Ivana Hussain & Another [2019] EWCA Crim 1542

R v Ivana Hussain & Another [2019] EWCA Crim 1542 concerned appeals against custodial sentences imposed for conspiracy to steal where the Court of Appeal held that immediate detention had been manifestly excessive in both cases and substituted suspended sentences.

On 5 March 2019 at Harrow Crown Court, Ms Hussain (aged 21) and Ms O’Leary (aged 20) pleaded guilty to conspiracy to steal contrary to section 1(1) of the Criminal Law Act 1977. On 5 July 2019 the judge sentenced Ms Hussain to 12 months’ imprisonment and Ms O’Leary to 12 months’ detention in a young offender institution. Their co-accused, Mr O’Connor (aged 34), pleaded guilty to robbery and was sentenced to 3 years 9 months’ imprisonment, a sentence he did not challenge.

The appellants had planned and executed a staged robbery at the Perivale branch of Ladbrokes on 27 May 2018. Ms O’Leary worked at the branch. On 26 and 27 May she had extensive telephone contact with Ms Hussain, who was Mr O’Connor’s partner. At 8.15 pm on 27 May, Ms Hussain and Mr O’Connor, accompanied by Ms Hussain’s young child in a pushchair, waited near the premises. At 8.30 pm, after a significant quantity of cash had been removed from the gaming machines, Ms O’Leary sent a text message to Ms Hussain. Ms Hussain and Mr O’Connor then separated. Mr O’Connor, wearing a skull mask and brandishing an extendable baton, entered the shop and demanded money. Ms O’Leary filled a bag with approximately £6,600 from the safe. During the robbery Mr O’Connor snatched a customer’s mobile telephone and smashed it, and shouted at another customer to stay out. Ms O’Leary’s colleague, Ms Fiona Pereria, was behind the counter and very shaken by the incident. After the robbery Mr O’Connor rejoined Ms Hussain nearby; she and the child had provided cover for his escape. There were further calls between the women in the hours and days following the offence.

Police analysed call records and CCTV footage which showed Ms Hussain and Mr O’Connor together near the shop. Both women were arrested in February 2019 and answered no comment in interview. Both were of previous good character. Ms Hussain pleaded guilty on a basis of plea in which she stated that Ms O’Leary had initiated the plan and that she did not know or suspect Mr O’Connor would carry a weapon. She believed £4,200 had been stolen (although the true figure was £6,600) and that Ms O’Leary received £2,000. Ms O’Leary pleaded guilty but not on any specific basis.

At sentence the judge referred to the Sentencing Council Guidelines for Theft and for Theft from a Shop but noted that the offending did not fall easily within either. He assessed the offence as falling within category 1 under the Theft from a Shop guideline and category 3 under the general Theft guideline. He identified high culpability on the part of Ms O’Leary because of the breach of trust, her knowledge of security measures, the clear planning and the fact that she and Mr O’Connor must have been aware of at least a risk that force would be used. He noted that Ms Hussain had provided cover for Mr O’Connor. The judge acknowledged the appellants’ youth, previous good character, Ms O’Leary’s emerging personality disorder and Ms Hussain’s responsibility for a young child, and gave full credit for guilty pleas. He stated that he had considered the Sentencing Council Guidelines on Sentencing Young People and on Community Sentences but concluded that the offending was so serious that only immediate custody could be justified, albeit with a significantly reduced starting point. He fixed the starting point at 18 months for both appellants before applying one third credit to reach 12 months.

On behalf of Ms O’Leary, Ms Mawer advanced two principal grounds. First, she submitted that the judge was wrong to place the offending within culpability category A or, alternatively, that the quantum was too high. The case involved neither a breach of trust of a high degree, sophisticated offending nor significant planning, and Ms O’Leary had not played a leading role given that Mr O’Connor had been the instigator and sole source of violence. Secondly, she submitted that the judge erred in failing to suspend the sentence. Insufficient regard had been given to Ms O’Leary’s youth (she was 19 at the time of the offence), immaturity, mental health problems and level of culpability, together with the impact of detention on her and the fact that she was midway through the first year of a university degree. Ms Mawer relied on authorities including R v Balogan [2018] EWCA Crim 2933, R v Shuttleworth [2019] EWCA Crim 33 and R v Newsome [2019] EWCA Crim 921 for the propositions that immaturity may engage the principles of youth sentencing even for adults, that cumulative mitigation may tip the balance in favour of suspension and that serious medical conditions may justify mercy. She also submitted (without success) that R v Shuttleworth created a presumption in favour of suspension where prescribed criteria were met, and referred the court to international instruments such as the Bangkok Rules. A psychological report from Dr Bowers described Ms O’Leary as a complex and very troubled woman who had experienced long-term sexual abuse, suffered from anxiety, depression and an emerging emotionally unstable personality disorder, had made two serious suicide attempts and whose poor mental health had made her vulnerable to exploitation and highly suggestible. Her mental condition was linked to her offending and immaturity.

