Anonymized Summary of Opinion by Judge Males

Factual and Procedural Background

This is an appeal application concerning sentence. On 16 May 2025, the Appellant pleaded guilty at the Crown Court at The City to robbery (count 1), affray (count 5) and having an offensive weapon (count 6); other counts were ordered to lie on the file. On 18 July 2025 Judge Godfrey sentenced the Appellant to a total of 15 months' imprisonment: 12 months for the robbery, a consecutive term of three months for the affray, and a concurrent term of six weeks for the offensive-weapon offence. The Appellant's application for leave to appeal against sentence has been referred to the full court by the Registrar.

The factual background as contained in the sentencing materials is as follows. On 16 February 2025 the Appellant entered Company A where a security guard recognised him; staff observed a sharp object in his hand, he was aggressive, made lunging movements and remained in the store for about ten minutes. Later the same day the Appellant entered Company B, selected valuable items at the back of the store and was filmed by staff; he left with two hairdryers. Police stopped and detained him shortly thereafter; two boxed hairdryers were found and a screwdriver was recovered on search. In interview the Appellant made admissions and explained his circumstances, including homelessness and a recent arrival to the country by small boat on 12 December 2024. The Probation Service recorded that the Appellant would not have been subject to a formal Home Office assessment and so would have had no legal status in the UK (although that point does not appear to have been confirmed by other records). The sentencing judge had a victim personal statement from Security Guard A and Security Guard B, a pre-sentence report and a letter of remorse from the Appellant. The Appellant was of previous good character.

Legal Issues Presented

1. Whether it was an error of principle for the sentencing judge to treat the Appellant's illegal immigration status (having entered the country clandestinely) as an aggravating feature when passing sentence.
2. Whether it was an error of principle to order consecutive sentences for offences arising out of the same incident rather than concurrent terms.
3. Whether, taking those alleged errors together, the total sentence of 15 months' imprisonment was manifestly excessive.

Arguments of the Parties

Appellant's Arguments

• The sentencing judge erred in principle by treating the Appellant's illegal presence in the country as an aggravating factor.
• The judge erred in principle by ordering consecutive sentences for counts arising in the same incident rather than making them concurrent.
• As a result of those errors, the total sentence imposed was manifestly excessive and a reduction should be made.

Respondent / Crown

The court received written and oral submissions from Treasury counsel (Attorney Ratcliff) who assisted on the first proposed ground of appeal. The opinion does not provide a detailed account of the respondent's full submissions on every point.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Lounds [2014] 1 Cr App R(S) 75	Example of the court reducing sentence where there has been a clear breach of a fundamental tenet of sentencing	The Appellant's counsel relied on Lounds to argue for a reduction because of the judge's treatment of immigration status. The court acknowledged Lounds as an example of such intervention but held the present case was not one where a reduction on that basis was appropriate.
R v Harper (1968) 52 Cr App R 21	Earlier authority cited as another example where sentence was reduced for breach of a fundamental sentencing tenet	Referred to in submissions; the court observed such cases are fact-specific and concluded the present circumstances did not warrant the approach taken in those authorities.

Court's Reasoning and Analysis

The court undertook a step-by-step review of the sentencing exercise and the grounds of appeal. It first reviewed the factual findings and the sentencing judge's approach to culpability and harm:

• Robbery: The sentencing judge treated robbery as the lead offence. The judge found the Appellant had displayed the screwdriver with the sharp end projecting from a clenched fist so as to create fear of violence and to threaten or intimidate in order to steal. This led the judge to classify the offending within the medium culpability band, just short of the high culpability band applicable if a bladed article had been produced. The judge placed the harm at the lowest category for that band (category B3) with a starting point of two years' custody and a range of one to four years.
• Affray: The judge concluded the Appellant had been verbally aggressive, threatening and made lunging movements while holding the screwdriver; the incident lasted about ten minutes and disturbed bystanders (including a female shopper and child). He placed this offence also in culpability B with harm in the upper end of category 3 (B3), where a sentence up to 36 weeks could be appropriate before mitigation.
• Offensive weapon: The judge ordered the sentence for this offence to run concurrently, applying the totality principle because possession had already been taken into account in sentencing for the other offences.

The court then analysed mitigation and credit:

• The sentencing judge took limited mitigation into account: the Appellant's lack of previous convictions, an existing arm injury from an earlier incident, his apparent destitution and that this would be his first experience of custody as a foreign national. The judge explicitly stated he was not in a position to make findings about the reasons for the Appellant's departure from his home country or the merits of any asylum claim.
• The judge gave the Appellant 25% credit for his guilty plea, explaining the pre-credit sentences that would have been appropriate (16 months for robbery and six months for affray after trial) and then reducing for the guilty plea and further reducing for totality to reach the overall 15 months' custody imposed.

On the principal legal contention—that treating illegal entry or illegal presence as an aggravating factor was an error in principle—the court accepted that there may be some circumstances where immigration status is relevant to sentencing (for example where illegal entry was undertaken for the purpose of committing offences). However, the court emphasised that treating illegal entry as an aggravating factor of general application in every case raises significant policy and practical concerns. The Crown Court is not the appropriate forum to investigate the validity of asylum claims or the reasons for unlawful entry, and doing so would complicate and prolong sentencing hearings.

The court found the sentencing judge had not identified any specific feature of the Appellant's offending that made illegal entry relevant as an aggravating factor in this case. To the extent that the judge treated illegal entry as an aggravating factor of general application, that approach was wrong in principle. The court noted, however, that it did not read the judge as having treated the Appellant as having committed an immigration offence which he had not been charged with; rather, the problem lay in treating immigration status as a general aggravating feature without a clear link to the offending.

Turning to the consequences of that error, the court refused to treat it as automatically requiring a reduction in sentence. It considered whether the overall sentence was wrong in principle or manifestly excessive. The court upheld the judge's categorisations and starting points for both robbery and affray, accepted that the mitigation was limited, and observed that any increase in sentence attributable to the judge's reference to immigration status, if it occurred, was very limited. Balancing culpability, harm, mitigation and credit for the guilty plea, the appellate court concluded the total sentence could not be regarded as manifestly excessive.

The court also held there was nothing wrong in principle with imposing consecutive sentences in this case because the offences constituted two separate incidents; it further observed that concurrent sentences with a suitably increased lead offence sentence would also have been an acceptable approach.

Holding and Implications

The application for leave to appeal against sentence is REFUSED.

Implications:

• The direct effect is that the 15-month custodial sentence imposed by Judge Godfrey is upheld.
• The court affirmed that treating a defendant's illegal entry or immigration status as an aggravating factor is not, without more, appropriate in every case; any aggravation linked to immigration status must be tied to the specific facts of the offending. Sentencing courts are generally ill-placed to investigate asylum or immigration claims and the policy implications of treating immigration status as an aggravating factor are matters for the Sentencing Council rather than individual sentencing courts.
• The opinion did not purport to create a new binding precedent changing sentencing law; rather it applied established sentencing principles and declined to reduce the sentence on the facts of this case. No broader, novel legal rule was established by this decision beyond the court's stated caution about the routine use of immigration status as aggravation.

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Note: All names, company names and locations in this summary have been anonymized. The summary faithfully reflects only the information contained in the provided opinion and does not add or infer facts beyond that document.