R v Adeeba Ashfaq & Anor

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Neutral Citation No. [2025] EWCA Crim 1294 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT READING (HER HONOUR JUDGE SARAH CAMPBELL) CASE NO: 202501344 A3 & 202501345 A3 Royal Courts of Justice Strand London WC2A 2LL Tuesday 17 June 2025 Before: LORD JUSTICE DINGEMANS MRS JUSTICE THORNTON HIS HONOUR JUDGE ST JOHN-STEVENS Reference by the Attorney-General under s.36 Criminal Justice Act 1988 REX v ADEEBA ASHFAQ LAIBA ASHFAQ __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ MR ALISTAIR RICHARDSON appeared on behalf of the Solicitor General MR DOMINIC WOOLARD appeared on behalf of the Offender Adeeba Ashfaq MR EDWARD McKIERNAN appeared on behalf of the Laiba Ashfaq _________ J U D G M E N T (Approved) LORD JUSTICE DINGEMANS: Introduction 1. This is the hearing of an application by His Majesty's Solicitor General for leave to refer sentences which the Solicitor General considers to be unduly lenient. 2. The respondents are Ms Adeeba Ashfaq, who was born in July 2007 and is now aged 17 years 11 months, and Ms Laiba Ashfaq, who was born in June 2006 and is 18, nearly 19 years old. The offences took place on 1 August 2024, when Adeeba Ashfaq was 17 years old and Laiba Ashfaq was 18 years and 1 month old. 3. It is submitted on behalf of the Solicitor General that there were three main errors in the sentencing: first of all, the appropriate guideline was the Robbery-dwelling guideline and not the Street Robbery guideline which was used in conjunction with the Robbery-dwelling guideline by the judge; secondly the judge failed to give a sufficient upward adjustment to reflect multiple features of higher culpability and features of serious harm; and thirdly the judge made too great a reduction for youth, in part because the judge had misunderstood or might have misunderstood the “Sentencing, children and young people” guideline. 4. It is submitted on behalf of Adeeba Ashfaq that because this was a confrontation, the judge was entitled, and right, to take into account both the Robbery-dwelling guideline and the Street Robbery-dwelling; secondly, the judge had taken into account all relevant factors; and thirdly, the judge had made an appropriate discount for the youth of Adeeba Ashfaq. 5. On behalf of Laiba Ashfaq, it is submitted that the Crown's theory of the case that Laiba Ashfaq was aware of Adeeba Ashfaq being armed at any stage before the knife was finally produced was wrong. The case that there was an intention to cause really serious bodily harm had not been accepted by the jury, and the judge was the trial judge, who knew what had occurred. 6. We are very grateful to Mr Richardson, Mr Woollard and Mr McKiernan for their helpful written and oral submissions. 7. We will grant leave for the Reference because we consider that the issues of the appropriate categorisation and whether the judge has made a misunderstanding of the relevant children and young people guideline are matters that should be reviewed. Pleas and convictions 8. So far as the trial was concerned, on the first day of the trial Adeeba Ashfaq entered a plea of guilty to: count 1, which was causing grievous bodily harm with intent; count 3A, a burglary, entering with intent to steal a mobile phone; and counts 6 and 7 involving criminal damage of doors and windows at the victim's home. Those were entered before the victim began to give evidence. 9. After trial, the jury convicted Adeeba Ashfaq of burglary in respect of count 2, count 3, which involved the stealing of handbags in the property; and count 4, burglary with intent to do unlawful damage, and most relevantly, the attempted robbery of the victim. Adeeba Ashfaq was not convicted of aggravated burglary, which was, the Crown had suggested, effected by the act of carrying a knife into the property. On 24 March 2025 the judge sentenced Adeeba Ashfaq to 4 years 6 months' imprisonment on count 5 for the attempted robbery, with no separate penalty for the other matters. 10. Laiba Ashfaq was convicted by the jury of: wounding in respect of count 1, section 20; burglary in respect of count 3; and on count 5, the attempted robbery; together with count 7 in respect of damage to the bedroom. Laiba Ashfaq was not convicted of entering the house armed with a weapon or as part of any plan to cause really serious bodily harm. On 24 March the judge sentenced Laiba Ashfaq to: 3 years’ detention for count 5 on the attempted robbery; 2 years' detention concurrent in relation to one of the other sentences, count 1; and 3 months concurrent for count 6 for the criminal damage. The factual circumstances 11. Adeeba Ashfaq had been in an intimate intermittent relationship with the victim's stepbrother. In June 2023 there was an occasion where she had gone to the victim's home address with three of her younger sisters and two other girls. There was shouting and swearing and kicking. The judge thought that might have been because the victim's stepbrother had ended the relationship. 12. On 31 July the victim had found Adeeba Ashfaq in bed with her stepbrother, and in the hours that followed Adeeba Ashfaq became concerned that nude photographs of her were circulating on social media and became convinced that the victim was the source of that. It is only fair to the victim to record that the police found no evidence of the victim's involvement in that, and as the judge noted, it could not possibly justify what then took place. The judge also recorded that Adeeba Ashfaq's reaction to this belief was in keeping with all that he had read about her character. That included character references, but importantly, reports from the Youth Offending Team (which we will come to) and a psychologist’s report. 