Introduction

This commentary reviews the judgment of Mohamed, R. v ([2025] EWCA Crim 235) delivered by the England and Wales Court of Appeal (Criminal Division) on February 25, 2025. The case concerns an application by His Majesty's Solicitor General to refer a sentence under section 36 of the Criminal Justice Act 1988 on the basis that the sentence imposed in the primary trial was unduly lenient. The offender, who pleaded guilty to a robbery offence along with summary charges relating to driving without a licence and insurance, had been initially sentenced to 21 months’ imprisonment suspended for 24 months. The case garnered attention because of the significant disparity between the notional sentence expected under the applicable guidelines and the sentence actually imposed by the sentencing court.

The key issues revolve around:

• The appropriate categorization of harm and culpability under the Sentencing Council guidelines.
• The judicial weighting of aggravating versus mitigating factors in arriving at the final sentence.
• The correct application of the reduction for a later guilty plea.
• Whether the sentencing judge’s rationale, particularly the “tempering” due to the fact that only one offender was caught, amounts to a gross error warranting referral under section 36.

The parties involved include the offender (respondent), represented by Mr Short, and the Solicitor General represented by Mr Martin, who contested that the sentencing judge erred by undervaluing the aggravating factors and overvaluing mitigating ones.

Summary of the Judgment

The Court of Appeal held that the sentencing judge committed several errors in the calculation and deliberation of the sentence. Specifically, the appellate court found that:

• The sentencing judge’s decision to lower the notional sentence to 28 months and apply a 25% reduction for a guilty plea was flawed, given the stage at which the plea was entered.
• The judge’s approach in weighing mitigating factors (such as the offender's age, prior conduct, and the contextual impact of serving time on remand) was misplaced in light of the pronounced aggravating factors, including the use of a bladed article and the nature of the victim’s harm.
• The justification that the sentence should be tempered because not all co-offenders were apprehended was rejected.
• The proper application of the Sentencing Council guidelines would have resulted in an imputation of a notional sentence in the range of 4–5 years’ custody, which after applying an appropriate 20% reduction for the guilty plea should have resulted in a sentence of 4 years 9 months’ imprisonment.

Accordingly, the appellate court quashed the suspended sentence order and substituted it with a custodial sentence of 4 years 9 months, directing the offender to surrender immediately to custody.

Analysis

Precedents Cited

The judgment refers to several key precedents and established principles which have guided judicial decisions in cases challenging sentence leniency. Among the noteworthy citations are:

• Attorney-General’s Reference (R v Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16: This case provided a summary of the established principles regarding the application of section 36 of the Criminal Justice Act 1988, emphasizing the discretion of the sentencing judge and the notion that a sentence is unduly lenient only if it falls outside the range of what the first-instance judge could reasonably consider.
• Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R 366: Lord Lane CJ’s commentary underscored that even in cases of alleged leniency, the appellate court retains discretion over whether to exercise powers under section 36.
• R v Fawcett (1983) 5 Cr App R(S) 158: This precedent was invoked in relation to the sentencing disparities among co-defendants and addressed the principle of assessing parity in group offending cases.

These precedents helped frame the court’s assessment of the factual matrix and provided guidance on the limits of judicial deference when a sentence strays significantly from the expected range, thereby influencing the conclusion that the sentence was indeed unduly lenient.

Legal Reasoning

The Court of Appeal’s reasoning was grounded primarily in two aspects: the error in the arithmetic of the notional sentence and the misapplication of mitigating factors. Key elements include:

• Mis-categorization of Harm: The sentencing judge was critiqued for not consistently aligning the factual circumstances with the established categories of harm as prescribed by the Sentencing Council guidelines. Despite clear aggravating factors—such as the use of a knife to intimidate the victim and the grouping requiring a concerted assault—the judge opted for a categorization that suggested a reduction in severity, effectively placing the case at the borderline between categories 2 and 3.
• Faulty Mitigation Analysis: The judge’s reliance on factors such as the offender’s age and the fact he was the sole convict who was caught was regarded as insufficient to counterbalance the seriousness of the offence. Furthermore, the application of a 25% reduction for a guilty plea, deemed appropriate only for early-stage pleas, was considered excessive given the timeline of events in this case.
• Numerical Inconsistency: The appellate court made clear that even minimal arithmetic errors in deriving the notional custodial term (i.e., reducing to 28 months) had far-reaching implications and contributed materially to the sentence being outside the range endorsed by established guidelines.
• Failure to Account for Prior Convictions: The presence of a previous robbery conviction was listed as an aggravating factor that should have elevated the starting point for the sentence, a factor that was combined inappropriately with a series of marginal mitigating considerations.

Ultimately, the reasoning culminated in the conclusion that a proper application of the guidelines should have resulted in no less than a 6-year notional sentence, which, applying a reduced plea factor of 20%, translates to a set sentence of 4 years 9 months of imprisonment.

Impact on Future Cases and Legal Areas

This judgment sets an important precedent in two significant respects:

• Clarification on Sentence Sponsorship Under Section 36: The decision reinforces that appellate interference under section 36 is justified only when the sentence significantly deviates from what a first-instance judge might reasonably award. Future cases will likely consider this benchmark when challenging sentences perceived as unduly lenient.
• Enhanced Scrutiny of Mitigating Discounts: The ruling acts as a cautionary signal to district judges regarding the application of plea discounts and the weighting of mitigating circumstances. This is likely to prompt a more rigorous review of the numerical and qualitative factors influencing sentencing decisions, especially in cases involving violent and group offences.

Legal practitioners and future sentencing courts will need to ensure that all aggravating factors are properly balanced against any mitigating evidence, while strictly adhering to both the letter and spirit of the Sentencing Council guidelines.

Complex Concepts Simplified

The judgment involved several legal concepts that can be intricate for those without a legal background. For clarity, the following points explain these concepts:

• Notional Sentence: This is an estimate of the custodial term that would have been imposed at trial, before any reductions (for example, for a guilty plea) are applied.
• Aggravating vs. Mitigating Factors: Aggravating factors are circumstances that increase the gravity of an offence (e.g., use of a knife, group offending, prior convictions), while mitigating factors are those that may lessen the offender’s culpability (e.g., age, early guilty plea, limited prior offences). The key here is striking the right balance.
• Suspended Sentence: A sentence where custody is not immediately enforced, allowing for a period of probation; however, if it is assessed that the severity of the offence mandates imprisonment, a suspended sentence may be deemed inappropriate.
• Reduction for Guilty Plea: Traditionally, a plea entered early in the process can lead to a reduction in the sentence (expressed as a percentage). The controversy in this case centered on whether a 25% discount was too large given the timing of the plea.

Conclusion

The Court of Appeal’s judgment in Mohamed, R. v ([2025] EWCA Crim 235) provides an important commentary on judicial discretion in sentencing. By thoroughly examining the numerical derivation of the notional sentence and the rationale behind applying plea reductions, the Court emphasized that even seemingly minor arithmetic errors and misweighted factors can lead to a sentence that lies outside the acceptable range.

This judgment is significant in that it:

• Clarifies that aggravating factors, such as prior convictions and group offending, must receive appropriate weight.
• Establishes a limit on the extent of reductions applicable for late-stage guilty pleas.
• Sends a strong message that deviation from the Sentencing Council guidelines, particularly where numerical precision is concerned, may constitute a “gross error” warranting appellate intervention under section 36 of the Criminal Justice Act 1988.

Overall, the judgment serves as a crucial precedent ensuring that sentences reflect the true gravity of the offence and that any departure from established sentencing ranges will be subject to rigorous appellate scrutiny.