Kvec, R v

For conspiracy to facilitate unlawful entry, sentence severity properly reflects cumulative aggravating features. These include financial gain, facilitation for strangers, sustained and sophisticated planning, a leading role, and the number and vulnerability of those brought into the United Kingdom. A limited guilty plea may attract little mitigation where a Newton hearing is required.

A substantial disparity between the sentence of an organiser and those of co-accused is justified where the organiser directed, funded and profited from the enterprise. In a hopeless renewed application, the court may order that time spent as an applicant does not count towards sentence, although fairness may make such an order inappropriate in an individual case.

The applicant pleaded guilty at the Crown Court at Chester to conspiracy to facilitate the unlawful entry of individuals into the United Kingdom. His basis of plea was rejected after a Newton hearing. The Recorder found that he had organised, for profit, a scheme using co-accused to bring 18 unattached Romanian children into the United Kingdom. Thirteen children were unaccounted for.

He received eight years’ imprisonment and a recommendation for deportation. A single judge refused leave to appeal. On renewal before the Full Court, the applicant contended that the sentence was manifestly excessive and unfairly disparate from the shorter sentences imposed on his co-accused.

1. The renewed application for leave to appeal against sentence was refused. Mr Justice Coulson, giving the judgment of the court, held that the eight-year sentence could not possibly be regarded as manifestly excessive.

2. The court applied the aggravating features identified in R v Le and R v Stark [1999] 1 Cr App R(S) 422. Apart from the limited mitigation available for the guilty plea, every relevant feature was present: the offending was for profit; it facilitated entry for strangers; it was a prolonged, planned and organised conspiracy; the applicant had the leading role; and it involved a large number of entrants. The vulnerability of unaccompanied children, and the fact that 13 could not be accounted for, materially increased the seriousness.

3. The comparison with R v Jarneil Singh Saini [2005] 1 Cr App R(S) 62, where the principal conspirator received seven and a half years, supported rather than undermined the conclusion. Any difference in sophistication did not significantly differentiate the underlying conspiracies.

4. There was no parity error. The co-accused had much smaller roles. The applicant organised and ran the operation and paid them to carry out its practical steps. The Recorder’s findings at the Newton hearing therefore made a considerably longer sentence inevitable.

5. The court declined to direct that time spent as an applicant should not count towards sentence because it was not established that the applicant understood the consequences of renewal. It nevertheless reiterated that such orders can and will be made where an appeal is hopeless.

• Court of Appeal (Criminal Division) Refused the renewed application for leave to appeal against the eight-year sentence.
• Court of Appeal single judge Refused leave to appeal, describing the application as wholly without merit.
• Crown Court at Chester Following a Newton hearing, the Recorder rejected the applicant’s limited basis of plea, found him to be the principal organiser, imposed eight years’ imprisonment, and recommended deportation.