Bazegurore & Anor v R.

The totality principle ordinarily concerns the offending before the sentencing court. It requires a sentence for multiple offences which is just and proportionate overall, rather than a simple accumulation of notional individual sentences.

Foreign convictions and sentences do not ordinarily require a domestic sentencing court to reduce a sentence. Exceptional circumstances may justify an international assessment, particularly where factual overlap creates a real risk of double punishment. Any such assessment must be realistic and fair. Foreign and domestic sentences may therefore require adjustment to reflect materially different early-release arrangements.

The appellants pleaded guilty in the Crown Court at Aylesbury to conspiracy to facilitate a breach of United Kingdom immigration law, contrary to section 1 of the Criminal Law Act 1977. Each received nine years’ imprisonment for an incident involving the transportation of 11 illegal immigrants.

Before their United Kingdom sentences, they had also been convicted in Belgium for separate but comparable people-smuggling offending. The Belgian appellate court imposed six years’ imprisonment on Shuti and five years on Bazegurore. The sentencing judge knew of the Belgian proceedings but not of the increased sentences on appeal.

The sole issue was whether totality required a reduction of the United Kingdom sentences to reflect the Belgian sentences which the appellants would later have to serve.

1. The appeals were refused. The appellants had been sentenced for two separate offences in separate jurisdictions. The Sentencing Council totality guideline concerns multiple offending before the sentencing court. It did not, on its face, require the Crown Court to take account of the Belgian sentences.

2. The court nevertheless declined to hold that foreign sentences are invariably irrelevant. Totality reflects wider requirements of justice and proportionality. Exceptional circumstances may require an international assessment, for example where overlapping facts create a risk of double jeopardy and thereby engage fundamental rights such as Article 6.

3. Ordinarily, however, a court sentences on the facts before it. A general duty to investigate and assess foreign convictions would produce arbitrary outcomes, practical difficulties and satellite disputes. Persons participating in transnational criminality must also accept the risk of separate sanctions of differing severity in more than one jurisdiction.

4. The court considered R v Prenga [2017] EWCA 2149 (Crim) as analogous support for a fact-sensitive discretion to adjust an otherwise lawful sentence in the interests of justice, while giving weight to finality. The Belgian sentences had not been fully placed before the Crown Court by the appellants, despite their knowledge of them.

5. In any event, no reduction was justified. A realistic totality comparison required adjustment for the differing early-release regimes. The six-year Belgian sentence equated to four years’ domestic imprisonment, and the five-year sentence to three years and four months. The resulting combined terms were below, or at most comparable with, an appropriate domestic total sentence for both conspiracies. The nine-year United Kingdom sentences were therefore neither unjust nor disproportionate.

• Court of Appeal (Criminal Division) — the appeals against sentence were refused: [2020] EWCA Crim 375.
• Crown Court at Aylesbury — following guilty pleas, each appellant was sentenced on 19 September 2018 to nine years’ imprisonment for conspiracy to facilitate a breach of United Kingdom immigration law.