13. On 1 August, Adeeba Ashfaq had made a telephone call to the police outside High Wycombe police station reporting the circulation of the images. We were told, and accept, that the police response was that nothing further could be done. 14. Adeeba Ashfaq and Laiba Ashfaq went to a shop, where the victim had worked and where it was thought she would be. Their behaviour was aggressive, and Adeeba Ashfaq was walking around trying to find her in the shop. 15. The victim went out later that evening. She was aged 17 at the material times. It is apparent that just after midnight Adeeba Ashfaq and another female (who was not identified) were outside the victim's house and used a brick to smash the windscreen of a car that was parked outside and then entered the property. It is apparent from the verdicts in respect of count 2 that the jury were sure that Adeeba Ashfaq entered the property with the intention of causing the victim grievous bodily harm with intent. That, Mr Richardson submits, is part of the reason why the Robbery-dwelling guidelines should have been used because the intention was to cause grievous bodily harm and to get the mobile phone back from inside the house. Once inside the house, Adeeba Ashfaq had picked up a knife which was later used once the victim had returned and run away. 16. At about 1.30 am the victim had returned home. She approached the door. She could see there was egg on the floor outside and glass in the door was smashed, and she realised that sitting in the kitchen was Adeeba and Laiba Ashfaq and two boys who had also entered. She left the house and ran away, and was chased. She ran towards Amersham Hill because she thought it was more likely that there would be cars passing. She stopped, with no idea that Adeeba Ashfaq had a knife, she thought at worst she would get a beating. Laiba Ashfaq joined in the assault. The victim described herself as being punched, her hair pulled, and when she went to the floor she was kicked, seeking to protect her head with her hands. Adeeba Ashfaq was the primary assailant. On the floor, the victim thought she had been punched in the stomach but in fact she had been stabbed and was stabbed three times. Even after she had been stabbed, Laiba Ashfaq was shouting and encouraging Adeeba Ashfaq to find the phone and her keys (which explains the conviction for attempted robbery). We note the point that was made by Mr McKiernan on behalf of Laiba Ashfaq to the effect that all she was trying to do was defuse the situation, but that submission is inconsistent with the conviction for the attempted robbery. The evidence also showed that Laiba Ashfaq had hit the victim as well, although there was no intention of causing her really serious harm because Laiba Ashfaq was only convicted of section 20 wounding. 17. They all ran away from the scene, and emergency services were called by the victim as she was running from the property. She was taken to hospital. She had a wound to the right side of her upper back and two additional wounds to her back. She had to be given blood clotting medication at the scene. Her right lung was punctured and collapsed. There was a collection of blood around the right lung in her chest and bleeding in the lung. She was given oxygen, and her wounds were packed with gauze and bandages. A chest drain was inserted, and she had an emergency operation to remove the blood clots from her lung and repair damage. She was admitted to hospital and was in hospital for ten days after the attack. 18. There was extensive damage at the house: £7,000 worth of damage, with eggs being thrown in the upstairs bedroom, make-up being put on the carpet, perfume bottles being smashed, and designer handbags were stolen which were valued at £2,500. Adeeba Ashfaq's fingerprints were found on a letter upstairs, and Laiba Ashfaq's DNA was found on a sanitary pad which had been stuck to the wall. The sentencing 19. The victim's Victim Personal Statement showed that, six months later, she still had pain in her right side. She had permanent scars on her back. The emergency surgery to repair the punctured lung had exacerbated her asthma, and she suffered from depressive and suicidal thoughts, and felt traumatised. She hardly left the house and was concerned when she went into High Wycombe about reprisals from the Ashfaq family. 20. So far as Adeeba Ashfaq was concerned, she had just turned 17 years old when the offence took place. The judge referred to the Sentencing Young People's guidelines and said she would be applying a 50 % discount. The judge also took into account what the Youth Offending Team had written. The judge said that part of the tragedy of the case, in addition to the terrible injuries caused, was that with the structured intervention, the Youth Offending Team were positive about how Adeeba Ashfaq had engaged positively in all aspects of her remand to the local authority. She had undertaken beauty courses she had engaged well with her mentor, she was remorseful and recognised that her behaviour was disproportionate. Her risk of reoffending had been assessed as being low and she was assessed as being at medium risk of causing serious harm. She was not regarded as dangerous. 