Al-Buhairi, R. v

A sentencing court should not reduce an otherwise proper custodial term to reflect possible ineligibility for early release under a home detention curfew scheme. Release depends on an individual assessment by the prison governor, including whether the prisoner is likely to complete curfew successfully. Nationality does not determine the outcome in every case. The possible difference in time actually served is therefore too speculative to form a proper basis for sentencing.

The appellant was convicted at Sheffield Crown Court of conspiracy to handle stolen goods and sentenced to 18 months’ imprisonment after a contested trial. The conspiracy involved stolen high-value Mercedes cars which were given false identities and exported. The appellant was linked to four vehicles.

He appealed against sentence, contending that insufficient allowance had been made for his limited role, good character, personal losses and the consequences of imprisonment abroad. His principal submission was that, as a foreign national eligible for deportation, he could not benefit from early release on home detention curfew in the way a United Kingdom national might.

The central issue was whether the sentence should be reduced to reflect that asserted difference in eligibility for early release.

1. Appeal dismissed. The sentence of 18 months’ imprisonment was not manifestly excessive. The offence was a well-organised and professional car-ringing conspiracy involving high-value vehicles, and the appellant was plainly linked to at least four cars. He had contested the trial and was entitled to no credit for an admission of involvement. The sentence was within the range properly open to the sentencing judge.

2. The court rejected the submission that an otherwise proper sentence should be reduced because the offender might not receive early release on home detention curfew. Release under that scheme was a matter for the discretion of the relevant prison governor, who had to assess the circumstances of the individual case and prisoner.

3. The governor’s decision required a rational and reasonable risk assessment, including whether the prisoner was likely to complete the curfew period successfully. Foreign nationality did not necessarily exclude a prisoner from the scheme. Nor was early release certain for a prisoner of any nationality.

4. The asserted disparity in time actually served was therefore too speculative to guide sentencing. Requiring sentencing judges to predict whether a particular offender would receive release under the administrative procedure would place them in an impossible position. No allowance was made on that basis.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against sentence and upheld the 18-month term.

• Sheffield Crown Court: on 17 July 2003, convicted the appellant of conspiracy to handle stolen goods and sentenced him to 18 months’ imprisonment.