R v Ashirie Smith [2025] EWCA Crim 1421

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[2025] EWCA Crim 1421

IN THE COURT OF APPEAL

Venue Royal Courts of Justice

Date Friday 17 October 2025

Strand

London

WC2A 2LL

Before

LORD JUSTICE DINGEMANS

Senior President of Tribunals

MR JUSTICE SAINI

HER HONOUR JUDGE LUCKING KC

(Sitting as a Judge of the CACD)

Reference by the Attorney General under s.36 Criminal Justice Act 1988

Between

REXCrown

Between

ASHIRIE SMITH

__________

Computer Aided Transcript of Epiq Europe Ltd,

Lower Ground, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_________

MR P JARVIS KC appeared for Solicitor General

MR M DUCK KC appeared for Offender

________

JUDGMENT

(Judgment Approved)

[1]This is the hearing of an application by His Majesty's Solicitor General for leave to refer a sentence which the Solicitor General considers to be unduly lenient. The sentence was passed on 29 May 2025 in the Crown Court at Leicester by HHJ Spencer KC who sentenced the respondent, Mr Ashirie Smith (a 19-year-old man), to custody for life with a minimum term of 17 years and 6 months for an offence of murder, with no separate penalty imposed for an offence of aggravated burglary, because that offence had, as we will explain later, been taken into account in the minimum term of 17 years and 6 months.

[2]Mr Smith had been aged 17 years 3 months when he committed the offence of aggravated burglary, and 18 years 8 months at the time of the murder which had occurred in HMP Fosse Way.

[3]On the same occasion, at the same trial, Thierry Robinson (Mr Smith's co-defendant) was sentenced to 11 years' imprisonment for manslaughter, having been acquitted of murder but convicted of manslaughter.

[4]It is submitted on behalf of the Solicitor General that the sentence was unduly lenient because first, the judge was wrong to take a starting point for the minimum term of 15 years for murder and should have taken a starting point of 25 years because Mr Smith had taken a weapon to the scene, namely a shod foot having changed his footwear. Secondly, the judge should have gone up further than the notional 18 years for aggravating factors, before taking account of mitigation, even if the starting point was 15 years. Thirdly, as to the aggravated burglary, the judge was right to take a starting point of 12 years but he was wrong to have reduced the sentence to the extent that he did.

[5]It is submitted on behalf of Mr Smith that 15 years was the appropriate starting point for the minimum term for the murder, that the judge had regard to all relevant and aggravating and mitigating factors when coming to that sentence, and the judge was right to give credit for the plea in relation to the aggravated burglary. It was also necessary to reflect mitigation. The sentence overall was not unduly lenient because it is a life sentence, he is a very young man, he was beginning to show some insight, albeit late, into his offending and there were issues of totality.

[6]We will grant leave for this Reference because we consider that the issue of the starting point for this murder merits consideration by the Court. Factual circumstances

[7]Dealing first with the aggravated burglary, at 5.30 am on 1 March 2023 Mr Bolbol was asleep in his house where he lived with other students at De Montfort University in Leicester. He was the only person in the address. Four men broke into the house (one of these was Mr Smith who was aged, as we have indicated, 17 years 3 months). They approached him in his bedroom, threatened him with a machete and a knife and Mr Bolbol thought, understandably, he was going to die. The men repeatedly threatened to kill him unless he told them where the money was. One of them was told to boil a kettle and then bring it to him. He believed he was about to be burned, disfigured and tortured. The men made him unlock his mobile telephone, then go into his bank accounts but in the event they did not make him transfer any money to anyone else. They did make him perform a factory reset on his mobile telephone and laptop. Two of the men went to search the house. They ransacked rooms before returning to where the other two were guarding Mr Bolbol. All four men then assaulted him by punching, kicking and jumping on him. One of them recorded a clip of the two others stamping on him and Mr Smith was one of the men recorded stamping. Mr Bolbol tried to protect himself from the blows. The men continued to tell him to hand over money.

[8]After about 5 minutes he was allowed to get dressed, they took him to the living room and then threw eggs, milk and alcohol at him to humiliate him. They then left the house taking a number of items with them in bags, including laptop, gaming console and some clothing. Once they had left, Mr Bolbol cleaned himself up and went to the university so that security staff could report what had happened to the police.

[9]As a result of the incident, Mr Bolbol had bruising and marking to his arms, a shoeprint to his forehead and heavy reddening to the side of his forehead and a large mark on his neck. Mr Smith was not arrested at that time.

[10]Sixteen days later, on 17 March 2023, Mr Smith robbed the Nursery Road Mini Market in Birmingham. He and another male entered the shop at about 2.30pm and closed the door behind him. Mr Smith was armed with a meat cleaver. He threatened the shopkeeper with it and they made off with £380 in cash and cigarettes.

