R v Afewerki Musse

For a passenger who attempts to enter the United Kingdom without valid entry clearance, custody will generally be required. The ordinary provisional sentence is about 12 months’ imprisonment before case-specific adjustment for additional culpability or harm, aggravating and mitigating circumstances, and credit for a guilty plea.

Relevant previous convictions may justify an uplift, but the uplift must remain proportionate to their circumstances. A sentencing court must not impose a substantially increased starting point without adequate justification. Personal mitigation and full credit for an early guilty plea must be given appropriate effect.

The appellant, an Eritrean national, pleaded guilty at Leeds Magistrates’ Court to attempting to arrive in the United Kingdom without valid entry clearance after travelling as a passenger in a small boat across the English Channel. He was committed to the Crown Court for sentence under section 14 of the Sentencing Act 2020.

The Crown Court at Leeds sentenced him to 20 months’ imprisonment. It treated his previous Belgian convictions, including serious drug and violent offending, as demonstrating a serious risk of future offending in the United Kingdom. The appellant appealed with permission of the single judge, contending that the sentence was manifestly excessive because the uplift for antecedents was too great and insufficient weight was given to mitigation.

The central issue was the proper application of the sentencing guidance in R v Ginar [2023] EWCA Crim 1121.

1. The appeal was allowed. The court quashed the sentence of 20 months’ imprisonment and substituted 12 months’ imprisonment.

2. The court applied the guidance in R v Ginar [2023] EWCA Crim 1121. For this type of unlawful-arrival offence, the custody threshold will generally be crossed. The ordinary provisional sentence is about 12 months before adjustments for additional culpability or harm, aggravation, mitigation and guilty-plea credit.

3. The appellant’s poor criminal record justified an increase from the ordinary 12-month starting point. However, the Recorder’s increase to a 30-month post-trial starting point, a 250 per cent increase, was not justified on the facts. The court accepted that there was no evidential basis for treating the appellant as likely to continue a criminal lifestyle in the United Kingdom.

4. The appropriate sentence after a trial was 18 months’ imprisonment. The appellant had pleaded guilty at the first opportunity and was entitled to one-third credit. The resulting sentence was therefore 12 months’ imprisonment.

5. The court also confirmed under section 33 of the Sentencing Act 2020 that a pre-sentence report had not been necessary.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted 12 months’ imprisonment for the Crown Court’s 20-month sentence.
• Crown Court at Leeds: On 16 April 2024, imposed 20 months’ imprisonment following the appellant’s committal for sentence.
• Leeds Magistrates’ Court: On 29 January 2024, accepted the appellant’s guilty plea and committed him to the Crown Court for sentence under section 14 of the Sentencing Act 2020.