Hostility under Sentencing Act 2020 s.66 and Sentencing Guidelines: Avoiding Double Counting Where Hostility Is Integral to Culpability

1. Introduction

Omar, R. v ([2026] EWCA Crim 92) concerns a renewed application for leave to appeal against sentence by a 24-year-old applicant convicted of conspiracy to commit robbery under section 1(1) of the Criminal Law Act 1977. The conspiracy comprised a campaign of nine robberies (eight in Birmingham, one in Derby) committed between April 2023 and February 2024.

The conspirators used fake profiles on Grindr to target gay and bisexual men for financial gain, accompanied by threats, detention, humiliation, and (in some incidents) weapons. The Court made an anonymity order protecting victims’ identities, balancing open justice against privacy.

The key appellate issues were: (i) how hostility related to sexual orientation should be treated when it appears both in guideline culpability factors and as a statutory aggravating factor under section 66 of the Sentencing Act 2020; (ii) whether the judge erred by “double counting” hostility and by not adopting a “two-stage uplift” approach; (iii) the weight given to youth/immaturity; (iv) the applicant’s role within the conspiracy; and (v) whether the sentence was manifestly excessive.

2. Summary of the Judgment

The Court of Appeal (Criminal Division) refused the renewed application. It held that:

  • Although the sentencing remarks were unclear as to how “double counting” was avoided, the judge was entitled to treat the offence as Level A culpability because hostility based on sexual orientation was central to the offending.
  • The hostility was inherent and integral to the conspiracy’s modus operandi; therefore, a discrete “two-stage” approach was not sensibly applicable.
  • The judge did consider the applicant’s youth and immaturity and did not adopt a “cliff edge” at 18.
  • The applicant was properly sentenced as a conspirator in a campaign of robberies; the judge was not required to anatomise each participant’s precise acts within each event.
  • Applying the “Robbery – street and less sophisticated commercial” guideline framework, the Court considered the applicant’s direct involvement included robberies causing Category 1 harm, and the totality of the campaign justified a sentence well above the single-offence range. A sentence of 17 years and 3 months was not arguably excessive.

3. Analysis

3.1 Precedents Cited

R v Kelly & Donnelly [2001] EWCA Crim 170, [2001] 2 Cr App R (S) 73

The Court noted that R v Kelly & Donnelly suggested a “two-stage” approach for racially aggravated offences: (1) identify the sentence absent aggravation; (2) specify an uplift for aggravation, with both stages stated in open court. In Omar, the applicant relied on this to argue that the judge should have stated a non-hostility baseline and a discrete section 66 uplift.

The Court distinguished its relevance, emphasising that Kelly & Donnelly pre-dates the modern Sentencing Guidelines structure and that the two-stage process is not required by statute.

R v Graeme Paul Fitzgerald [2003] EWCA Crim 2875, [2004] 1 Cr. App. R. (S,) 436

R v Graeme Paul Fitzgerald qualified Kelly & Donnelly: where the aggravating element is “so inherent and integral” to the offence that discrete separation is artificial, the court must assess seriousness “as a whole”. This was pivotal in Omar.

The Court applied the Fitzgerald rationale: the conspiracy’s targeting strategy and the victims’ degradation were bound up with hostility related to sexual orientation, making a segmented uplift impracticable.

R v Gargan [2017] EWCA Crim 780, [2018] 1 Cr. App. R. (S.) 6

R v Gargan reinforced that a two-stage approach is more workable where there is a distinct “base offence” independent of hostility; but where “the racial element was the very essence of the offence”, a discrete uplift is unnecessary. Omar used Gargan to support the proposition that “hostility-as-essence” cases are assessed globally rather than arithmetically.

R v Cush [2024] EWCA Crim 1382, [2025] 1 WLR 387 and R v Clarke [2018] EWCA Crim 185, [2018] 1 Cr App R (S) 52

The Court cited R v Cush (and R v Clarke) for the principle that 18 is not a sentencing “cliff edge” and that immaturity may justify treating a young adult more like a child for sentencing purposes. These authorities framed the applicant’s mitigation argument.

R v ZA [2023] EWCA Crim 596, [2023] 2 Cr. App. R. (S.) 45

R v ZA provided the neurodevelopmental context (brain development up to ~25; impacts on impulse control, risk appreciation, and consequential reasoning). Omar accepted this framework but held the sentencing judge had adequately factored it in.

3.2 Legal Reasoning

(a) The core sentencing architecture: guideline culpability, harm, and statutory aggravation

The sentencing judge applied the guideline for “Robbery – street and less sophisticated commercial” (the “Guideline on Street Robbery”). Under that Guideline, “high culpability” includes offending “motivated by, or demonstrating hostility” based on protected characteristics including sexual orientation.

Separately, section 66 of the Sentencing Act 2020 requires a court to treat hostility related to sexual orientation as an aggravating factor and to state in open court that the offence is so aggravated. The Sentencing Council’s “General guideline: overarching principles” reiterates this statutory duty and warns against double counting.

