R v Akbat Arbati

For the offence of attempting knowingly to arrive in the United Kingdom without valid entry clearance, the starting point before aggravation, mitigation and credit for plea is 12 months’ imprisonment. A materially serious immigration and offending history may justify an increase from that starting point. The increase must nevertheless remain proportionate to the offending and the available aggravating features. A sentence that moves from the 12-month starting point to three years before credit for an early guilty plea may be manifestly excessive.

The appellant pleaded guilty at the Magistrates’ Court to attempting knowingly to arrive in the United Kingdom without valid entry clearance. He was committed for sentence and, on 6 December 2023, the Crown Court at Canterbury imposed two years’ imprisonment.

He had previously entered the United Kingdom without leave, had been convicted of attempted rape, and had been the subject of immigration and asylum decisions. After leaving voluntarily for Turkey, he returned to the United Kingdom within seven months in an overcrowded small boat crossing from France.

He appealed against sentence, contending that it was manifestly excessive when measured against the guidance in R v Ginar [2023] EWCA Crim 1121.

1. The appeal was allowed. The sentence of two years’ imprisonment was reduced to 16 months’ imprisonment.

2. The court applied the sentencing guidance in R v Ginar [2023] EWCA Crim 1121, [2024] 1 WLR 1264. In the absence of a Sentencing Council guideline, the appropriate starting point before aggravating and mitigating features and credit for plea is 12 months’ imprisonment. Relevant aggravating features may include planning beyond that inherent in the offence and a history of unsuccessful applications.

3. The judge was entitled to increase the sentence above that starting point. The appellant’s prior entry without leave, attempted-rape conviction, deportation history, dismissed asylum claim, voluntary departure and return within seven months materially aggravated the offence.

4. However, a sentence of three years before credit for plea was disproportionate. A proportionate sentence before credit was two years. Applying the agreed one-third credit for the early guilty plea produced a sentence of 16 months.

5. The court noted that a separate and more serious immigration offence had not been charged. The appellant could be sentenced only for the offence of which he had been convicted.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and reduced the sentence to 16 months’ imprisonment.

• Crown Court at Canterbury: On 6 December 2023, sentenced the appellant to two years’ imprisonment.

• Magistrates’ Court: On 12 September 2023, the appellant pleaded guilty and was committed for sentence.