R v Mohammed Akhtar Hussain & Anor

These are both appeals against sentence, leave having been granted by the single judge. We shall refer to the first appellant Mohammed Akhtar Hussain as "Hussain" and the second appellant Muhithur Rahman as "Rahman". No disrespect is intended on the court's part by the use of their surnames alone and this is done in this judgment on their appeal purely for convenience.

On 8 July 2024 in the Crown Court at Snaresbrook, Hussain pleaded guilty to two counts on a three count indictment. The counts to which he pleaded guilty were conspiracy to rob, contrary to section 1(1) of the Criminal Law Act 1977 , and possession of a controlled drug of class A, contrary to section 5(2) of the Misuse of Drugs Act 1971 .

A few days later, that delay being caused by reason of administrative reasons not within his control, Rahman also pleaded guilty to conspiracy to rob. In November 2024 during a trial on the other count, namely conspiracy to possess an imitation firearm at the time of committing a schedule 1 offence, no evidence was offered against him and not guilty verdicts entered on that count. But at the same time Rahman pleaded guilty to an offence of possession of an imitation firearm at the time of committing a schedule 1 offence, which was added to the indictment for the purpose of him pleading guilty. It was therefore effectively a new and lesser count.

On 23 May 2025 before His Honour Judge Cohen each of them were sentenced. Hussain was sentenced to eight years three months' imprisonment on the count of conspiracy to rob, with no separate penalty on the possession of class A drugs. Rahman was sentenced to 10 years nine months for conspiracy to rob and five years for count 3, which was the possession of the imitation firearm, that sentence to be concurrent. Therefore his overall sentence of imprisonment was 10 years nine months.

There was a slip when Rahman was sentenced when the judge told him that he was being sentenced for possession of an imitation firearm at the time of committing a schedule 1 offence but referred to it as count 2. In reality count 2 was the offence of conspiracy to possess an imitation firearm, in respect of which, as we have explained, no evidence had been offered against him. The reference to count 2 rather than count 3 as the offence for which he was sentenced was a slip of the tongue on his part. Nothing turns on this because he was plainly sentenced for possession and not conspiracy to possess the imitation firearm and this is made clear in the sentencing remarks. We make it clear in this judgment purely for completeness.

The facts of the offending are as follows. Hussain was an employee of the East Ham branch of Lidl. The store would close at about 11.00 pm, after which time the security guard would leave. Electronic barriers which enabled entry to the store were then partially locked and a key pad was required in order to go through the electronic doors. There were shutters outside the store but these would only be brought down halfway in order to allow staff access into and out of the store.

Hussain and Rahman conspired to rob Lidl. Their plan to do this was to rob the store at the time that a quantity of cash was being counted up in the late evening after the store had closed or at about the time the store was closing and at a time that the cash was being counted, having been taken during the day during the commercial operation of the store.

On the evening of Tuesday 19 March 2024, Rahman was driven to the store by Nazrul Islam who parked his vehicle in an adjacent street. Mr Islam was acquitted of the charges that he faced and it is not necessary to refer to him again, save in one particular respect.

Rahman is shown on a locker camera exiting the vehicle wearing a rucksack. At about 11.20 pm he put on a hi-visibility tabard which had been provided to him by Hussain. About a minute or two later Hussain helped him gain entry to the store. Rahman followed Hussain through the electronic barrier and Hussain used a PIN number to open a controlled door, enabling Rahman to head towards the store's office. Hussain then walked back to the main part of the store.

Rahman went to the relevant office where the key was in the outside of the door. He entered the office. He threatened the employee counting the cash, who was called Mr Haque, with an imitation firearm, pointing it at him and threatening to kill him. He bound his legs and wrists with cable ties that he had brought with him for that purpose. The employee was extremely frightened and begged him not to kill him. Rahman took what was called the "float money" which is money from the tills which is contained in black cassettes and also emptied the contents of the safe which was open at that point into his rucksack. The total cash taken was just slightly more than £8,500.

He left the office. As he was leaving he was spotted by staff and chased, this included being chased by Hussain who joined in the chase in an attempt, it appears, to pretend to disguise his involvement in the conspiracy.

After a police investigation, which took some time, the two appellants were arrested in June 2024. The investigation involved a large amount of cell site evidence and investigation showing where different phones had been in different times over a period leading up to the event.

The effect of the robbery upon Mr Haque was profound. He suffered health issues including high blood pressure. He was also suspended from his employment due to what were entirely unfounded suspicions by Lidl that he may have been involved, as the offending seemed to be something of what is called “an inside job”. Indeed, it was offending planned and facilitated by an insider, but that person was not Mr Haque. He required medication for his anxiety and during the period of suspension he was not permitted to work at all, which meant he could not earn overtime which impacted his income and therefore the income of his family. He has also explained that the fact that he eventually realised he was robbed in this way by a colleague has made things much worse for him.