(b) Double counting: accepted risk, but no arguable sentencing error

The Court accepted that the sentencing remarks were unclear as to how the judge avoided double counting when hostility was used both: (i) to place the offence in Level A culpability, and (ii) as a separate section 66 aggravating factor.

However, the Court held that Level A culpability was plainly correct: the conspiracy deliberately targeted men on Grindr and involved homophobic degradation and humiliation as part of the method and impact of the robberies. A lower culpability assessment would understate seriousness.

(c) Hostility as “integral”: why the Kelly & Donnelly two-stage approach was not required

The Court treated this case as falling within the Fitzgerald/Gargan category: hostility was not a detachable feature added to an otherwise ordinary robbery plan, but part of the operative logic of selection, coercion, and control (including the conspirators’ perception that victims would be reluctant to report).

On that basis, the Court found that the two-stage approach from R v Kelly & Donnelly “could not in any event have been sensibly applied”, and there was no criticism in not applying it.

(d) A notable observation on section 66(2)(b) in guideline cases

The Court went further, stating it “doubt[ed] the need” for a judge to make any statement under section 66(2)(b) where, under modern guidelines, hostility based on personal characteristics is already assessed and stated in open court as part of the culpability determination, because requiring a further statement invites double counting.

While the statutory text appears mandatory, the Court’s reasoning signals a practical reconciliation: where hostility is already openly identified within guideline categorisation, the sentencing judge’s public articulation of hostility may be substantively achieved without a separate “uplift recital”. Future cases may have to navigate this tension between formal statutory phrasing and guideline-driven transparency.

(e) Youth and maturity: principles applied, but outweighed on facts

Applying R v Cush, R v Clarke, and R v ZA, the Court held the sentencing judge expressly acknowledged slower maturation in young men and the applicant’s lower maturity than chronological age, and treated it as mitigation. The ground failed because the judge did not ignore the principle; she simply did not allow it to dominate given the gravity and repetition of the offending.

(f) Conspiracy and totality: exceeding a single-offence range

The Court’s final proportionality reasoning is anchored in totality. It identified the applicant’s direct participation in robberies that the judge found to be Category 1 harm, and held that: Category 1A provides a starting point of 8 years (range 7–12 years) for a single robbery after trial, but this was a campaign involving multiple victims, prolonged detention, high financial losses, threats and violence, and sophisticated methods. That combination permitted a sentence “well above” the single-offence range.

3.3 Impact

  • Hostility within guideline culpability vs statutory aggravation: The decision provides a practical appellate steer that where hostility is integral to the offending and is already used to set culpability, courts should be cautious about framing hostility again as a separate uplift in a way that risks double counting.
  • Limits of Kelly & Donnelly in the guidelines era: The judgment reinforces that the Kelly & Donnelly two-stage approach is not universal and may be inapt where hostility is “the essence” of the criminality.
  • Sentencing of “campaign” conspiracies: The case confirms the readiness of appellate courts to uphold sentences substantially above a single-offence range where the criminality is a repeated, planned series of serious offences with multiple victims and severe psychological impact.
  • Young adults: While acknowledging developmental maturity principles, the case illustrates that youth mitigation may carry limited weight when offending is prolonged, organised, and highly harmful.

4. Complex Concepts Simplified

  • “Double counting”: treating the same feature of wrongdoing twice to increase sentence (e.g., using hostility to place the offence in the highest culpability bracket and then adding a further uplift for the same hostility).
  • Section 66 hostility aggravation: Parliament requires courts to treat hostility related to protected characteristics (including sexual orientation) as making an offence more serious.
  • Guideline “culpability” and “harm”: structured tools to measure how blameworthy the conduct was (culpability) and how damaging it was (harm), producing a starting point and range before adjustments.
  • “Integral hostility” (Fitzgerald principle): where hostility is not an add-on but part of the offence’s very nature and method, making it artificial to calculate a separate uplift.
  • “Cliff edge” at 18: the rejected idea that turning 18 automatically removes developmental immaturity as a mitigating factor.
  • Totality in a campaign conspiracy: courts assess the overall criminality across multiple incidents; sentencing is not confined to the range for a single episode.

5. Conclusion

Omar, R. v confirms that in modern guideline sentencing, hostility related to sexual orientation may properly drive the culpability assessment and, where it is inherent and integral to the offending, a discrete Kelly & Donnelly-style uplift may be neither workable nor required. The judgment’s emphasis on avoiding double counting, while still ensuring hostility meaningfully aggravates sentence, is likely to influence how courts articulate reasons in hate-related offending prosecuted under non-hate-specific offences (such as robbery and conspiracy).

The case also demonstrates the limited practical reach of young adult maturity mitigation in the face of repeated, planned, and degrading violence: where the facts show a sophisticated, multi-victim campaign, appellate courts will generally uphold very substantial sentences even for offenders in their early twenties.