[11]On 23 March, so about six days later, Mr Smith robbed the Lifestyle Express in Wheeler Street in Birmingham and, again, he and another male entered the shop at about 1.00 pm. Mr Smith was carrying a meat cleaver, the other man had a gun. Mr Smith threatened the shopkeeper with the meat cleaver before the two men made off with, this time, cash and Vapes.

[12]Mr Smith was arrested and interviewed two days later for this second robbery having been identified on the CCTV. He answered "No comment" but he did read out a prepared statement in which he denied any involvement in the second robbery.

[13]Mr Smith was charged with the second robbery and having the meat cleaver in a public place. The Youth Court sent him to the Crown Court for trial and remanded him into custody. At a further hearing on 11 July, Mr Smith pleaded guilty to both of those offences upon being rearraigned and sentencing was adjourned. On 7 August 2023, Mr Smith was produced from custody for a voluntary interview in respect of the first robbery that had taken place on 17 March 2023. At this time Mr Smith answered "No comment". On 12 August, Mr Smith was again produced from custody to be interviewed in connection with the offence of aggravated burglary. He answered "No comment". On 31 August 2023 he was charged with the first robbery and with having a meat cleaver in a public place.

[14]In September 2023, Mr Smith made his first appearance at court in respect of those two charges. He pleaded guilty and his case was sent to the Crown Court.

[15]On 2 October 2023 he appeared before the Crown Court at Birmingham to be sentenced for the first and second robberies and for having a meat cleaver in public and he was made subject to a youth rehabilitation order with intensive supervision for some 36 months and there were a number of other requirements. Accordingly he was released from custody so that he could serve that sentence in the community.

[16]On 7 November 2023, so that is just over a month later, police officers searched his home address that he shared with his mother. Mr Smith was present in a bedroom, where the police found a black self-loading pistol in a bag. There was a magazine in the pistol which was loaded with 9 mm rounds. The rounds were live and the gun was viable. The police arrested Mr Smith. In interview he answered again "No comment" but he handed over a prepared statement in which he denied any knowledge of the firearm or ammunition.

[17]He was charged the same day with the firearm offences. His case was sent to the Crown Court again and Mr Smith was remanded into custody where he has remained ever since. It was when in custody that Mr Smith carried out the murder which is the subject of this Reference.

[18]At his adjourned pre-trial and preparation hearing on 5 January 2024 Mr Smith pleaded guilty to offences of possessing a prohibited firearm and possessing ammunition without a firearms certificate. Sentencing was adjourned and on 18 April 2024 he was sentenced for the firearms offences to 3 years' detention and the youth rehabilitation order was revoked.

[19]On 11 July 2024 he was charged with an offence of aggravated burglary in relation to the offence on 1 March 2023. On 7 August 2024, Mr Smith and his co-defendants were sent to the Crown Court for trial for that offence.

[20]In August 2024 Mr Smith and Mr Robinson were serving sentences at HMP Fosse Way. They occupied cells on the same landing. Also on their landing was another inmate who was the victim of the murder, Mr Mahir Mohamed, who was known as "Mr Mahir Abdulrahman" and who I will refer to as "Mr Mahir". Mr Mahir had attempted to communicate with a person purporting to be a young teenage girl, who was in fact a decoy run by a vigilante group. That group reported Mr Mahir to the police, which explained why he was in HMP Fosse Way.

[21]Mr Smith and Mr Robinson were part of a group of inmates who tormented Mr Mahir after they learned why he was in custody. Mr Mahir spoke little English and did not socialise with other prisoners.

[22]On 19 August 2024, at about 8.35 am Mr Smith assaulted Mr Mahir by punching him hard to the face. Mr Mahir told a Prison Listener that two men had come into his cell and punched him. The second man was another inmate who was part of Mr Smith's group. At that time Mr Mahir had visible bruising and swelling to the right side of his face and a red mark on his left temple. Mr Smith's group continued to goad Mr Mahir for the remainder of the day.

[23]Mr Mahir responded by throwing boiling water at them through a gap in the cell door. The water splashed both Mr Smith and Mr Robinson, but it did not cause them any injuries. Mr Smith and Mr Robinson felt they had been disrespected, and resolved to get revenge. The following morning the cells were unlocked at 7.22 am. Mr Robinson went to Mr Mahir’s cell and put on a dressing gown and fingerless gloves. Mr Smith was shirtless. They put on lace-up trainers which were described in the evidence as being "sturdy" instead of the loose footwear which appeared to be sort of slip-on type shoes they had been wearing the day before. They went onto the landing on the wing and then went into Mr Mahir's cell, which was unlocked. Once in there they attacked him. When Mr Mahir was face down on the bed Mr Smith stamped on the back of his neck with severe force causing two breaks to one of his ribs and a bleed on the brain. Mr Robinson punched Mr Mahir several times to his face. After about 30 seconds Mr Smith and Mr Robinson emerged leaving Mr Mahir slumped against the bed. He died from his injuries within a minute or so.

