R v Ujeza Kurmekaj

Serious conspiracies to facilitate breaches of immigration law ordinarily require deterrent custodial sentences. Sentencing must reflect the cumulative aggravation arising from repetition, duration, commercial motivation, organisation, a significant role, and the number of migrants involved.

An offender’s prior exploitation may nevertheless establish a particular vulnerability to persuasion into later offending. It may justify greater mitigation even where the evidence does not establish duress or modern slavery in the offence being sentenced. A sentence imposed without reports capable of properly informing that mitigation may be manifestly excessive. An erroneous judicial indication about release does not bind the statutory release process, which must be applied correctly under the Criminal Justice Act 2003.

The applicant pleaded guilty in the Crown Court at Oxford to conspiracy to facilitate a breach of United Kingdom immigration law, contrary to section 1(1) of the Criminal Law Act 1977. She was sentenced to seven years and six months’ imprisonment after a 25 per cent reduction for her guilty plea.

The conspiracy involved organising and arranging the Channel transit of at least 50 migrants. The applicant had previously been identified through the National Referral Mechanism as a victim of modern slavery. She appealed on the grounds that the sentencing judge had insufficiently recognised her mitigation, selected an excessive pre-credit sentence, and imposed a manifestly excessive sentence. The single judge obtained a pre-appeal report, and the applicant obtained psychological evidence, before the full court considered sentence.

1. The appeal against sentence was allowed. The court quashed the sentence of seven years and six months’ imprisonment and substituted six years’ imprisonment. This reflected an eight-year sentence before the 25 per cent credit for the guilty plea.
2. The release indication was incorrect but immaterial to the appeal. The sentence was a fixed-term sentence under section 237 of the Criminal Justice Act 2003. The two-thirds release condition in section 244ZA(4) did not apply because the offence was not listed in Schedule 15 and, when the conspiracy was entered, did not carry life imprisonment. The applicant would therefore be considered for release after serving one half of the sentence. A sentencing judge’s erroneous indication about time to be served is not binding; the applicable release provisions will be applied correctly.
3. The offending was exceptionally serious. The court applied the aggravating-features framework in R v Le and R v Stark [1999] 1 Cr App R (S) 422. The conspiracy was repeated over months, commercially motivated, highly organised, concerned strangers and involved many migrants. The applicant had a significant role near the upper end of that category. The judge was entitled to make those factual findings. A sentence exceeding ten years before personal mitigation would have been appropriate for that role and combination of aggravating features.
4. Greater mitigation was nevertheless required. The further reports did not establish that the applicant had been coerced, under duress, or a victim of modern slavery in the conspiracy itself. Her autonomy and sustained participation supported the judge’s findings. However, her traumatic history, vulnerability, and recent experience of exploitation made her particularly vulnerable to persuasion into the conspiracy. The preferable course was to obtain a pre-sentence report and potentially psychological evidence before sentence. Had those materials been available, a greater reduction for mitigation would have been made. The ten-year pre-credit sentence was therefore manifestly excessive.

• Court of Appeal (Criminal Division) — allowed the appeal against sentence, quashed the seven-year-six-month sentence, and substituted six years’ imprisonment: [2024] EWCA Crim 1666.
• Crown Court at Oxford — on 3 November 2023, the applicant pleaded guilty to conspiracy contrary to section 1(1) of the Criminal Law Act 1977; on 17 November 2023, His Honour Judge Michael Gledhill KC imposed seven years and six months’ imprisonment. No citation was stated.