[2025] EWCA Crim 1235

We have been greatly assisted not only by the written and oral submissions on behalf of the applicant made by Mr Wainwright and Miss Thomas-Davis, but also by the helpful and comprehensive written submissions of Mr Peter Ratcliff, Treasury counsel, who was instructed at short notice in order to assist the court on the first proposed ground of appeal.

We would accept that there may be some offences and some circumstances where a defendant's immigration status may be relevant as an aggravating factor. An example may be if a defendant enters the country illegally for the purpose of committing offences, although even in those circumstances it may be that more conventional aggravating factors, such as a significant element of planning, would be sufficient to meet the justice of the case. However, the judge's approach appears to have been that the fact that a defendant is in the country illegally – or perhaps more accurately has entered the country illegally – is an aggravating factor of general application in every case where that is the position. While there may be an argument that that ought to be the general approach of sentencing courts, it would raise significant questions, not only of general sentencing policy and principle, but also as to the practical effect if the Crown Court is required to investigate a defendant's immigration status, including whether they have a valid claim to be granted asylum, in every case where such a question might arise. That would be necessary because any aggravation arising out of a defendant's illegal entry, unrelated to the particular facts of the offence, would be likely to be substantially mitigated – and perhaps eliminated – if it turned out that the defendant had a valid claim, or even an arguable claim, to asylum because of a well-founded fear of persecution in their home country. The Crown Court is not well placed to investigate such questions which are the responsibility of the Tribunal system. They would very substantially complicate and prolong the sentencing process. Indeed, in the present case the judge rightly said that he was not in a position to make findings about what had led the applicant to leave his home country. Such questions are best considered, if they need to be considered at all, by the Sentencing Council so that proper account could be taken not only of the wide ranging policy questions which would arise and the widely differing scenarios in which such question might arise, but also of the resources available to the Crown Court to investigate these matters. Potentially, they would have a very significant impact on the efficient conduct of the business of the Crown Court, with the danger that any sentencing hearing concerning an asylum seeker would need to be concerned with the validity of their asylum claim.

It is sufficient for the purpose of this case to say that the judge did not identify any specific feature of the applicant's offending which made it appropriate to treat his illegal entry as an aggravating factor in this particular case; and that to the extent that he treated the applicant's illegal entry into the country as an aggravating feature of general application, he was wrong to do so. If the judge's approach had been to treat the applicant as having committed an immigration offence in circumstances where he had not been charged or convicted of any offence, and to treat that as an aggravating factor, that would, in our judgment, have been wrong in principle, although we do not read that as having been the judge's approach in this case.

Mr Wainwright submits that because the judge treated the applicant's illegal arrival as an aggravating factor and was wrong to do so, this court should mark that error by making a reduction in sentence, irrespective of whether the sentence arrived at by the judge was manifestly excessive. He referred to R v Lounds [2014] 1 Cr App R(S) 75 and the earlier case of R v Harper (1968) 52 Cr App R 21, where this court had regarded it as appropriate to make some reduction in the sentence as a result of what was described in Lounds as "a clear breach of a fundamental tenet of sentencing". Mr Wainwright submitted that this is such a case.

While it appears that there have been some occasions, exemplified by the cases referred to, where this court has regarded that as an appropriate course, such cases will always be fact specific. In our judgment, the case with which we are concerned is not such a case. The question is not whether anything said by the judge in the course of his sentencing remarks was wrong in principle, but whether the overall sentence at which he arrived was either wrong in principle or manifestly excessive. That is the question which we have to consider.

For that purpose it is not significant whether the sentences imposed were consecutive or concurrent. As these were two separate incidents, we see nothing wrong in principle in the imposition of consecutive sentences. Had concurrent sentences been imposed, with some increase in the sentence for the lead offence of robbery, that would also have been an approach which we would not have criticised.

As to the robbery, which was the most serious of the applicant's offences, there is no challenge to the judge's categorisation of this offence as falling within category B3, with a starting point of two years' custody. The judge was entitled to find, as he did, that the offending was only just short of falling within the high culpability category and therefore would have been entitled to increase the starting point within the B3 range, which goes up as far as four years' custody. The judge made some, albeit limited, allowance by way of mitigation for the fact that the offences were committed in circumstance of destitution; for the fact that the applicant had no previous convictions; and for the consequences of the injury which the applicant had received to his arm. We agree that the mitigation was limited.

While destitution may provide mitigation, the extent to which it does so must depend on the circumstances of the case. Clearly, it will be a more significant mitigating factor in a case such as shoplifting, where no violence is used, than it is in a case of robbery, where the offence is one of violence, actual or threatened. These are matters for the judgment of the sentencing court.

Balancing all of those factors, the judge arrived at a sentence of 16 months' imprisonment for the robbery, before credit for the guilty plea. He did not explain how much, if at all, he had increased the sentence as a result of the applicant's immigration status; but if he did increase the sentence to take account of this, it is apparent that he did so to a very limited extent. It is apparent also that if he did increase the sentence above the two year starting point to take account of his view that the production of the weapon to threaten violence only just fell short of the high culpability factor, again he did so only to a very limited extent. Taking account of that last factor, we do not consider that a sentence of 16 months' imprisonment before credit for the guilty plea can be regarded as manifestly excessive.

Similarly, the judge was right to place the offence of affray within category B3. He was also entitled to say that the offending fell at the upper end of category B3. That means that a sentence up to 36 weeks' imprisonment (nine months) would have been appropriate before mitigation and credit for the guilty plea. The mitigation was limited for the same reasons as in relation to the robbery offence. The judge was therefore entitled to say that the appropriate sentence after trial would have been six months' imprisonment. The credit for the guilty plea to which the applicant was entitled was 25 per cent. The judge made an appropriate reduction to both sentences and reduced the overall sentence further to take account of totality, arriving at his total sentence of 15 months' imprisonment.

In our judgment, having regard to the violent and threatening nature of the offences, which involved a weapon which was intended to and did intimidate, and the limited mitigation available to the applicant, this overall sentence cannot be regarded as manifestly excessive.

We should add that it has rightly not been suggested that the sentence ought to have been suspended. That was considered and rejected by the judge. In view of the content of the pre-sentence report, that would have been a difficult submission to advance.

For these reasons the application for leave to appeal against the sentence is refused.