[24]Mr Smith and Mr Robinson kept returning to the cell periodically because they were concerned that Mr Mahir was not moving. Another prisoner went in to try and rouse Mr Mahir by throwing water over him but he did not stir because he was already dead. Eventually another prisoner spoke to staff who raised the alarm. They found Mr Mahir was dead on the floor of his cell.

[25]Mr Smith and Mr Robinson were arrested and interviewed in connection with Mr Mahir's death. They answered "No comment" and provided brief statements denying any involvement. On 22 August 2024 they were both charged with murder.

[26]Mr Smith and Mr Robinson pleaded not guilty to murder, Mr Smith having pleaded not guilty earlier to the aggravated burglary. The trial commenced in May 2025, so earlier this year. Mr Smith was convicted on 28 May 2025. Mr Smith then pleaded guilty to the aggravated burglary on 29 May 2025. The sentence

[27]When sentencing, the judge had a pre-sentence report from the earlier sentence for the possession of a firearm. There was a letter of remorse in which Mr Smith said he had wasted his whole life. He began to show some insight into the harm caused by his serial offending which we have just set out.

[28]The pre-sentence report outlined the fact that Mr Smith himself had been stabbed in October 2021, so he had been removed by Children’s Services from Birmingham for his own protection. The person who had stabbed Mr Smith himself was murdered in July 2022.

[29]Mr Smith was made the subject of deprivation of liberty orders but he went missing from Children's Services. He had associations with a gang in Birmingham and a Gang Injunction Order was made against him. He was also the subject of a positive Conclusive Grounds National Referral Mechanism for Modern Slavery and there was reference to the recorded links between a life in care and subsequent offending.

[30]As to the offence of aggravated burglary, the judge applied the Sentencing Council Guideline’s Offence Specific Guideline and took a starting point of 12 years' custody. There was no argument with that from either side. The judge reduced that term to one of 8 years to reflect Mr Smith's age at the time of the offence, which was 17 years and 3 months. He then made a further reduction of 25 per cent by way of credit for plea for guilty. That brought the sentence down to 6 years. The judge said that he intended to add that sentence to the minimum term that he would have to impose for the murder and in order to do so he reduced the 6-year term to one of 4 years, that was to take account of the fact that this would be a term that was served in full and there would be no release on licence after serving part of the sentence. The judge then made a further reduction of 2 years to reflect matters of personal mitigation. The judge arrived at a final figure of 2 years to be added to the minimum term for the murder. The judge said that a sentence of 2 years was "… astonishing given that I started at twelve. That is where we are." Criticism, as we have already indicated, is made of that further reduction. The judge then decided he would add an additional period of time for the unexpired portion of the 3-year sentence that Mr Smith was serving for the firearms offence, and so the 6 months was added to the 2 years. So an additional 2 years 6 months was added to the minimum term for the murder.

[31]The judge concluded that Mr Smith had stamped on Mr Mahir's neck with severe and brutal force causing fatal brain injury from which Mr Mahir died less than a minute later. Mr Smith had intended to cause really serious harm but had not intended to kill. The judge concluded that the facts fell into paragraph 5 of Schedule 1 of the Sentencing Code and as Mr Smith had been 18 when he committed the murder, this meant that the starting point would be 15 years. The offence was aggravated by the fact that Mr Smith had relevant previous convictions, by the degree of planning involved, by the location of the offence and by the history of abuse which had already been meted out to Mr Mahir. Those considerations took the minimum term up to 18 years before the judge reduced it to 15 years to take account of age and the lack of an intention to kill. The judge then added 2 years 6 months to that term to reach the minimum term of 17 years 6 months for the sentence of custody for life that he was required to impose. Further information

[32]We have further information from the prison in a report dated 4 July 2025. This shows that Mr Smith is now assessed as standard on the incentives and earned privilege scheme. This Reference

[33]The sentence for murder was a life sentence. It is necessary to set a minimum term unless there is a whole life order and the court has to have regard to the principles set out in Schedule 21 of the Sentencing Act 2020. The Solicitor General's submission is that paragraph 4 of Schedule 21 applied and that the judge should have taken a 25-year starting point rather than the 15-year starting point that he was invited at trial to take. This was because Mr Smith took a weapon, namely his shoes, to the scene, being Mr Mahir’s cell, to commit an offence and to have available to use as a weapon, and he had used those shoes in committing the murder.

