Mintchev, R. v

An otherwise appropriate sentence must not be reduced merely to avoid automatic deportation. Sentences must remain commensurate with the seriousness of the offence. A sentencing judge must not produce a contrived result to prevent a statutory consequence from taking effect.

Automatic deportation under the UK Borders Act is a consequence of a qualifying sentence, rather than a penalty forming part of it. The possibility of deportation therefore does not engage section 116(3) of the Criminal Justice Act. A sentence close to the statutory threshold does not alter those principles.

The appellant pleaded guilty in the Crown Court at Kingston upon Thames to unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861. He had stabbed his flatmate in the abdomen after becoming heavily intoxicated. He received 12 months’ imprisonment.

He appealed against sentence, relying on his positive character, mitigation and the fact that a 12-month sentence engaged automatic deportation. The central issue was whether the court could reduce an otherwise appropriate sentence to avoid that consequence.

Appeal dismissed. The 12-month sentence was not manifestly excessive. Given the use of a knife and the applicable sentencing guideline, it was at least generous.

1. The proper starting point was to assess sentence without regard to automatic deportation. Sentences must be commensurate with the offence’s seriousness. A judge is neither entitled nor obliged to manipulate an otherwise appropriate sentence to prevent a statutory provision operating.

2. Section 32 of the UK Borders Act applied because the sentence was 12 months’ imprisonment, subject to the statutory exceptions. Automatic deportation was a consequence of the sentence, not a penalty within it. Section 116(3) of the Criminal Justice Act therefore did not apply.

3. Attorney General’s Ref. No 50 of 1997 (David Victor V) [1998] 2 Cr App R(S) 155 supported the same principle. It was impermissible there to reduce a sentence in order to limit statutory registration requirements, and that reasoning applied equally to automatic deportation.

4. Hakimzadeh [2010] 1 Cr App R(S) 8 did not assist the appellant. Properly understood, it approved only an alteration in the structure of an otherwise appropriate sentence. It did not authorise a reduction in sentence length to avoid automatic deportation. Lyla Turner [2010] EWCA Crim 2897 had expressed doubt about such manipulation, although it had not been necessary there to reach a concluded view.

5. The sentence was not borderline on the facts. The appellant’s personal mitigation did not justify a further reduction solely to avoid automatic deportation.

• Court of Appeal (Criminal Division): Leave to appeal against sentence was granted. The appeal was dismissed.
• Crown Court at Kingston upon Thames: The appellant pleaded guilty to unlawful wounding and was sentenced to 12 months’ imprisonment. A count of wounding with intent was ordered to remain on the file in the usual terms.