R v Wasiim Omar

We have made an anonymity order in relation to the victims of the applicant’s offence. We bear in mind that the normal rule is open justice, but anonymity is necessary in order to protect the victims’ privacy.

On 17 September 2024, in the Crown Court at Birmingham before HHJ Buckingham, the applicant was convicted by a jury on one count of conspiracy to commit robbery contrary to section 1(1) of the Criminal Law Act 1977 . On 13 January 2025, before the same judge, he was sentenced to 17 years and three months’ imprisonment. He was 24 years old at the date of sentence.

Four co-conspirators were sentenced at the same time, as follows. Ali Hassan (aged 21) was sentenced to 16 years and 9 months’ imprisonment after trial. Abubaker Al Ezawy (aged 21) pleaded guilty and was sentenced to 16 years and 5 months’ imprisonment. Demalji Hadza (aged 21) pleaded guilty and was sentenced to 16 years and 2 months’ detention in a young offender institution. Mohammed Sharif (aged 23) was sentenced to 12 years’ imprisonment after trial.

The applicant renews his application for leave to appeal against sentence after refusal by the single judge.

The conspiracy related to nine robberies between 1 April 2023 and 23 February 2024. One robbery took place in Derby. Eight robberies took place in Birmingham.

The applicant was not directly involved in all the robberies. We shall limit our consideration of the facts to the robberies in which he had direct involvement. Nevertheless, we emphasise at the outset that the applicant was part of an overall conspiracy to carry out well-planned robberies targeted at gay and bisexual men. The conspirators operated by creating false profiles on the dating application (“app”) Grindr in order to target gay and bisexual men for significant financial gain. Having been targeted on account of their sexual orientation, the victims were also subjected, during the course of the robberies, to insult, humiliation and cruelty arising from hostility towards gay and bisexual men.

The applicant was aged 22 at the time of the offending. He was not directly involved in the Derby robbery and so we shall say no more about it. He was directly involved in the following Birmingham robberies.

On 27 April 2023, a victim whom we shall call AA was robbed by the applicant and co-conspirators in the Golden Hillock Sports Ground having been targeted on Grindr for about four weeks. There were four robbers. They took AA’s telephone and moved him into the darkness. They demanded his PIN codes, stating he would be stabbed if he did not give correct numbers. The robbers left after telling AA to stay where he was for an hour. They said that they would be watching him and that he would be stabbed if he moved.

The robbery lasted approximately two hours, during which time AA’s stolen phone was used to access banking apps. A total of £6,237 was stolen from his bank accounts. The robbers stole his car. AA suffered a fractured eye socket along with facial bruising.

On 2 May 2023, the victim BB went to the same sports ground having been targeted on Grindr. He was attacked by a group of men and pinned to the ground. The robbers took his phone and demanded that he unlock his banking apps. They threatened to punch or stab him if he did not co-operate. Some of the robbers left with his bank cards and then phoned those who remained with BB, asking them to get the correct PIN codes.

The robbers that remained tried to set up a new bank account using BB’s telephone. Chase Bank called BB, while he was being held captive, to confirm a £5,000 transfer. Threatened with being stabbed, BB was forced to say that the transfer was legitimate. At the end of the robbery he was told to stay where he was and that he would be stabbed if he moved before the robbers made their escape.

BB had been held captive over the course of approximately two and three quarter hours. A total of £10,860 was stolen from him, with an unsuccessful attempt to steal an additional £982.

On 11 May 2023, CC was out late at night because he could not sleep. He was approached by a man who asked for help, saying that his mother had been stabbed. CC went into the sports ground to assist. There were three more males lying in wait for him, all wearing balaclavas. They punched him to the ground and held him captive. They then produced a knife with a four-inch blade and threatened to stab CC if he did not comply with their demands. The robbers used degrading language such as: “Why don’t you like pussy?” and “You’re a dirty paedo.” CC was then told “tell Louise you love her” as he was being punched and recorded on one of the robber’s phones. He was forced to unlock his own phone.