[34]At page 29G of the transcript of the sentencing hearing,

the judge said this about Mr Smith's footwear:

"You both had your sturdiest footwear on your feet, lace-up shoes, as opposed to the slip-ons that you had both worn on the 19th, the day before. That was a deliberate choice of footwear, meaning that you both meant to use your feet if the need arose."

[35]It does not appear that at the trial anyone gave any thought to paragraph 4 of Schedule 21, the prosecution or the defence, or the judge. In R v Deeprose & Ors

[2024] EWCA Crim 1431

;

[2025] 1 WLR 1190

, the Court of Appeal considered what the phrase "knife or other weapon" meant in paragraph 4 of Schedule 21. The Court concluded at paragraph 22 of the judgment that "other weapon" could extend to a car and reference was made to other cases where "other weapon" had included a stick, a bottle, a hammer and a rolling pin. The short submission on behalf of the Solicitor General is that if those items are capable of amounting to a weapon other than a knife, then a pair of sturdy shoes, because it is well known that a shod foot can be a weapon, could amount to “or other weapon”.

[36]We agree with the proposition of law that sturdy shoes to be used as a weapon could amount to taking a weapon to the scene. The difficulty we have in this case however is that it does not appear that the Crown's case was ever put on that basis either generally in the trial or at the sentencing hearing. That causes us concern in circumstances where there is a difference between the starting points of 15 years for a paragraph 5 murder minimum term and 25 years for a paragraph 4 murder minimum term. There does not appear to have been particular exploration at the trial of why, for example, Mr Robinson appeared with shoes in the morning and then slip-ons in the afternoon and then shoes the next day, or indeed what Mr Smith was doing. It is right to record that, as Mr Duck KC on behalf of Mr Smith accepted, there was cross-examination about the use of the shoes and the fact that there was planning.

[37]In these circumstances, we are concerned that the facts underlining the difference in starting points between paragraphs 4 and paragraphs 5 ought to have been fairly put to Mr Smith and ought to have been the subject of exploration at sentence, if it was going to be suggested that this meant that this murder was within paragraph 4 of Schedule 21. As a matter of fairness the issue had to be confronted at trial and sentence so that findings of fact about which the judge was sure could be made. We accept, as Mr Jarvis KC (who did not appear below) has properly pointed out, that this Court is not bound by what happens at trial. This Court, however, is concerned with issues of fairness and a difference in starting point of 10 years can have very substantial effect on all the issues in the trial.

[38]We have the finding of fact from the judge set out in paragraph 34 above and we do have the fact that the prosecution had put their case on the basis that the change of shoes demonstrated some degree of planning. We are, however, concerned by the fact that experienced prosecuting counsel, experienced defence counsel and an experienced trial judge did not themselves consider that this came within paragraph 4, which again raises concerns about whether the judge was sure that there was a weapon taken to the scene. For all those reasons we do not allow the Reference in relation to the first point about increasing the starting point for the minimum term from 15 years to 25 years.

[39]That brings us to whether or not the judge should have gone further up from the 18 years before discounting for mitigation and that he did not take account of all the aggravating factors. It was the trial judge himself who made the finding of fact in relation to the footwear and had seen and heard all the issues at the trial. In our judgment, although other judges might have gone up further from the 15-year starting point before considering issues of mitigation, we are unable to say that that increase was in any sense lenient or indeed unduly lenient.

[40]That brings us to the final issue in relation to the Reference which was the aggravated burglary. In our judgment, the judge was entitled and right to reduce the 12-year starting point to reflect age and that is common ground. He was also right to reduce the sentence after the reduction for age by 25 per cent to reflect credit for plea. The judge also had to take into account the fact that this was then going to be part of a minimum term rather than a determinate sentence and therefore had to make some further adjustment. We do consider that the reduction of 2 years for the mitigation was very generous, but we remind ourselves of the relevant principles to be applied on References, which are that: first the judge at first instance is particularly well placed to assess the weight to be given to competing factors; secondly, a sentence is only unduly lenient when it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate; and thirdly, that the Reference is designed to deal with cases where judges have fallen into gross error. We are not in a position to say that that further reduction was a gross error. At the end of the day, this is a young man who has been sentenced to life imprisonment and has a minimum term to serve of 17 years 6 months before he will even be considered for release. So notwithstanding the fact that we have granted leave for the Reference, we refuse the Reference for those reasons.

[41]We should conclude this judgment by thanking both Mr Jarvis and Mr Duck for their excellent oral and written submissions. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk