R v Shwehe Ahmed

On 16 May 2025, in the Crown Court at Wood Green, the applicant Shwehe Ahmed (then aged 30) pleaded guilty to offences of robbery (count 1), affray (count 5) and having an offensive weapon (count 6). Other counts were subsequently ordered to lie on the file.

On 18 July 2025, the applicant was sentenced by His Honour Judge Godfrey to a total of 15 months' imprisonment, made up as follows: 12 months for the robbery; a consecutive term of three months for the affray; and a concurrent term of six weeks for having an offensive weapon.

The applicant's application for leave to appeal against sentence has been referred to the full court by the Registrar.

At around 4 pm on 16 February 2025 a security guard at a Sainsbury's store who recognised the applicant tried to stop him from entering the store on Kilburn High Road. The applicant evaded the security guard and staff could see that he had a sharp object in his hand. The applicant was aggressive to staff. He swore at them and made lunging movements towards them. The staff tried multiple times to get the applicant to leave the store. Eventually he left some ten minutes after he had entered.

In a victim personal statement the security guard, Mr Jalal, reported that he had found the incident scary because he felt that the applicant was trying to attack him with a sharp item. Another security guard, Mr Ouzenadgh, reported that he found the incident incredibly stressful. He could not relax and was finding it hard to speak to his own children, such was the effect upon him.

At 4.15 pm on the same day, the applicant entered a Boots store on Kilburn High Road. He walked to the back of the store, where he began to pick up valuable items. A staff member began to film him as he recognised the applicant from previous occasions. The applicant ignored requests for him to leave the store and was seen to have a sharp object in his hand which was thought to be a screwdriver. The applicant picked up some electrical goods and walked out of the store.

Police officers attended shortly afterwards. It was discovered that the applicant had taken two hairdryers from the store. Thereafter, he was spotted running down Kilburn High Road where he was detained by police officers. He was in possession of two boxes containing hairdryers, one of which still had the security tag attached to it. The applicant was arrested and searched by police officers who found a screwdriver in his possession. In interview he made admissions to the offences, stating that he had been homeless and wanted money for cigarettes. He may also have said that he wanted money for food, although that does not appear from the summary of the interview. However, he did say that to the author of the pre-sentence report.

The applicant was of previous good character.

A pre-sentence was prepared. The applicant denied aspects of the offending and denied carrying the screwdriver for protection, as he had asserted in police interview, but rather said that he used it to removed security tags from items he wished to steal. It was noted that he had not considered alternatives to stealing, such as contacting Migrant Help or similar charities.

He reported that he had arrived in the United Kingdom via a small boat on 12 December 2024. He denied having asked to be deported in his police interview. He stated that he came to the UK from Iraq for humanitarian reasons, because his life was under threat there. He said that he had made an asylum application on arrival and had been placed in a hotel in London by the Home Office, but could not recall the name, address or area of the hotel. He reported being told to leave the hotel after four days and stated that he had been homeless thereafter. He said that he had made contact with Migrant Help, but they had not assisted him.

The information held by the Probation Service was that the applicant would not have been subject to a formal assessment by the Home Office and so would have no legal status in the UK, although it does not appear that that conclusion was confirmed by other records.

The judge also had before him a letter from the applicant expressing is remorse.

The judge said that he would treat the robbery offence as the lead offence. He said that there was an obvious inference from the way in which the applicant was holding the screwdriver, with the sharp end pointing out of his clenched fist; that showed that the applicant sought to put whoever he might encounter, as he tried to steal from the shop, including the security guards, in fear of violence. The applicant was holding the screwdriver in that way in order to demonstrate that he had a sharp-edged weapon. The judge said that the production of this weapon to threaten violence in order to steal placed the offence within the medium culpability factor, but that it fell only just short of the high culpability factor which would have applied if there had been production of a bladed article. The harm caused fell into the lowest category. It was a category 3B offence, with a starting point of two years' imprisonment and a range of between one and four years.

The judge then said this:

When he dealt with the affray, the judge said that the applicant was holding the screwdriver in the same manner. On that occasion he was verbally aggressive and threatening and had made lunging movements towards the staff. The incident lasted for approximately ten minutes. In the course of it a female shopper had to pull her child away from the applicant. The judge said that the threats of violence with a weapon meant that this offence was within culpability B, with harm falling into the upper end of category 3. For a category B3 offence, the starting point was a high level community order with a range of up to 36 weeks' imprisonment.