21. The judge also had available to her a psychologist's report, which showed that Adeeba Ashfaq had poor emotional regulation and was prone to emotional outbursts following a build-up of emotions. There had been suspicions about ADHD in the past, but due to poor engagement, that had never been formally assessed. Adeeba Ashfaq had been described as spontaneous, melodramatic and using emotions to generate reactions from others, and her parents had struggled throughout her youth and tried to seek professional help. Adeeba Ashfaq also had trauma due to two life events which it is not necessary to report, which occurred when she was 14. The author came to the following diagnosis (which, as Mr Richardson had pointed out, was made more difficult by the fact that Adeeba Ashfaq had not answered accurately questions that were put to her and had attempted to overscore on some aspects) that Adeeba Ashfaq had a borderline tendency personality type, with discontented and dramatizing traits and compulsive features, disruptive mood, dysregulation disorder, and had ADHD. She was said to perceive the world through a lens of negativity which led to a vicious cycle. The judge found that that had been borne out in relation to the case, and of course the judge had been the trial judge. 22. As far as Laiba Ashfaq was concerned, she had turned 18 years old, and the judge reminded herself that 18 was not a cliff edge and proposed a third discount for youth in that case. She had no previous convictions or cautions, and prior to remand in custody she was working hard. She was, the judge accepted, family orientated, bearing a great deal of responsibility for the care of a younger brother, but the judge did not accept that her only motivation was to keep her sister out of trouble because that was inconsistent with the jury's verdict. 23. The judge referred to the relevant guidelines. These included Sentencing children and young persons, which reminded the judge that the focus of sentencing should be on the welfare of the defendant and to prevent reoffending, and that a custodial sentence should be a last resort, and the sentencing guidelines for those with a mental disorder or developmental disorder, or a neurological disorder, which were relevant to Adeeba Ashfaq. 24. The judge referred to the offence specific guidelines. As far as “causing grievous bodily harm with intent to do grievous bodily harm”, the judge found this was high culpability because: it was a revenge attack; Adeeba Ashfaq had a leading role in a group activity; this was a persistent assault with a highly dangerous weapon, being a knife; and there was planning and premeditation. It was harm Category 2 because there was a punctured lung and emergency cardiothoracic surgery, but there had been a relatively good recovery. The judge noted an A2 offence had a starting point of 7 years with a range of 6 to 10 years, and Adeeba Ashfaq had a single youth caution for battery when aged 15. 25. As far as the various guidelines for robbery were concerned, the judge said that it did not really fall into either “a street and less sophisticated commercial robbery”, as envisaged by the guidelines, nor a “dwelling” robbery. The judge found that the robbery was no doubt planned to take place inside the house, but the street and dwelling robbery guidelines had very different starting points. The robbery for street and less sophisticated robbery guidelines would indicate high culpability, with the use of a weapon and the production of a bladed article. It was plainly harm Category 1 with the serious physical harm being caused. That would have given a starting point of 8 years and a range of 7 to 12 years. The judge noted that an aggravating factor would have been the leading role for Adeeba Ashfaq and the element of planning. If it was a robbery on a dwelling, it would have been again category harm 1 with culpability A, which would have given a starting point of 13 years and a range of 10 to 16 years. The judge was invited by the Crown to consider a starting point between the two. There were other submissions that were made, but that was the approach the judge took. Mr Richardson, as indicated in his submissions, said the judge was wrong to take that as a starting point. 26. As far as the judge was concerned in relation to the wounding from Laiba Ashfaq, the judge found that she had played a lesser role, with medium culpability, but the harm was Category 1, which would have given a starting point of 5 years with a range of 4 to 8 years in relation to the matters that the judge had found under the robbery; and the section 20 was high culpability because it was a persistent attack and harm category 2, but again towards the top end, which would have given a starting point of 3 years with a range of 2 to 4 years. 27. The judge noted that so far as the remaining burglary counts were concerned, under the “Domestic burglary” guidelines they would be medium culpability with elements of high culpability: targeting a vulnerable victim because her parents were away; there was harm Category 1, in the sense that the householder returned; and there was extensive soiling and damage to the property. The judge noted that would have given a starting point of 2 years, with a range of 1 to 4 years. The criminal damage was an A1 offence, with a starting point of a high-level community order to 3 months' custody, and the judge said that she had borne in mind the principles of totality. This Reference 28. So far, as is apparent, this was a difficult sentencing exercise. It was complicated by the fact that the Crown's case at its highest, had been rejected by the jury - the aggravated burglary count was not found to be proved, and other counts were not successful. Further there were young persons who were involved, who had developmental disorders which had been diagnosed by a psychologist. There was an offence specific guideline for a robbery in a dwelling and there was a guideline for robbery in the street, and as was pointed out, the robbery had started in the dwelling but had finished in the street. So we turn then, noting those aspects, to the submissions made on behalf of the Solicitor