R v Mokter Hossain

An earlier sentencing decision that was expressly not intended as a guideline case does not fix a general starting point for later offending. Its suggested starting point must be read in the light of the scale and facts then considered. A changed sentencing climate, including the increased importance of deterrence, may justify a materially higher starting point for a larger and more harmful commercial people-smuggling conspiracy, within the statutory maximum. Relevant distinctions include duration, number of migrants and events, financial gain, culpability and harm. A co-defendant’s sentence is a poor disparity comparator where it rested on a materially narrower accepted basis of plea. A renewed application for leave to appeal against sentence fails where the sentencing judge’s starting point was open and the sentence was not arguably manifestly excessive.

The applicant pleaded guilty to conspiracy to facilitate illegal immigration and was sentenced at the Crown Court at Snaresbrook to ten years six months’ imprisonment after his basis of plea was rejected following a Newton hearing. He renewed his application for leave to appeal against sentence after leave was refused by a single judge.

He argued that the twelve-year starting point was excessive by reference to R v Ali [2018] EWCA Crim 405, and that his sentence was disproportionate compared with that imposed on his co-accused, considered by the court in R v Ullah [2022] EWCA Crim 777. The central issue was whether either ground disclosed an arguable basis for concluding that the sentence was manifestly excessive.

The court declined to adjourn the listed application because legal representation could not assist in light of the merits decision.

1. Starting point. The court treated R v Ali [2018] EWCA Crim 405 as expressly non-guideline and emphasised that its suggested ten-year starting point for genuine organisers was fact-specific and tied to the scale of offending considered there. It therefore did not prescribe a general starting point for later cases.
2. Application to the offending. The sentencing climate had changed since R v Ali, following the small boats crisis and the escalation of human-smuggling operations. The importance of deterrence had consequently increased. The present conspiracy was materially more serious: it lasted almost three and a half years, involved at least 20 smuggling events and 129 migrants, and generated substantial financial gain. The judge was entitled to regard the culpability and harm as considerably greater than in R v Ali. Her twelve-year starting point was within the fourteen-year statutory maximum and was supported by reasons open to her.
3. Disparity. The sentence imposed on the co-accused could not provide a meaningful comparison. It followed an accepted basis of plea limiting his role to liaison over a few days in one event involving fewer than ten migrants, under the applicant’s direction, with financial gain accepted. The disparity ground therefore had no merit.
4. Disposition. There was no complaint about the deductions for mitigation or the reduced guilty-plea credit after the unsuccessful Newton hearing. The renewed application for leave to appeal against sentence was refused.

• Court of Appeal (Criminal Division) — On 16 May 2024, refused the renewed application for leave to appeal against sentence.
• Single judge — Refused leave, which the applicant renewed.
• Crown Court at Snaresbrook — On 23 June 2023, HHJ Canavan sentenced the applicant to ten years six months’ imprisonment after rejecting his basis of plea following a Newton hearing.