Finally, in relation to having an offensive weapon in a public place, the judge said that the sentence would concurrent, having regard to the totality principle, as the possession of the screwdriver had been taken into account when arriving at the sentences for the other offences.

Turning to mitigation, the judge noted that it was submitted on behalf of the applicant that he had suffered trauma and psychological damage in connection with his life in Iraq and his subsequent experience as a migrant and asylum seeker. He had been in this country for only a matter of weeks at the time of the commission of these offences and was homeless. The judge said in terms that he was not in a position to make findings about what had led the applicant to leave Iraq and seek asylum here, but he had arrived illegally and had proceeded to commit the offences in circumstances of destitution. That amounted to little mitigation. The judge took into account the applicant's lack of any previous convictions; an injury which he had suffered while in France which continued to have a significant detrimental effect upon him; and the fact that this would be his first experience of custody, which would be particularly difficult for him as a foreign national.

Having taken those matters into account, the judge gave credit of 25 per cent for the applicant's guilty plea. He said that the appropriate sentence for the robbery would have been 16 months' imprisonment after trial, which he reduced to 12 months for the guilty plea; for the affray, after trial the sentence would have been six months' imprisonment, which he reduced to four and a half months for the guilty plea. He then made a further reduction for the principle of totality, which took the sentence down to three months, which he ordered to run consecutively to the sentence of 12 months for the robbery. The judge said that it was not appropriate for the sentence to be suspended. He noted that the applicant had already served a very considerable part of it on remand.

On behalf of the applicant it is submitted by Mr Wainwright and Miss Thomas-Davis: first, that it was an error of principle for the judge to find as an aggravating feature that the applicant was illegally in the country; second, that it was an error of principle to order the sentences to run consecutively as opposed to concurrently for counts which arose in the same incident; and finally, that the errors resulted in a total sentence which was manifestly excessive.

We have been greatly assisted not only by the written and oral submissions on behalf of the applicant made by Mr Wainwright and Miss Thomas-Davis, but also by the helpful and comprehensive written submissions of Mr Peter Ratcliff, Treasury counsel, who was instructed at short notice in order to assist the court on the first proposed ground of appeal.

We would accept that there may be some offences and some circumstances where a defendant's immigration status may be relevant as an aggravating factor. An example may be if a defendant enters the country illegally for the purpose of committing offences, although even in those circumstances it may be that more conventional aggravating factors, such as a significant element of planning, would be sufficient to meet the justice of the case. However, the judge's approach appears to have been that the fact that a defendant is in the country illegally – or perhaps more accurately has entered the country illegally – is an aggravating factor of general application in every case where that is the position. While there may be an argument that that ought to be the general approach of sentencing courts, it would raise significant questions, not only of general sentencing policy and principle, but also as to the practical effect if the Crown Court is required to investigate a defendant's immigration status, including whether they have a valid claim to be granted asylum, in every case where such a question might arise. That would be necessary because any aggravation arising out of a defendant's illegal entry, unrelated to the particular facts of the offence, would be likely to be substantially mitigated – and perhaps eliminated – if it turned out that the defendant had a valid claim, or even an arguable claim, to asylum because of a well-founded fear of persecution in their home country. The Crown Court is not well placed to investigate such questions which are the responsibility of the Tribunal system. They would very substantially complicate and prolong the sentencing process. Indeed, in the present case the judge rightly said that he was not in a position to make findings about what had led the applicant to leave his home country. Such questions are best considered, if they need to be considered at all, by the Sentencing Council so that proper account could be taken not only of the wide ranging policy questions which would arise and the widely differing scenarios in which such question might arise, but also of the resources available to the Crown Court to investigate these matters. Potentially, they would have a very significant impact on the efficient conduct of the business of the Crown Court, with the danger that any sentencing hearing concerning an asylum seeker would need to be concerned with the validity of their asylum claim.