Both Hussain and Rahman have lengthy and varied previous convictions. We will not read them all out this morning in this judgment but Hussain has 17 convictions for 44 offences including assorted offences against property, some of obtaining property by deception and using false instruments, public disorder offences and drug offences. These convictions run to 11 pages on the PNC printout. Rahman's convictions run to 17 pages and he has 15 convictions for 31 offences, which are also of a wide variety. They include dealing drugs, but also directly relevant to this offending he has five previous convictions for firearm offences. He was also on bail for other offences at the time of committing these offences.

Rahman submitted a basis of plea in which he said he was carrying a cosh but this would have the appearance of a firearm. He denied being what he called the mastermind and said he was doing the robbery under pressure from Hussain and to pay off both drug debts and his student loan. He also said he was depressed and this contributed to his decision to become involved. That basis was not accepted by the prosecution and although at one point a Newton hearing was going to be held on that specific issue, the judge decided no Newton hearing was necessary following submissions and an indication from him. As we have said, the plea of guilty in respect of the count by Rahman occurred during the trial on the conspiracy to possess an imitation firearm.

"... I am satisfied of that because I’m satisfied that your offending did involve a significant degree of planning, sophistication or organisation.

"That’s why there was an unusual amount of phone contact between the two of you on the day in question. As I have indicated already, there was evidence of you, Mr Rahman, I’m satisfied, conducting reconnaissance at Lidl’s in the morning of 19 March between about 10.00 a.m. and 11.00 a.m.

"... I’m satisfied that you knew the store would be at its most defenceless when members of the public were no longer present. One cannot ever foresee how a member of the public might react if he or she witnesses a robbery. What’s more, you knew that the security guard had left.

"... further, you knew that Mr Haq would be casing up at that time and the safe with the day’s takings would be open. And you used all of that inside information to strike the store at the ideal moment."

He assessed both appellants as culpability A category 1 harm, due to the effect upon the store employee, Mr Haque. That category has a starting point of 16 years and a range of 12 to 20 years.

He considered dangerousness, as he was obliged to do, and said that although Rahman came close to such a finding, he had decided he would not find either of them dangerous in the statutory sense. He therefore went on to consider how to calculate the appropriate determinate term. Although he did not use "determinate term" it was obvious that he, having made the conclusion on dangerousness, came to sentence them in the conventional way with a fixed term of imprisonment.

He considered the appropriate adjustment from the starting point and moved to the bottom of the range, based partly on the harm to Mr Haque improving over time and also one of the other co-defendants being acquitted.

He considered mitigation. He decided that three aggravating factors by Rahman were balanced out by the mitigation. These were the restraint of the manager using ties, his previous convictions for firearms offences and the fact he was on bail at the time. He therefore arrived at a figure of 12 years, which is the figure at the bottom of the range, as we have explained, and then applied credit, resulting in a sentence on the conspiracy to rob charge of 10 years and nine months because he awarded 10 per cent credit.

Grounds of Appeal

These challenge the categorisation by the judge of the offences and in particular which set of guidelines should be used. They are not however the only grounds; that is a summary of the main point advanced.

That the learned judge applied the wrong sentencing guidelines with respect to the offence of conspiracy to rob.

The starting point from which the learned judge commenced sentencing calculation was too high.

The sentence the learned judge identified which would have been appropriate following a trial was too high.

That the learned judge gave insufficient credit to Mr Rahman for his plea of guilty to the count of conspiracy to rob.

That the judge erred in placing the offending in category 1A of the guidelines for a professionally planned commercial robbery.

That the starting point of 12 years' imprisonment was too high.

That there was insufficient disparity between the two sentences.

That the sentence of eight years and three months' imprisonment was manifestly excessive.

These grounds have been very ably and helpfully amplified orally before us by Mr Baloch for Hussain and Mr Thompson for Rahman.

Mr Baloch in particular has concentrated on the categorisation in the set of guidelines. There are two different sets for robbery. One is for street and less sophisticated commercial robbery and, as the judge explained, the other one is for professionally planned commercial robberies, although there is some degree of overlap between them.

Mr Baloch has explained that on the basis that the getaway driver was acquitted and also that there were only two people in the conspiracy, there was some planning but not a significant amount and this was certainly insufficient, he says, to merit the use of the more significant or serious sets of guidelines. He says there is not a high level of security in place at the Lidl store and all that was required to gain access were the PIN numbers to two doors. He does accept that there was some degree of planning and a number of phone calls between them two appellants but he says it is not enough to justify a finding of significant planning. He points to other matters such as the use of their own mobile phones rather than burner phones or unregistered phones, and so far as disguise is concerned he points out the somewhat basic nature of the disguise, in effect a Lidl tabard and a hat.

He is realistic that there is some abuse of trust or abuse of a position to be more accurate, but he says it is insufficient to justify the categorisation by the judge. He also identifies in terms of factors increasing seriousness that it would be insufficient to move if a different set of guidelines were used or a different category to the top of the category range. That is because if the correct guidelines were used, and he is right on categorisation and this offending should be 1B rather than 1A, the starting point would be nine years with a range of seven to 14 years. He points out that there is a significant difference in the starting point, one of seven years, between whether one selects category 1A or category 1B. He also relies strongly on the fact that there are other factors that reduce Hussain's culpability and that he is not implicated in the use of the imitation firearm.