CC was told not to look up at the robbers and to stay where he was for half an hour after they had left. They said that someone was watching him and threatened to return and hold him captive all day if he moved. As well as taking cash, gold jewellery and his jacket, the robbers, having managed to access CC’s banking apps, stole £1,435 .

On 12 May 2023, DD attended the sports ground in the early hours of the morning where he believed he was about to meet someone he had befriended on Grindr. His car keys were taken by Hadza who went to search his car. He was punched and kicked by others. While he was on the ground he was told to keep his eyes closed or he would be stabbed. He was aware of something cold and sharp being pressed to his side, which he believed to be a knife. He was able to see that there were three or four robbers actually at the scene.

DD was forced to shout “I like to fuck girls” over a hundred times. His iPhone was taken from him and held up to his face to use facial recognition to access his banking apps. He was told he would be stabbed if he did not comply.

When the robbers had finished accessing his banking apps they told him to stay put for 30 minutes and to continue to shout humiliating words. It was 5:00 am when DD returned to his car and found his car keys on a tyre. The robbery had lasted well over two hours. A total of £16,839 was stolen from his bank accounts.

On 11 July 2023, EE went to the same sports ground having been targeted on Grindr. The applicant collected Al Ezawy in a taxi in order to carry out the robbery. EE was dragged to the ground, kicked and punched. His face was pushed into the mud to prevent him seeing anything. Both attackers were wearing balaclavas. EE was told several times that if he moved he would be stabbed. The robbery lasted for around 50 minutes and was only brought to a close when EE pretended to be ill. His phone was returned to him but only after his banking apps had been accessed with £4,900 stolen.

On 16 July 2023, FF had gone to Broad Street for a night out. He was taken from the scene and forced into Hadza’s van where he was plied with cannabis and laughing gas. He was driven to his flat. His next recollection was waking up lying on the floor of his living room. The robbers were present and told him to go with them and sit in the van outside. FF remained in the van for many hours. On a number of occasions the robbers put his stolen telephone to his face so they could use his biometrics to access his banking apps. At around 2:30 - 3:00 am he was allowed out of the van and walked to a local police station. A total of £2,458 was stolen from his bank accounts as well as just short of £18,000 in cryptocurrency. The robbery had lasted for a minimum of twelve and a half hours.

We have read the moving and dignified personal statements from the victims. They describe in detail the serious mental and emotional effects of these frightening events.

The applicant had no previous convictions. The judge had the benefit of a pre-sentence report which describes how the applicant was brought up in the Netherlands before coming to the United Kingdom in 2018. It appears that he has learning difficulties. His parents have separated. His mother has mental health conditions. The report-writer was of the opinion that he displays a low degree of maturity and that he is unlikely to commit a similar offence in the future.

In her sentencing remarks, the judge applied the sentencing guideline for “Robbery – street and less sophisticated commercial” (hereafter “the Guideline on Street Robbery” or “the Guideline”). She concluded that each of the robberies in the conspiracy was a high culpability. i.e. Level A, offence, either because a knife was produced or because hostility was displayed to the victims based on their sexual orientation.

As regards the level of harm, the judge held that the 11 July robbery had caused the victim serious physical or psychological harm, so that it fell within Category 1, which is the highest of the three levels of harm under the Guideline. The other robberies fell within Category 2 which is the medium level of harm. The judge did not set out whether she was treating the offending overall as falling into Category 1 or Category 2 harm. She did not identify the applicable starting point or category range under the Guideline.

The judge considered aggravating factors. She referred to the high value of goods and monies targeted; the significant planning and preparation; the significant steps taken to prevent the victims from contacting the police; and the threats of violence if they sought to report what was happening or obtain assistance from anyone. She gave weight to the prolonged nature of the robberies, noting in particular that FF had essentially been kept a prisoner in his own home for many hours and that the other robberies were rarely less than one or two hours’ duration. Balaclavas or face coverings were used to hide the conspirators’ identities.

