Khan, R v

Factual and Procedural Background

On 10 July 2019, at the Crown Court at Leeds, the Appellant, aged 21, was sentenced by Judge Rose to three years and nine months' detention in a Young Offender Institution for a serious domestic burglary committed in August 2018 (referred to as the first indictment). On 27 November 2019, at the same court, the Appellant was sentenced by Judge Stubbs QC to four years' custody for conspiracy to burgle dwellings committed in 2016 (referred to as the second indictment). This sentence was ordered to run consecutively to the first, resulting in a total sentence of seven years and nine months' detention.

The Appellant appealed against the four-year sentence on the second indictment and also lodged an out-of-time appeal against the first indictment's sentence. A single judge refused leave and refused to extend time for the first indictment appeal but granted leave to appeal the second indictment sentence on the basis that the total sentence might be manifestly excessive given the Appellant's youth and the principle of totality.

The core issue is whether the aggregate sentence of seven years and nine months was manifestly excessive and whether the four-year sentence should have been shorter, considering totality. A separate ground concerns whether the Appellant should have received greater credit for a late guilty plea on the second indictment.

The burglary conspiracy on the second indictment dated back to 2016 when the Appellant was 17. He was only charged in May 2019 due to investigative complexities. The first indictment burglary was sentenced before the second indictment plea and trial preparation hearing. The Appellant initially pleaded not guilty to the conspiracy, leading to separate sentencing. The Appellant’s own conduct in pleading late contributed to the procedural sequence.

The first indictment burglary occurred on 1 August 2018 at a residence in East Ardsley, Wakefield. The Appellant, then 19, drove a vehicle carrying a team of burglars who forcibly entered the home, demanding car keys and causing significant damage. The Appellant pleaded guilty to aggravated vehicle taking related to this incident. The offence caused considerable distress and fear to the victims.

The Appellant had a previous relevant conviction for domestic burglary in March 2017 involving a gang and threatening behaviour.

On sentencing the first indictment, the judge found the burglary planned, with the Appellant playing a leading role, aware of the occupants and children present. The offence was classified as Category 1 under sentencing guidelines. Despite a guilty plea credit, the Appellant showed no remorse. The judge imposed a five-year starting point reduced by 25% for plea, plus concurrent sentences for related offences, and a driving disqualification period totaling 41 months.

The Appellant did not initially appeal the first indictment sentence and acknowledged it was not manifestly excessive. The renewed application for extension of time and leave to appeal the first indictment sentence was refused.

Regarding the second indictment, the conspiracy involved multiple burglaries and attempted burglaries between October and November 2016, committed by the Appellant and others. The offences involved theft of high-value goods and vehicles, use of disguises, weapons, and threats or actual violence. The Appellant was 17 and a half at the time.

The trial for the second indictment began in November 2019. Pleas were entered on the second day of trial, leading to a four-year consecutive sentence. The judge allowed only a 5% credit for the late guilty plea, noting the trial preparation and the impact on court resources. The sentence for an adult would have been eight years, reduced by one-third for youth and further reduced for totality to four years.

The Appellant appealed the second indictment sentence on grounds including the starting point, insufficient regard to youth and mitigation, inadequate credit for plea, and failure to properly apply the principle of totality.

Legal Issues Presented

1. Whether the aggregate sentence of seven years and nine months was manifestly excessive, particularly in light of the Appellant's youth and the principle of totality.
2. Whether the four-year sentence on the second indictment should have been shorter to reflect totality.
3. Whether the Appellant should have received greater credit than five percent for a late guilty plea on the second indictment.

Arguments of the Parties

Appellant's Arguments

• The judge took too high a starting point of eight years for the adult sentence on the conspiracy.
• The judge failed to sufficiently consider the Appellant's age, personal mitigation, and that some delay was not the Appellant's fault.
• The judge gave insufficient credit for the late guilty plea, limiting it to five percent.
• The judge failed to properly apply the principle of totality when considering the aggregate sentence.

Court's Response to Arguments

• The judge's starting point was justified given the serious, planned, and commercial nature of the conspiracy involving multiple burglaries.
• The judge correctly applied sentencing guidelines for children and young people, reducing the adult sentence by one-third, reflecting the Appellant's maturity and active role.
• The five percent credit for the late plea was appropriate given the timing of the plea and the court resources expended.
• The judge had the principle of totality firmly in mind and allowed a further reduction accordingly; the total sentence was proportionate.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court systematically evaluated the aggregate sentence by applying established sentencing principles, particularly the principle of totality and youth mitigation. It acknowledged the seriousness and planning involved in both the first and second indictments, noting the Appellant’s active and leading roles despite his youth. The court accepted the judge’s starting points for sentences were justified by the offences' gravity and complexity.

The court emphasized the importance of timing regarding guilty pleas in credit awards, finding the five percent credit for the late plea consistent with Sentencing Council Guidelines given the plea was entered on the second day of trial after substantial court time was set aside.

The court also considered procedural fairness and the Appellant’s own role in the timing of pleas and sentencing, concluding that any prejudice from separate sentencing arose from the Appellant’s conduct.

Regarding totality, the court noted that the judge appropriately adjusted the sentence to avoid an excessive aggregate term, applying a further reduction to reflect the combined sentences. The court found the total sentence of seven years and nine months neither manifestly excessive nor wrong in principle.

The court also addressed a technical correction concerning the driving disqualification period, directing amendment of the record to accurately reflect statutory provisions.

Holding and Implications

The appeal is DISMISSED.

The court upheld the aggregate sentence of seven years and nine months as just and proportionate, finding no manifest excess or error in principle. The decision confirms the application of sentencing principles relating to youth mitigation, credit for guilty pleas, and the principle of totality in cases involving multiple indictments and serious offences. No new precedent was set. The direct effect is that the Appellant’s sentences stand as imposed.