Kurmekaj, R. v

Factual and Procedural Background

On 3 November 2023, in the Crown Court at Oxford, the Applicant pleaded guilty to conspiracy to facilitate the commission of a breach of UK immigration law by a non-UK national, contrary to section 1(1) of the Criminal Law Act 1977. On 17 November 2023, the Applicant was sentenced to 7 years and 6 months' imprisonment by His Honour Judge Gledhill KC. The Applicant was informed that she would likely serve two-thirds of this sentence before being eligible for release; however, due to the offence not being listed in Schedule 15 of the Criminal Justice Act 2003 and the date the conspiracy was entered into, the Applicant is eligible for release after serving half the sentence.

The Applicant, an Albanian national, arrived in the UK on 1 March 2022, claiming asylum and was placed in a hotel. She later reported exploitation and was identified as a victim of modern slavery by the National Referral Mechanism (NRM). Despite this, she committed the offence while her case was under consideration.

Evidence against the Applicant primarily came from one mobile phone seized from her rented room in Banbury, containing messages and images related to people smuggling over several months. Surveillance evidence showed she had freedom of movement, access to vehicles, large sums of money, and appeared to have a supervisory role at a car wash business.

On 19 October 2022, the Applicant was arrested at her rented room where four phones, £4,000 in cash, and 10 grams of cocaine were seized. The Applicant made a prepared statement admitting the money was hers but denied involvement in criminality and declined to comment on people smuggling allegations.

The phone contents revealed extensive communication related to organising Channel crossings for migrants, including photographs, maps, and transaction records. The Applicant was referenced as a key figure in the smuggling operations, coordinating logistics and payments.

The Applicant had no previous convictions and was sentenced without a pre-sentence report. The Judge noted the Applicant’s significant role in the conspiracy, her awareness of risks to migrants, and motivation by financial gain. The maximum sentence applicable was 14 years, as the increase to life imprisonment applied only to offences committed after 28 June 2022.

The Applicant applied for leave to appeal against the sentence, contending that the Judge failed to properly consider mitigation, erred in setting a minimum sentence of 10 years before credit for the guilty plea, and that the sentence was manifestly excessive. The single judge referred the application to the full court and ordered a pre-appeal report and a psychological report, both of which were considered by the court.

Legal Issues Presented

1. Whether the sentencing Judge failed to properly take into account the Applicant's mitigation.
2. Whether the minimum sentence of 10 years' imprisonment before credit for guilty plea was appropriate.
3. Whether the sentence imposed was manifestly excessive.
4. Whether the Applicant’s status as a victim of modern slavery impacted culpability and sentencing.

Arguments of the Parties

Appellant's Arguments

• The Applicant was vulnerable and coerced into participation by the same criminal organisation that had previously trafficked her.
• The Applicant did not make significant financial gain beyond repayment of an inflated debt.
• The Applicant’s involvement was not enthusiastic or motivated by money, contrary to the Judge’s characterization.
• The cash found was not personal wealth but funds to be passed up the criminal chain.
• The Applicant had limited freedom to leave the conspiracy and access to vehicles or wealth was not hers to freely use.
• The Applicant accepted she played a role to minimise risk to herself and her daughter, not out of volition.
• The Applicant’s role was significant but below a leading role, referencing a recent case where a leading role attracted a higher sentence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the seriousness of the immigration offence, emphasizing the need for a deterrent sentence as established by precedent. The aggravating features identified in R v Le and R v Stark were largely present, justifying a sentence exceeding 10 years before credit for the guilty plea.

While the Applicant’s traumatic background, vulnerability, and status as a victim of modern slavery were relevant mitigating factors, the court found that the Applicant exercised considerable autonomy during the offending period. Evidence showed freedom of movement, control over finances, and active participation beyond mere translation, undermining claims that she was coerced or under duress in her criminal role.

The court considered the pre-appeal and psychological reports but concluded these did not warrant overturning the factual findings of the sentencing Judge. However, the reports indicated the Applicant’s vulnerability and persuasive coercion to participate, which merited a greater reduction in sentence than originally applied.

Consequently, the court found the original sentence manifestly excessive and substituted a reduced sentence reflecting the totality of mitigation and culpability.

Holding and Implications

The court granted leave to appeal against sentence and QUASHED the original sentence of 7 years and 6 months’ imprisonment, substituting a sentence of 6 years’ imprisonment (equivalent to 8 years before credit for guilty plea).

This decision directly affects the Applicant by reducing her custodial term but does not establish new legal precedent. The ruling underscores the importance of thorough consideration of mitigation, including vulnerability and coercion, in sentencing for complex offences involving victims of modern slavery who become involved in criminal activity.