So far as the impact on Mr Haque is concerned, he submits that although it is accepted realistically that it was a traumatic event for him, it is not the most serious type of harm that could have been suffered.

Mr Thompson for Rahman effectively has three points. The first is the use of the correct set of guidelines. He effectively adopted and endorsed the submissions of Mr Baloch on why this was not an offence which ought to have had used the guideline for sophisticated and professional commercial robbery. He says that there are insufficient factors to move it to the use of the more serious guideline. He takes particular issue with the factual finding by the judge that there was a "recce" of the premises on the morning. He points out and relies on the acquittal of Mr Islam and he says that such a finding is inconsistent with Mr Islam's acquittal. He said that all the uncontested phone evidence achieved was to place one of the phones being used and the vehicle within about half a mile of Lidl and momentarily near Lidl. He said it was open to doubt and it does not justify a finding of reconnaissance.

He accepted that if one used a lesser guideline with a lower starting point - and by lesser guideline we do not mean the lower category within the sophisticated robbery guidelines; we mean category 1A offence in the guideline for street and less commercial robberies - the starting point is eight years with a range of seven to 12 years. He accepts there must inevitably be an upward adjustment for Rahman if one were to use that guideline. But he said that upward adjustment should be upwards to the figure of more approximately 10 to 11 years. He does accept that the mitigating features available for Rahman effectively were balanced out by aggravating features. Effectively he says the figure that was taken before credit was too high and he also challenges the application of 10 per cent reduction for credit and says that that is in principle wrong because the plea was entered at an early stage in respect of the count 1 offence and the only credit that was applied was 10 per cent.

We have considered those submissions very carefully. We start by observing that although in this case the offences resulted in guilty pleas, because of the way that the count of conspiracy to possess an imitation firearm was tried and the trial had started, this puts the judge in a much better position than if the judge had been sentencing purely on guilty pleas. The trial had been partway conducted, including the giving of evidence for the prosecution, in particular of Mr Haque but also other evidence. This means that the judge had a much more complete grasp of the details of the case than this court can achieve in performing its review function.

He was ideally placed both to take a view of the offending and to make a suitable judgment as to where the offences should be placed and which guideline should be applied. This is effectively a judgment call by him. This court will only interfere with such an exercise of judgment by somebody who is effectively the trial judge if it can be shown to be obviously wrong or wrong in principle.

There are numerous features in this case that justify the use of the professional and sophisticated commercial robbery guideline. Notwithstanding Mr Baloch's skilful submissions and those which are underpinned by Mr Thompson, there was a high degree of planning. It was, without doubt, and to use the vernacular, an “inside job”. The degree of inside information required was wider simply than the PIN code access to the doors in question. The timing, the knowledge about how the cash counting process was undertaken, the fact that the individual counting the cash would be in the office, the late hour, the use of cable ties to restrain Mr Haque, the fact that the robbery was done with a degree of planning between the two of them all shows, in our judgment, that the correct guideline was used by the judge. Added to this, even if, having used the correct guideline, one should have applied category 2A rather than 1A as Mr Baloch suggests, that has a starting point of eight years with a range of seven to 12 years for 1A offence in the lesser guideline, but for the correct guideline category 2A also has a lower starting point but a similar range. If one were to assess this robbery in a lower category in the same guideline, or in category 1A in the lower guideline, a very significant upwards move would be required in both cases properly to reflect the considerable aggravating features that would not be included if one were to place the offending in the category which the sentencing judge did using the higher level of guideline.

In our judgment, this offending clearly could not be sentenced using a street or less professional commercial robbery guideline. Applying the features of this quite significantly planned operation, we find it without doubt correctly sentenced so far as the guidelines are concerned. The planning was considerable and there are a number of features to which we have already referred that make this perfectly clear.

We then turn to Mr Thompson's point in respect of credit that should be applied. The test for this court ultimately on any resulting sentence is whether it is manifestly excessive or there has been an error of principle. In our judgment, looking at the outcome sentences in respect of each of these appellants, they are neither manifestly excessive nor is there any error in principle or in judgment. There is no doubt that by doing the exercise that he did the sentencing judge applied only 10 per cent to the figure that he used as a starting point to result in a sentence that was passed on Rahman. There is equally no doubt that these are lengthy sentences. However, this was a serious and, in our judgment, professionally organised robbery with a significant impact on the manager who was simply doing his job counting the day's takings. As well as the financial impact on Lidl, it also had a significant personal impact on him, having been tied up, having what he thought was a gun pointed at him and being threatened with being killed. The judge set some store by Mr Haque's evidence when he gave evidence and was cross-examined in the trial. The fact that these offenders were caught only after a three-month long police investigation and the degree of cell site evidence necessary, does show to us that considerable sophistication in planning was used. This was after all, as we have explained, an inside job that took some time to arrange and also used a disguise in the sense that equipment was provided by one to the other so that they could masquerade as a member of Lidl staff. Neither sentence in our judgment can be said to reach the threshold of being manifestly excessive or wrong in principle and for the reasons that we have explained both these appeals fail and are dismissed.