstances involved a risk of serious disorder. Therefore, the appropriate starting point was 2 years’ custody with a category range of between 18 months to 3 years.

The prosecution identified aggravating factors which applied to some of these offences, as the timing of some of the offences, the wearing of a disguise in the form of the balaclava.

The defence did not seek to challenge the categorisation of the offences within the relevant sentencing guidelines, and sought to identify the mitigation available to the offender, including his age, his previous good character, his remorse and determination to address his future behaviour.

The Recorder accepted the prosecution’s submissions in respect of the categorisation of the offences under the sentencing guidelines, together with the various aspects of mitigation identified by the defence. In this respect he noted that the offender was still a relatively young man who was able to lead a law-abiding and productive life. Moreover, that the offences were committed within a very short period of time, and he considered that not only was the offender genuinely remorseful but also well-intentioned at the moment to make the best of his time in custody and live a productive life on his release.

The Recorder indicated that the offender was entitled to a 25% reduction in his sentence to reflect the timing of his pleas of guilty, and went on to state that,

“The principal sentence will be in relation to the two offences of robbery and the offence of attempted robbery. Those matters are aggravated by the use of a knife, although of course I bear in mind that this factor that which brings those offences within the particular category of the guidelines to which I have referred. The sentences in relation to the other offences will all be concurrent. In relation to the robberies, each of the robberies, I bear in mind that whilst individually it seems to me they fall at the lower end of the category, there are three offences. Against that, as I have indicated, you are someone who I accept is remorseful and of hitherto good character. In all the circumstances, I take a starting point of four years’ imprisonment, I discount that by a year to reflect your guilty plea, and the sentence in relation to the two offences of robbery and the attempted robbery will be one of three years’ imprisonment. As I have said, all those sentences concurrent”.

On behalf of the Solicitor General, Mr Holt makes it clear that no issue is taken with the categorisation of any of the offences under the relevant sentencing guidelines, albeit it is pointed out that the Recorder gave no reason for his view that the offences of robbery and attempted robbery fell, “at the lower end of the category” which Mr Holt submits is unjustified.

However, his main submission is that in the event that the Recorder decided to identify lead offences, namely the robberies and attempted robbery, and to impose concurrent periods of custody in relation to the other offences, it was necessary for the period of custody imposed in relation to those lead offences to reflect the totality of the offender’s criminality arising from the indictment. It is submitted that Recorder failed to do so and that this has resulted in the sentence imposed upon the offender being unduly lenient.

On behalf of the offender, Ms Tanner submits that the offender had the benefit of compelling personal mitigation, and that given the contextual background in this case, namely that the offences took place at a time when the offender had become estranged from his family and his consumption of alcohol had escalated, the sentence imposed upon him, whilst it may be considered lenient, was not unduly so. She points out that the offender is still relatively young and that this is his first custodial sentence. Moreover, that he appears to be using his time in custody constructively and that there is every good reason to believe that he will not reoffend upon his release. In these circumstances, she submits that this court should not interfere with the sentence imposed upon the offender in the lower court.

Although we accept that the spate of offences which the offender committed in the early part of 2024, not only spanned a relatively short period of time but appear to be out of character for the offender, they represented six separate occasions upon which the offender whilst armed with a knife and wearing a balaclava, in order to seek to prevent his identification, targeted local convenience stores in order to steal or attempt to steal goods.

Individuals who work in these type of stores are vulnerable to this type of attack, especially whilst working in the early hours of the morning. Moreover, during the daytime, others may be present, including young children, as occurred during one of these incidents. Although there was no evidence as to the degree of harm which had been caused to any of these individuals, it is to be anticipated that at the very least some degree of personal alarm would have been caused to them at the time, together with some degree of apprehension to being exposed to such events in the future.

Mr Holt has properly brought to our attention the Sentencing Council’s overarching guideline on totality, and the example which is given of where consecutive sentences will ordinarily be appropriate, namely where offences are of the same or similar kind but the overall criminality will not sufficiently be reflected by concurrent sentences, such as where offences are committed against different people, such as repeated thefts involving attacks on several different shop assistants.

However, given the fact that some of the offences in this case were offences of robbery, which has a maximum sentence of life imprisonment, we make no criticism of the Recorder’s decision to impose concurrent sentences of imprisonment in this case, provided the overall sentence satisfied the overriding principle of totality, namely that it,

Turning then to the offences of robbery, we agree that these were category A3 offences, such that the appropriate starting point for each of the offences was one of 4 years’ custody. However, to the extent that the Recorder considered that individually the offences “fell at the lower end of the category” we respectfully disagree. We note that no reason for this view was provided, and we do not consider that the circumstances giving rise to these offences lowered the offender’s culpability for them.

On the contrary, it seems to us that there were a number of aggravating factors which had the opposite effect, and which do not appear to have featured in the sentencing remarks. In relation to count 3, as we have already mentioned the location and timing of the offence gave rise to a degree of vulnerability for the victim. Whilst, in relation to count 12, children were present who were caused to run away from the store. Moreover, it is accepted that all of these offences were committed by the offender whilst he was under the influence of alcohol and in relation to each offence the offender sought to conceal his identity by wearing the balaclava.

We take the view that these aggravating factors would have increased the seriousness of the offences of robbery to the extent that they would have justified a significant increase in the notional sentence for each of these offences, even before consideration had to be given as to what further increase was required to reflect the fact that the sentences imposed on these offences had to take into account the offender’s criminality arising from the indictment as a whole.

Having carried out this exercise for ourselves, and whilst we acknowledge that there was significant mitigation available to the offender, most particularly his lack of previous offending and his relatively young age, we take the view that in order to achieve a just and proportionate reflection of the offender’s overall criminality in this case, a significantly longer notional period of custody ought to have been identified, prior to application of the 25% reduction to reflect the timing of the offender’s pleas of guilty.

We have reminded ourselves of the principles to be applied to an application under section 36 of the Criminal Justice Act 1988, which have been summarised by this court in Attorney-General’s Reference (Egan), [2022] EWCA Crim 1751, namely that,

“(1)

The judge at first instance is particularly well-placed to assess the weight to be given to competing factors in considering sentence.

(2)

A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate.

(3)

Leave to refer a sentence should only be granted by this Court in exceptional circumstances and not in borderline cases.

(4)

Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into gross error”.

We consider that the notional period of custody, which was erroneously referred to as the “starting point”, namely four years, was outside the reasonably appropriate range, and in our judgment the least notional period which ought to have been identified was one of six years, from which it would be necessary to reduce by 25% to reflect the timing of the offender’s pleas of guilty, resulting in a period of 4½ years’ imprisonment.

Therefore, we will grant leave and allow the reference, to the extent that we quash the sentences imposed in relation to counts 3 and 12, and instead substitute sentences of 4½ years on each count. Those periods will run concurrently with each other and concurrently with all of the remaining periods of custody already imposed upon the offender in respect of the remaining counts on the indictment, which will remain as imposed by the Recorder. Therefore, the total sentence is now one of 4½ years’ imprisonment.