R v Kamaran Kadar & Anor

Where people-smuggling offences have no offence-specific sentencing guideline, sentence must reflect the offender’s individual role, culpability, harm and mitigation. The absence of a guideline permits a wider range of reasonable sentencing judgments, but it does not displace the requirement that the term be proportionate and not manifestly excessive.

An appellate decision which expressly states that it is not a guideline case creates no sentencing benchmark for future cases. Delay will attract only limited mitigation where it principally results from a large investigation and the need for a complex trial.

Two defendants appealed sentences imposed in the Crown Court at Bournemouth following their involvement in an operation to bring Kurdish migrants into the United Kingdom unlawfully in a refrigerated HGV.

Kadar pleaded guilty to conspiracy to facilitate a breach of immigration law and received four and a half years’ imprisonment after mitigation and credit for his plea. Mustafa was convicted after trial of assisting the final unlawful immigration and received two and a half years’ imprisonment.

The appeals challenged the sentences as manifestly excessive. Kadar relied on his assertedly limited role, pressure from the organiser and personal mitigation. Mustafa relied on his limited involvement, delay and the sentences in another case said to provide a benchmark.

1. Both appeals were dismissed. Neither sentence was manifestly excessive.

2. There was no offence-specific guideline. Sentencing therefore required an assessment under the General Overarching Principles Guideline, informed by the maximum sentence and the individual offender’s culpability, harm, role and mitigation. The absence of a guideline could produce a wider spread of reasonable custodial terms. It did not make a proportionate sentence excessive merely because a lower term was also available.

3. The court rejected reliance on R v Nogib Ali & Ors [2018] EWCA Crim 405 as a sentencing benchmark. That decision had expressly stated that it was not a guideline case. Its express disclaimer meant that it created no benchmarks for later cases.

4. Kadar had become a trusted assistant in an ongoing and sophisticated people-smuggling operation. He repeatedly participated, was motivated in part by promised reward and undertook an important co-ordinating role in the final mission. The judge had properly taken account of the pressure exerted by the organiser and of Kadar’s substantial personal mitigation. A notional sentence of at least six and a half years before personal mitigation, reduced to five and a half years and then to four and a half years for the guilty plea, was within the permissible range.

5. Mustafa performed a key role in the final operation. His claimed ignorance was not credible. Although he had no previous offending and there was no proven financial motive or pressure on him, a three-year sentence before personal mitigation was not excessive. The judge was entitled to allow only limited mitigation for delay, having regard in particular to R v Timpson [2023] EWCA Crim 453, because the delay principally arose from the scale of the investigation and the need for a substantial, complex trial. The six-month reduction for personal mitigation was adequate.

• Court of Appeal (Criminal Division) — dismissed both appeals against sentence.
• Crown Court at Bournemouth — HHJ Mousley KC sentenced Kadar to four and a half years’ imprisonment following his guilty plea, and Mustafa to two and a half years’ imprisonment following conviction at trial.