The judge stated that section 66 of the Sentencing Act 2020 applied and that she would treat hostility related to sexual orientation as an aggravating factor. She stated that she would apply a significant upward adjustment to the conspirators’ sentences to reflect the large number of aggravating factors.

The judge considered mitigating factors. She took into account that all five conspirators had no previous convictions. She confirmed that she had considered the pre-sentence reports about each of the conspirators and all the other information about them that was before her. She took into consideration the young age of the conspirators in the following terms:

“When considering and reflecting upon your ages at the time of the offending, I accept, as is now recognised by the courts, that many young men, including you, often mature emotionally and cognitively much more slowly than women and do not reach their full maturity until their mid-20s. I accept, as supported by the contents of the pre-sentence reports, that in each of your cases your personal levels of maturity as against your chronological age may well indeed be lower ” (emphasis added).”

The judge then imposed the various sentences on the applicant and each of his co-conspirators that we have already described. In the applicant’s case, she stated in brief terms that the sentence was 17 years and three months.

The Guideline on Street Robbery treats an offence as involving high culpability if “motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation or transgender identity.” For convenience, we shall refer to hostility based on any of these characteristics as “hostility based on personal characteristics” or simply as “hostility.”

Turning from the offence-specific guideline to the wider picture, section 66 of the Sentencing Act provides in so far as relevant:

“ 66 Hostility

This section applies where a court is considering the seriousness of an offence which is aggravated by—

racial hostility,

religious hostility,

hostility related to disability,

hostility related to sexual orientation, or

hostility related to transgender identity.

The court—

must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and

must state in open court that the offence is so aggravated.

For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in sub section (1 ) if—

at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—

the victim's membership (or presumed membership) of a racial group,

the victim's membership (or presumed membership) of a religious group,

a disability (or presumed disability) of the victim,

the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be)

the victim being (or being presumed to be) transgender, or

the offence was motivated (wholly or partly) by—

hostility towards members of a racial group based on their membership of that group,

hostility towards members of a religious group based on their membership of that group,

hostility towards persons who have a disability or a particular disability,

hostility towards persons who are of a particular sexual orientation, or (as the case may be)

hostility towards persons who are transgender.

For the purposes of paragraphs (a) and (b) of subsection (4), it is immaterial whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that paragraph.”

It will readily be seen that Parliament has in section 66 stipulated that hostility based on personal characteristics must be treated as an aggravating factor ( section 66(2) (a)) and stated in open court to be so ( section 66(2) (b)).

Parliament’s stipulation is reflected in the Sentencing Council’s “General guideline: overarching principles” which reminds sentencing judges that hostility based on personal characteristics is a statutory aggravating factor. The General Guideline also reminds judges that, in treating hostility as an aggravating factor, “care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence.”

As in the case of other offence-specific guidelines, the Guideline on Street Robbery contains a list of statutory aggravating factors that should be taken into account in relation to offences falling within the Guideline. Unlike in some other offence-specific guidelines, the list in the Guideline on Street Robbery makes no mention of hostility based on personal characteristics. Given that it is listed as a high level culpability factor, there was no need for the Guideline to repeat it as an aggravating factor. The Sentencing Council doubtless had in mind that repetition could lead to double counting (i.e. the same characteristic of a person’s offending being counted both as a culpability factor and then also as an aggravating factor).

Mr Solley on behalf of the applicant did not direct our attention to any judgment of this court dealing with the treatment of offences aggravated by hostility based on sexual orientation. This court in R v Kelly & Donnelly [2001] EWCA Crim 170 , [2001] 2 Cr. App. R. (S.) 73 suggested a two-stage approach to sentencing racially aggravated offences: first, a consideration of what the sentence should be absent the aggravation; and, secondly, a consideration of how much the sentence should be increased to reflect the element of aggravation. The court held that the judge’s conclusions at each stage should be stated in open court. We note that this two-stage process is not required or suggested by the statute, and that Kelly & Donnelly pre-dates the present scheme of the Sentencing Guidelines.

