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A mitigation too far?

Sentencing expert Tony Edwards unpicks the widely reported case of cricketer Mustafa Bashir, whose suspended sentence for attacking his wife was overturned after he mislead the court about his sporting career prospects

The case of Mustafa Bashir who, according to newspaper reports (which are the only source of information), caused his wife to drink bleach, sought to throttle her, and hit her with a cricket bat, has caused understandable concern. There was considerable press interest and adverse comment when he initially received a suspended prison sentence for an offence which the Attorney General cannot refer to the Court of Appeal as an unduly lenient. The judge did also make a restraining order to prevent further contact with his wife and imposed a requirement to attend an appropriate programme on building better relationships.

Judges must know their sentencing law, but the case emphasises the care required in choosing the words which give the reasons for the sentence imposed. Commentators were critical of the judge’s reported remarks that Bashir’s wife was not vulnerable because she was a graduate with a network of friends. The case also raises serious issues about the extent to which a judge should rely on an advocate for accurate information about their client. Suggestions that Mustafa Bashir would become a professional cricketer seem were later shown to be untrue, leading to his being resentenced.

Mitigating for Bashir, his lawyer had reportedly told the court:

‘He has continued to play professionally in a local cricket league but … if he is allowed to keep his liberty he will be employed by Leicestershire as a professional. He was about to sign the contract when he was arrested.’

Unhelpfully for Bashir, Leicestershire Country Cricket Club subsequently contacted his legal team, the police and the CPS to insist the claim that it had offered him a contract was ‘wholly false’. He has now been sentenced to 18 months imprisonment.

This case highlights how terminology understood and used by lawyers and judges can take on a wholly different construction elsewhere.

For most offences, the sentencing exercise is carried out in a seven-part process, dependent on guidelines issued by the Sentencing Council, to which the court shall have regard. In this case, the offence was an assault occasioning actual bodily harm.

Step one is to determine the ‘offence category’, by identifying the relevant levels of culpability and harm – the key statutory elements for sentencing.

Category 1 covers cases with greater harm and higher culpability. For there to be greater harm, there must normally be serious injury. Category 2 applies where there is either greater harm and lower culpability, or lesser harm and higher culpability. Category 3, is for when there is lesser harm and lower culpability.

The guideline sets out an exhaustive list of factors which go to the levels of harm and culpability. These include:

Factors indicating greater harm:

  • Injury (which includes…psychological harm), which is serious in the context of the offence (must normally be present);
  • Victim is particularly vulnerable because of personal circumstance;
  • Sustained or repeated assault on the same victim.

Factors indicating higher culpability include:

  • A significant degree of premeditation;
  • Use of weapon or weapon equivalent;
  • Intention to commit more serious harm than actually resulted from the offence;
  • Deliberate targeting of vulnerable victim;
  • Offence motivated by…hostility based on the victim’s age, sex, gender identity;
  • Although the issue of vulnerability applies in both parts of the test, this case would likely have been in Category 1 without any reference to that element.

As the judge imposed a sentence of 18 months, that appears to be where the judge placed the case.

This conclusion can be reached because step two identifies the category range.

In Category 1 the starting point (applicable to all offenders) is one year, six months’ custody; and the category range (applicable to all offenders) is one to three years’ custody.

In deciding where in the range a case falls, the judge can look at any aggravating or mitigating circumstances. The judge is reported as finding that remorse, a mitigating factor, was not present. In domestic violence cases forcing a victim to leave their home is an aggravating factor. Reference at this point must also be made to the separate Guideline on Overarching Principles on domestic violence. While the Court of Appeal has said that vulnerability cannot be assumed merely from the existence of a relationship, vulnerability is again an issue in this guideline:

ii) Victim is particularly vulnerable:

3.7 For cultural, religious, language, financial or any other reasons, some victims of domestic violence may be more vulnerable than others, not least because these issues may make it almost impossible for the victim to leave a violent relationship.

3.8 Where a perpetrator has exploited a victim’s vulnerability (for instance, when the circumstances have been used by the perpetrator to prevent the victim from seeking and obtaining help), an offence will warrant a higher penalty.

3.9 Age, disability or the fact that the victim was pregnant or had recently given birth at the time of the offence may make a victim particularly vulnerable.

In other respects, this guideline has an outdated feel, suggesting that violence in a domestic relationship is less serious than other similar acts. Interestingly, in the last week, the Sentencing Council has begun a consultation on a new guideline which would make clear that in those circumstances, violence (irrespective of vulnerability) is actually more serious. Once in force, that would remove many of the problems of the current case.

Steps three five and six are not relevant to this matter but step four requires that some discount be given for a guilty plea. A new guideline on that issue will come in to force on 1 June 2017. The discount depends on the stage of the proceedings at which the guilty plea is indicated- an unknown factor in the newspaper reports – but it could well result in a reduction of 25%, so that the judge might initially have intended a two-year sentence.

Step seven deals with compensation and ancillary orders, such as the restraining order that appears to have been made.

As long as the sentence is two years or below, the judge must then consider whether the sentence should be suspended – if necessary, with the sort of requirement that was imposed in this case, a ‘programme requirement’. This, too, has been the subject of a new guideline which came in to force on 1 February 2017:

The following factors should be weighed in considering whether it is possible to suspend the sentence:

Factors indicating that it would not be appropriate to suspend a custodial sentence:

– Offender presents a risk/danger to the public;

– Appropriate punishment can only be delivered by immediate custody;

– History of poor compliance with court orders.

Factors indicating that it may be appropriate to suspend a custodial sentence:

  • Realistic prospect of rehabilitation;
  • Strong personal mitigation;
  • Immediate custody will result in significant harmful impact upon others.

Cases such as this call for a difficult judgment in which facts not published may have played a significant part.

This inevitably leads to the issue of Mustafa’s Bashir’s cricketing career.

It has never been satisfactory for an advocate to use coded words to indicate to a judge that the lawyer putting forward an argument believes there is reason to doubt it.

Words such as ‘I am instructed that’ should be no part of a speech in mitigation. The advocate must put forward their client’s case. However, they must also be prepared for an intervention from the court testing the facts presented, and clients must be warned of that reality. If a proposal for compensation is advanced (often as part of an attempt to avoid immediate custody), the Court of Appeal requires there to be supporting material available.

Thus a wise lawyer will seek confirmation of what they are to submit. As the lawyer in this case discovered, there are strong practical reasons for doing so. Under s155 Powers of Criminal Courts (Sentencing) Act 2000 a crown court can, for 56 days, reopen any order it has made and reconsider its sentence – either to decrease or, in this instance, to increase that sentence.

In other cases, this has been done when defendants leaving court are publicly rather too frank about their true views of their crime or the judge, undermining their lawyer’s claims of remorse.

In an earlier case which also attracted wide media interest in 2016, a convicted drug dealer who mocked the judge in lurid terms on Facebook after she gave him a suspended sentence was ordered back to court for resentencing (here).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Tony Edwards

About Tony Edwards

Tony is a solicitor and the former senior partner at TV Edwards

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