R v Ashirie Smith

Sturdy shoes deliberately selected for use as a weapon can fall within paragraph 4 of Schedule 21 to the Sentencing Act 2020. However, a higher murder starting point cannot fairly be imposed where that basis was not put to the offender and explored at trial and sentence. On an unduly lenient sentence reference, the appellate court respects the first-instance judge’s assessment. Intervention requires a sentence outside the reasonably open range and gross error. A generous mitigation reduction does not, by itself, meet that threshold.

This was a reference by the Solicitor General under section 36 of the Criminal Justice Act 1988 against a sentence imposed by the Crown Court at Leicester. The respondent had been convicted of murder committed in custody and had pleaded guilty to an earlier aggravated burglary.

The Crown Court imposed custody for life, with a minimum term of 17 years and 6 months. The reference argued that the murder should have attracted the 25-year starting point applicable where a weapon was taken to the scene, rather than the 15-year starting point applied by the judge. It also challenged the extent of the aggravation uplift and the reductions made for the aggravated burglary.

The central issues were whether sturdy footwear could constitute a weapon for the higher murder starting point, whether fairness permitted that issue to be raised on the reference, and whether the sentence was unduly lenient.

The Court granted leave to refer the sentence but refused the Reference. The sentence therefore remained custody for life with a minimum term of 17 years and 6 months.

1. The Court considered the meaning of weapon in paragraph 4 of Schedule 21 to the Sentencing Act 2020. It relied on R v Deeprose & Ors [2024] EWCA Crim 1431; [2025] 1 WLR 1190, where the Court of Appeal had concluded that an other weapon could extend beyond conventional weapons. The Court agreed that sturdy shoes deliberately intended for use as a weapon could amount to taking a weapon to the scene.

2. That legal conclusion did not justify increasing the starting point in this case. The distinction between paragraph 4 and paragraph 5 involved a ten-year difference. As a matter of fairness, the prosecution had to confront the issue at trial and sentence, put it fairly to the offender, and explore the relevant facts sufficiently for reliable findings to be made. The change from slip-on footwear to sturdy lace-up shoes had been relied on as evidence of planning, but the prosecution had not advanced or explored the case on the basis that the shoes were a weapon. The Court therefore declined to allow the first ground of the Reference.

3. The Court accepted that another judge might have increased the sentence further for aggravating factors before considering mitigation. That did not make the sentence lenient, still less unduly lenient.

4. As to the aggravated burglary, the sentencing judge was entitled to reduce the starting point for age, to allow 25 per cent credit for the guilty plea, and to adjust the sentence because it formed part of a life sentence minimum term rather than a determinate sentence. The further two-year reduction for personal mitigation was very generous, but it was not a gross error.

   On a sentence reference, the first-instance judge is particularly well placed to assess competing factors. A sentence is unduly lenient only if it falls outside the range which that judge could reasonably consider appropriate. The Reference is directed to cases involving gross error. Those principles were not satisfied.

1. Court of Appeal (Criminal Division): On 17 October 2025, granted leave for the Attorney General’s Reference but refused the Reference.
2. Crown Court at Leicester: On 29 May 2025, HHJ Spencer KC imposed custody for life for murder with a minimum term of 17 years and 6 months, taking the aggravated burglary and part of the unexpired firearm sentence into account.