The position in Kelly & Donnelly was qualified in R v Graeme Paul Fitzgerald [2003] EWCA Crim 2875 , [2004] 1 Cr. App. R. (S,) 436 in which the court held that the two-stage approach will not be applicable in all cases. The court held at para 11:

“There will be cases, and the present is one, in which the racial aggravation of the offence is so inherent and integral to the offence itself that it is not possible sensibly to assess the overall criminality involved in such a discrete way . In such cases, the Court must assess the seriousness of the conduct involved and its criminality as a whole” (emphasis added).

In R v Gargan [2017] EWCA Crim 780 , [2018] 1 Cr. App. R. (S.) 6, the court observed that the two-stage approach appeared to be more readily applicable in cases where there was a distinct offence, such as an assault, even without the racial element. By contrast, the offender in Gargan was convicted of causing racially aggravated harassment, alarm and distress in circumstances where he had used racially offensive language to a woman in a public house. The court held that “the racial element was the very essence of the offence” and did not require a discrete uplift.

As we have said, the applicant was only 22 years old at the time of his offending. We have kept in mind that an offender's eighteenth birthday is not a “cliff edge” and that, in dealing with an eighteen-year-old who is immature, a court may need to approach sentence as if dealing with one who, in law, is a child ( R v Cush [2024] EWCA Crim 1382 , [2025] 1 W.L.R. 387 , para 44, per Lady Carr of Walton-on-the-Hill CJ; see also R v Clarke [2018] EWCA Crim 185 , [2018] 1 Cr. App. R. (S.) 52, para 5).

In R v ZA [2023] EWCA Crim 596 , [2023] 2 Cr. App. R. (S.) 45, this court observed:

“52. It has been recognised for some time that the brains of young people are still developing up to the age of 25, particularly in the areas of the frontal cortex and hippocampus. These areas are the seat of emotional control, restraint, awareness of risk and the ability to appreciate the consequences of one's own and others' actions; in short, the processes of thought engaged in by, and the hallmark of, mature and responsible adults. It is also known that adverse childhood experiences, educational difficulties and mental health issues negatively affect the development of those adult thought processes.”

In his written and oral submissions, Mr Solley advanced what were in substance four grounds of appeal.

Mr Solley submitted that the judge had engaged in undue double counting because she had treated hostility based on sexual orientation both as relevant to the level of culpability in her categorisation of the offence and as an aggravating factor under section 66 . Secondly, she had not pronounced the sentence absent the aggravating factor of hostility and had not pronounced a discrete uplift for hostility, and so had failed to follow the two-stage approach of Kelly & Donnelly .

We accept that the judge in her sentencing remarks counted hostility based on sexual orientation both as relevant to the categorisation of the offence and as an aggravating factor. She expressly recognised the risk of double counting and stated that she had sought to avoid it. However, it is unclear from the sentencing remarks how she did so. Her sentencing remarks, which are otherwise commendably clear, are difficult to follow in relation to the risk of double counting. To this extent, we accept Mr Solley’s submissions.

However, the judge was unquestionably correct to categorise the offence as involving Level A culpability on the grounds that the offending was motivated by, and demonstrated, hostility to the victims based on sexual orientation. Any lower assessment of culpability would not have reflected the seriousness of the offending. By taking part in the conspiracy, the applicant took part in a Level A offence and the judge was correct to sentence him on that basis.

