Court of Appeal Affirms Key Sentencing Principles in R v Ishmail Zafar Case

Citation: [2023] EWCA Crim 1305
Judgment on


In the case of R v Ishmail Zafar ([2023] EWCA Crim 1305), the Court of Appeal dealt with a renewed application for leave to appeal against the sentence. The case presents a multitude of legal principles, especially those related to the interpretation and application of sentencing guidelines, the consideration of aggravating and mitigating factors, the principle of totality, and the statutory limitations on sentencing powers of the Crown Court.

Key Facts

Ishmail Zafar, aged 30, with previous convictions, pleaded guilty to criminal damage and two counts of arson being reckless as to whether life was endangered. He received an 86-month imprisonment sentence for the arson offenses and a concurrent term for criminal damage. Significant factors included the use of accelerants in the arson resulting in severe psychological harm to the occupants, and prior convictions while on bail. The sentencing judge considered various aggravating and mitigating factors before imposing the final sentence. On appeal, the appellant challenged the starting point for the sentencing, aggravation calculus, failure of mitigation, weight on the principle of totality, lack of discount for Covid-19 prison impacts, and claimed that the sentence was manifestly excessive.

Sentencing Guidelines and Starting Points

The central legal principle discussed is the sentencing court’s adherence to the Sentencing Guidelines. The judge must classify under the correct culpability and harm categories to establish a starting point for the sentence. This case affirms that the sentencing judge is entitled to consider Victim Personal Statements when determining the harm category.

Aggravating and Mitigating Factors

The case illustrates the balancing act that sentencing judges must perform when considering aggravating and mitigating factors. Aggravating factors can increase the sentence, including recent convictions, being on bail, and the nature of the attack. Conversely, mitigating factors, such as lack of premeditation, genuine remorse, and positive character references, can reduce the sentence.

Principle of Totality

The principle of totality requires that a sentence must reflect all the offending behavior and should not be unduly harsh or lenient when considering the overall criminal conduct. The appellant’s submission suggested that this principle was not adequately weighted by the sentencing judge.

Statutory Limitations

An important legal principle highlighted in this case is the Crown Court’s limitation to sentence within the statutory maximum for certain offenses, irrespective of the case being dealt with in the Crown Court due to indictable-only offenses being considered alongside.


The Court of Appeal found that the sentencing judge had correctly classified the offense under culpability category B with category 1 harm, having considered the serious psychological harm evidenced by the Victim Personal Statements. The Court also found that the judge had rightly identified aggravating factors and that these were balanced against the mitigating factors within the appropriate sentencing guidelines.

However, the Court of Appeal recognized an error in sentencing for the criminal damage count. The Crown Court had imposed a 12-month sentence, exceeding the statutory maximum of three months. The appeal was allowed to this extent, reducing the count 1 sentence to nine weeks, while keeping the overall sentence unchanged since it was concurrent with longer terms for the arson offenses.


The case of R v Ishmail Zafar reaffirms several critical legal principles in sentencing decisions, such as adherence to sentencing guidelines, careful consideration of aggravating and mitigating factors, application of the principle of totality, and acknowledgment of the statutory limitations on sentencing power. It upholds the sentencing judge’s discretion within the guidelines’ bounds while correcting statutory overreach in sentencing for the criminal damage count. The Court of Appeal’s decision demonstrates the legal system’s commitment to proportional and lawful sentencing.

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