It is sufficient for the purpose of this case to say that the judge did not identify any specific feature of the applicant's offending which made it appropriate to treat his illegal entry as an aggravating factor in this particular case; and that to the extent that he treated the applicant's illegal entry into the country as an aggravating feature of general application, he was wrong to do so. If the judge's approach had been to treat the applicant as having committed an immigration offence in circumstances where he had not been charged or convicted of any offence, and to treat that as an aggravating factor, that would, in our judgment, have been wrong in principle, although we do not read that as having been the judge's approach in this case.

Mr Wainwright submits that because the judge treated the applicant's illegal arrival as an aggravating factor and was wrong to do so, this court should mark that error by making a reduction in sentence, irrespective of whether the sentence arrived at by the judge was manifestly excessive. He referred to R v Lounds [2014] 1 Cr App R(S) 75 and the earlier case of R v Harper (1968) 52 Cr App R 21, where this court had regarded it as appropriate to make some reduction in the sentence as a result of what was described in Lounds as "a clear breach of a fundamental tenet of sentencing". Mr Wainwright submitted that this is such a case.

While it appears that there have been some occasions, exemplified by the cases referred to, where this court has regarded that as an appropriate course, such cases will always be fact specific. In our judgment, the case with which we are concerned is not such a case. The question is not whether anything said by the judge in the course of his sentencing remarks was wrong in principle, but whether the overall sentence at which he arrived was either wrong in principle or manifestly excessive. That is the question which we have to consider.

For that purpose it is not significant whether the sentences imposed were consecutive or concurrent. As these were two separate incidents, we see nothing wrong in principle in the imposition of consecutive sentences. Had concurrent sentences been imposed, with some increase in the sentence for the lead offence of robbery, that would also have been an approach which we would not have criticised.

As to the robbery, which was the most serious of the applicant's offences, there is no challenge to the judge's categorisation of this offence as falling within category B3, with a starting point of two years' custody. The judge was entitled to find, as he did, that the offending was only just short of falling within the high culpability category and therefore would have been entitled to increase the starting point within the B3 range, which goes up as far as four years' custody. The judge made some, albeit limited, allowance by way of mitigation for the fact that the offences were committed in circumstance of destitution; for the fact that the applicant had no previous convictions; and for the consequences of the injury which the applicant had received to his arm. We agree that the mitigation was limited.

While destitution may provide mitigation, the extent to which it does so must depend on the circumstances of the case. Clearly, it will be a more significant mitigating factor in a case such as shoplifting, where no violence is used, than it is in a case of robbery, where the offence is one of violence, actual or threatened. These are matters for the judgment of the sentencing court.

Balancing all of those factors, the judge arrived at a sentence of 16 months' imprisonment for the robbery, before credit for the guilty plea. He did not explain how much, if at all, he had increased the sentence as a result of the applicant's immigration status; but if he did increase the sentence to take account of this, it is apparent that he did so to a very limited extent. It is apparent also that if he did increase the sentence above the two year starting point to take account of his view that the production of the weapon to threaten violence only just fell short of the high culpability factor, again he did so only to a very limited extent. Taking account of that last factor, we do not consider that a sentence of 16 months' imprisonment before credit for the guilty plea can be regarded as manifestly excessive.

Similarly, the judge was right to place the offence of affray within category B3. He was also entitled to say that the offending fell at the upper end of category B3. That means that a sentence up to 36 weeks' imprisonment (nine months) would have been appropriate before mitigation and credit for the guilty plea. The mitigation was limited for the same reasons as in relation to the robbery offence. The judge was therefore entitled to say that the appropriate sentence after trial would have been six months' imprisonment. The credit for the guilty plea to which the applicant was entitled was 25 per cent. The judge made an appropriate reduction to both sentences and reduced the overall sentence further to take account of totality, arriving at his total sentence of 15 months' imprisonment.

In our judgment, having regard to the violent and threatening nature of the offences, which involved a weapon which was intended to and did intimidate, and the limited mitigation available to the applicant, this overall sentence cannot be regarded as manifestly excessive.

We should add that it has rightly not been suggested that the sentence ought to have been suspended. That was considered and rejected by the judge. In view of the content of the pre-sentence report, that would have been a difficult submission to advance.

For these reasons the application for leave to appeal against the sentence is refused.