Furthermore, there were numerous ways in which the applicant, together with the other conspirators, demonstrated hostility based on sexual orientation. The conspiracy operated by deliberately targeting men who used the dating app Grindr, an online platform used by gay and bisexual men. The conspirators targeted their victims using the Grindr app because they believed that gay men were likely to have substantial funds in their bank accounts and would be reluctant to report the offences to the police for fear of being identified as users of the platform. CC was subjected to hateful language. DD was subjected to humiliation by being compelled to shout offensive and obscene words. Each of these factors arose from hostility based on sexual orientation.

These additional elements of hostility warranted a significant upward adjustment. Irrespective of the way in which she decided to elevate the sentence, the judge was justified in the upward adjustment that she made.

We doubt the need for a judge to make any statement under section 66(2) (b) where, under the modern Sentencing Guidelines, hostility based on personal characteristics is already to be assessed – and stated in open court as falling – within the culpability determination, prior to any separate consideration of statutory aggravating factors. To do otherwise invites double counting. In the present case, the hostility was an inherent and integral part of the way in which the conspiracy operated and so (as in Fitzgerald ) the two-stage approach of Kelly & Donnelly could not in any event have been sensibly applied. There can be no criticism of the judge for not applying it.

This ground of appeal is not reasonably arguable and fails.

Emphasising that the applicant did not reach a “cliff edge” when he turned 18, Mr Solley submitted that the judge at least arguably failed to give sufficient weight to the applicant’s age and immaturity as mitigating factors.

We reject this submission. The judge was under a duty to consider the applicant’s age and immaturity in accordance with the principles in the case law which we have summarised above. Reading her sentencing remarks fairly, it is plain that she did so. She did not adopt a “cliff edge” approach. She accepted that the applicant had not reached full emotional and cognitive maturity. She treated his lack of maturity as a mitigating factor.

We are not persuaded that the judge made any arguable error of approach or that she arguably gave inadequate weight to the mitigation provided by the applicant’s age. This ground of appeal is refused.

Mr Solley submitted that there was no or insufficient distillation of the applicant’s individual role or explanation of why others received shorter sentences beyond any credit-based reduction.

This submission fails to take into account that the applicant was convicted of a conspiracy to commit what the judge properly described as a “campaign of multiple robberies.” The judge took into consideration that the applicant was not involved in the Derby robbery or in several of the Birmingham robberies. To this extent, she took into consideration the applicant’s individual role in the overall conspiracy. She was not required to ascribe one or other actions to the applicant in the events in which he participated. He and his co-conspirators were in it together. He provided support and assistance to his co-conspirators as well as taking a direct part in the multiple robberies that we have described above. He was properly sentenced for his part in the conspiracy.

Mohammed Sharif’s much lower sentence is explained by his much lesser role and by other mitigation which did not apply to the applicant. Mr Solley did not advance any specific argument about disparity between the applicant’s sentence and those of Hassan, Al Ezawy or Hadza.

Ground 3 is not reasonably arguable and is refused.

Mr Solley submitted that the judge had taken a rigidly arithmetical approach to aggravating factors and had not properly balanced those factors against the mitigating factors.

We disagree. By way of mitigation, the applicant was young and immature with no previous convictions. However, he was part of a group which carried out repeated and prolonged robberies including the sophisticated targeting, detention and degradation of its victims. The financial value of the robberies was considerable.

As we have said, the offending fell within Level A culpability. As for harm, the judge found that the robberies of AA and EE fell within Category 1. The applicant was directly involved in those robberies. We see no justice in him avoiding punishment for Category 1 offending simply because he harmed other people somewhat less. His offending fell within Category 1A of the Guideline with a starting point of eight years’ custody and a category range of seven to 12 years’ custody.

The starting point of eight years, and the category range, apply to a single offence of robbery after a trial. This was, however, a campaign of robberies of such gravity that the judge was entitled to reach a sentence that was well above that range. In the context of the seriousness of the offending, it is not reasonably arguable that a sentence of 17 years and three months was manifestly excessive.

In conclusion, the grounds of appeal are not reasonably arguable. Despite Mr Solley’s helpful submissions, this renewed application is refused.