On behalf of Ms Hussain, Mr Butler submitted that the sentence was manifestly excessive. He contended that the offending fell within category 3B (or even 3C), as there was only limited planning, Ms Hussain had a limited function under Mr O’Connor’s direction and she had been involved through coercion or exploitation given that Mr O’Connor was 14 years her senior with a history of offending. He also submitted that insufficient credit had been given for Ms Hussain’s personal mitigation, including her youth, good character, remorse, the fact that she was the sole carer of a 3-year-old son, a history of domestic abuse, her depression and the fact she would lose her local authority accommodation if imprisoned. He also raised parity with Ms O’Leary, who he said had played a more leading role and acted in breach of trust.

The Court of Appeal, giving judgment through Mrs Justice Carr, set out the applicable principles. Where offending is linked to immaturity the principles of youth sentencing remain relevant. A serious medical condition may enable a court to impose a lesser sentence as an act of mercy. The fact that a defendant has dependent children is a relevant factor and Article 8 rights are engaged, requiring the court to ask whether the sentence is a proportionate way of balancing effects on the defendant and child with the legitimate aims of sentencing as identified in R v Petherick [2012] EWCA Crim 214. When considering suspension a balancing exercise is required, and even if immediate custody is necessary for punishment a judge retains discretion to suspend if sufficient factors point that way, as explained in R v Tharmaratnam [2017] EWCA Crim 887. This court will only interfere if the decision is plainly wrong in principle or manifestly excessive. The court rejected the submission that R v Shuttleworth created a presumption in favour of suspension.

In relation to Ms O’Leary, the court held that the judge was entitled to place her offending in category 3A (starting point one year, range 26 weeks to two years). There had been a serious breach of trust: she knew the security measures, was in charge of timing, shared details of when money was banked and failed to press panic alarms. She was involved in significant planning, was at the heart of the exercise and must have known of at least a risk of force being used. This was serious offending. However, given her mitigation (good character, youth, immaturity and mental health) and the absence of aggravating factors, the judge erred in selecting 18 months before credit. An appropriate term was nine months, falling to six months after full credit for guilty plea.

The court then considered whether that sentence should have been suspended by reference to the relevant guideline. Whilst appropriate punishment might only be achieved by immediate detention, there was a realistic prospect of rehabilitation and very strong personal mitigation. Ms O’Leary’s chances of recovery were far higher in the community than in custody, she was receiving no mental health treatment in detention, she was assessed as low risk of reoffending and detention would compromise her degree course and prospects. Even by reference to a 12-month term the judge could not have given adequate consideration to Ms O’Leary’s youth, immaturity, mental health and personal circumstances. The refusal to suspend resulted in a manifestly excessive sentence. The appeal was allowed. The sentence of 12 months’ detention was quashed and replaced with six months’ detention suspended for 12 months. Given that Ms O’Leary had spent just over a month in detention, no conditions were imposed.

In relation to Ms Hussain, the court accepted that her offending fell within category 3B (starting point high level community order, range low level community order to 36 weeks). It did not fall within category 3C. There had been planning in which Ms Hussain was repeatedly involved and her role was not insignificant, providing a decoy with her child. She too must have known of at least a risk of force being used, not least given Mr O’Connor’s record of violent offending. The starting point of 18 months was manifestly excessive. Taking account of her personal mitigation, an appropriate term was 12 weeks, falling to eight weeks after credit.

The court then considered suspension. It was difficult to say that appropriate punishment could only be achieved by immediate custody. All three factors pointing towards suspension were present and powerfully so: realistic prospect of rehabilitation, strong personal mitigation and the fact that immediate custody would have significant harmful impact on her three-year-old child of whom she was the sole carer. The judge had given inadequate consideration to this important factor in line with R v Petherick. Imprisonment amounted to a disproportionate interference with the Article 8 rights of both child and mother. As in R v Shuttleworth, this was a paradigm example where the custodial sentence should have been suspended. The failure to do so resulted in a manifestly excessive sentence. The appeal was allowed. The sentence of 12 months’ imprisonment was quashed and replaced with eight weeks’ imprisonment suspended for 12 months. Given that Ms Hussain had spent just over a month in custody, no conditions were imposed. The parity complaint accordingly fell away.

In short, both appellants succeeded: their immediate custodial sentences were quashed and replaced with suspended sentences reflecting lower categorisation, properly calibrated starting points and the compelling personal mitigation that made suspension appropriate in each case.

Petherick [2012] EWCA Crim 2214, [2013] 1 WLR 1102
Hall [2013] EWCA Crim 82, [2013] 2 Cr App R (S) 68
Tharmaratnam [2017] 2 Cr.App.R.(S.) 318(36), C.A. ([2017] EWCA Crim. 887
Balogun [2018] EWCA Crim 2933
Wallace [2019] EWCA Crim 33
Chantel Newsome [2019] EWCA Crim 921

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