General and the first point, which was that the appropriate guideline was the Robbery-dwelling guideline and not the street and less sophisticated commercial robbery guideline. We agree with the judge that this was a robbery which did not readily fall into either a street or less sophisticated commercial robbery nor a dwelling robbery. This is because, although the attempted robbery did start in the house, the actual robbery and the use of the knife which had been picked up in the house took place in the street. It would over-sentence to consider this only to be a dwelling robbery as if the final, and nearly fatal, attack on the victim took place in the house, but it would under-sentence if only the street robbery had been taken into account. In our judgment the judge was, at the very least, permitted to take the approach that she did to both guidelines, and indeed in our judgment was right to do so. There were very important aggravating features which had to be reflected by using the starting point of the dwelling-house guideline, namely waiting in the house, having soiled and broken entry to gain entry to the house and ransacked aspects of the house, but it would be wrong to ignore the fact that the victim had run away and was attacked on the road away from the house in an attempt to get the mobile phone. It is true, as Mr Richardson says, that different circumstances might lead to different sentences, but that is a statement of the obvious. 29. So far as the second point is concerned in relation to a sufficient upward adjustment to reflect multiple features of higher culpability and two features of category 1 harm, in our judgment, although the judge did not specifically identify what figures she had ended up with before discounting for mitigation and youth, the judge plainly had referred to all the relevant aggravating features and had had them well in mind. That included the two aspects of harm relevant under the Robbery-dwelling guideline, which were physical harm and ransacking of property. 30. That brings us then to the third main point, which was the judge made too great a reduction for youth because she had or may have misunderstood the guidelines. So far as is relevant, this turns on two passages of the transcript. The judge, when turning to mitigation, said in relation to Adeeba Ashfaq: “The sentencing young people guidelines recommends that the court may wish to discount the sentence by a half to two-thirds depending on the age of the offender. In this case I would be applying a 50 per cent discount. I also bear in mind as I’ve said that the principle focus in sentencing someone of your age is that of rehabilitation.” 31. What Mr Richardson emphasised is that might be read as meaning a discount of two-thirds, or as I had read it (or perhaps even misread it) a discount to two-thirds of the original sentence, which would be the appropriate approach. In any event, it is perfectly apparent that the judge understood correctly what the appropriate discount was, because the judge, when dealing with Laiba Ashfaq, did say 'a third' discount. Mr Richardson pointed out that was generous because she was 18 years 0 months at the time, but in our judgment it was the judge's reflection of the fact that 18 was not a cliff edge and showed regard to all that she had been told in relation to Laiba Ashfaq. 32. The final point in relation to that issue is that in any event the judge applied a 50 % discount, and so for Adeeba Ashfaq any mistake which was made, and for the reasons given we do not accept one was made, it was immaterial to the sentencing. 33. That then brings us to the last point which was made on behalf of the Solicitor General, which was when you step back and look at this, this was really too great a reduction that had been made. A 50% discount, or the third discount for Laiba Ashfaq, was all that should have been given and the sentence was still unduly lenient. 34. The judge did not, and there is no legal requirement for the judge to share exactly the workings that she had gone through to get to the sentences, but it is apparent that if a starting point splitting the difference of the starting point in the Street Robbery and the Robbery-dwelling guidelines is taken, you would start with a sentence of 10 years 6 months or a starting point somewhere in that region. There must have been a reduction to 9 years before the discount for youth. It is submitted that was too great a reduction, given the circumstances. It is submitted on behalf of Adeeba Ashfaq that was a perfectly permissible discount when regard is had to the purposes of sentencing youths, which is not just a mathematical discount but takes account of the following matters: first of all, her engagement with the Youth Offending Team; the positive steps that she had taken; the problems that had occurred in the past; and in fact that a lot of the offending was because of her wrong reaction to the distribution of photographs of herself; together with the fact that she had been in local authority accommodation for some 7-and-a-half months, which merited no automatic discount but which the judge had taken into account. Those points are repeated so far as Laiba Ashfaq is concerned. 35. Stepping back from the whole matter, one can see that many judges might have gone up a little bit from the final sentence that this judge arrived at, and we do consider that the sentence can be fairly described as lenient. We are, however, wholly unable to say that it was unduly lenient. For all those reasons and notwithstanding all the matters that have been properly argued on behalf of the Solicitor General, we refuse the Reference. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk