Andy recently acted for his client ‘MG’ in proceedings before Warwick Crown Court in respect of a sophisticated and complex offence of conspiracy to steal. Following the drafting and submission of a comprehensive basis of plea, the deployment of powerful mitigation and persuasive submissions from instructed Counsel, the original sentencing Judge was persuaded to impose a suspended sentence upon our client together with a requirement for him to perform unpaid work.
Our client had faced an indictment containing a single count of conspiracy to steal high value fibre optic installation equipment from BT Openreach vans. The total loss to BT was in excess of £390,000. The conspiracy stretched over a 9-month period, across 8 counties comprising of 34 separate events in which a total of 42 vans were targeted.
Over a two-day sentencing hearing at the Crown Court HHJ Potter described the nationwide conspiracy as “brutally effective” and drew upon the specialist knowledge available to MG as a result of his previous experience in the industry.
The Crown’s case was that each offender had played a significant role in the conspiracy which was a sophisticated commercial venture, involving targeted thefts of large quantities of valuable fibre equipment for onward sale. The prosecution submitted that the offence should be categorised in the case of each offender as an offence of High culpability because of the sophisticated nature of the offence and modus operandi and the need for significant planning; and that it fell within Harm category 1 (above £100,000 for financial loss and other significant harm). As the Appeal Court found, the harm did not merely creep into category 1, the losses inflicted by the conspirators were significantly higher than the £100,000 marker above which category 1 was applicable.
Our client’s basis of plea was not disputed by the Prosecution. The basis of plea limited our client’s role and set out that he had joined a pre-existing and already active conspiracy at the halfway point and then extricated himself and left the conspiracy before it had reached its conclusion. Many of the financial payments to his co-conspirators identified by the prosecution were explained in the basis of plea as being for gambling purposes. The defence obtained and deployed persuasive mitigation material, including evidence from a psychiatrist that MG had a long-standing gambling addiction which he had received treatment for. The defence also obtained materials to show how MG had moved on with his life since leaving the conspiracy. He was soon to become a father for the first time was now running a successful business employing a large number of staff who were reliant upon him. Evidence was obtained as to the devastating effect a custodial sentence would have upon his family and employees.
Our client was sentenced to 21 months imprisonment suspended for 2 years with 200 hours of unpaid work.
Following the sentencing hearing at the Crown Court the Solicitor General sought leave to refer the case to the Court of Appeal on the grounds that the sentence imposed at the Crown Court was unduly lenient. The full Judgment can be read here: R v Antonio Paul Counihan & Ors [2024] EWCA Crim 747
It was argued by the Solicitor General that the punishment for such serious offending could only be achieved by immediate custody and that the Court of Appeal should substitute the suspended sentence with one of immediate custody.
Having considered careful and focussed submissions from the defence, the Court of Appeal were persuaded not to intervene and refused the Solicitor General’s application to alter the sentences.
The Court identified two features of the case that caused some difficulty making the sentencing exercise undertaken by the Judge unusual. The first was that, no one was identified as being the leader of the group activity or the organising mind in terms of planning and execution of the individual events or the conspiracy as a whole. In this regard, given that MG’s basis of plea had not been disputed, his level of responsibility could not be elevated above those who (on the accepted basis) started and ran the conspiracy before he joined.
The second difficulty the Court identified was the effect of the delay prior to sentence and the fact that, as the Judge found, all four offenders had turned their lives around to a very substantial degree.
In respect of our client, despite their Lordships being satisfied that the sentence passed was lenient, and that there were proper grounds to submit that it was unduly lenient, the suspended sentence just avoided being unduly lenient.
Their Lordships found that the sentencing Judge was entitled to start with a notional starting point of 3 years before mitigation and a reduction for plea and that even if a reduction of 12 ½ % for MG’s plea had been applied this would still have taken MG down into suspended sentence territory.
In their Judgment the Court found that: “Standing back, these were lenient sentences which at first sight appear to be far too low. We have, however, gradually come to the view that the Judge’s approach to the sentencing of all four offenders was not simply to be described as “humane”, though it certainly was. In our judgment the sentences were justifiable, though right at the bottom of the permissible range. We therefore decline to intervene”.
