Mallinson, R. v

Factual and Procedural Background

On 29 July 2024 at The City Crown Court, two defendants (hereafter Appellant 1 and Appellant 2) pleaded guilty on re‑arraignment to offences of conspiracy to commit theft and transferring criminal property. On 14 November 2025 they were sentenced by Judge Khokhar. Appellant 1 received: on count 1 (conspiracy to commit theft, s.1(1) Criminal Law Act 1977) 2 years' imprisonment; on count 2 (conspiracy to commit theft, s.1(1) Criminal Law Act 1977) 15 months concurrent; on count 3 (transferring criminal property, s.327(1)(d) Proceeds of Crime Act 2002) 20 months. Appellant 2 received: on count 1 (conspiracy to commit theft) 2 years' imprisonment; on count 2 15 months concurrent; on count 4 (transferring criminal property, s.327(1)(d) POCA 2002) 12 months. Each appellant's sentences were ordered to run concurrently, producing an effective term of 2 years' imprisonment for each.

The offending involved two conspiracies to steal asphalt from Company A. Appellant 1, Appellant 2 and Co‑defendant 1 participated in the first conspiracy; Appellant 1, Appellant 2, Co‑defendant 1 and Co‑defendant 2 participated in the second. The conspirators permitted external companies to remove asphalt without proper recording, preventing Company A from invoicing and receiving payment. Cash payments were made to the appellants (and to Co‑defendant 1). Company A's loss exceeded £100,000. Investigations followed an anonymous call and security inquiries; police enquiries into bank accounts revealed substantial receipts. Pre‑sentence reports and mitigation material were prepared for both appellants. Both appealed their sentences with leave of the Single Judge; the sole ground of appeal advanced was that the sentencing judge erred by failing to consider suspending the custodial sentence.

Legal Issues Presented

1. Whether the sentencing judge erred in principle by failing to give any or any proper consideration to whether the custodial sentences imposed on the appellants could be suspended.

Arguments of the Parties

Appellant 1's Arguments

• Counsel (Attorney Duffy) accepted custody was likely but argued the sentence should have been suspended because there were compelling reasons to do so.
• Factors relied on: no previous convictions, full‑time employment, no further offending in the six years between offending and sentence, realistic prospect of rehabilitation, low risk of reoffending (per pre‑sentence report), strong personal mitigation (care responsibilities for a relative), and significant harmful impact on others if immediate custody were imposed.

Appellant 2's Arguments

• Counsel (Attorney Randall) made similar submissions that immediate custody should have been suspended.
• Factors relied on: absence of relevant recent convictions, continued employment, lengthy delay between interview and sentence, no further trouble in the intervening years, employer support, pre‑sentence report indicating low risk of reoffending, family circumstances (serious illness of spouse and dependent children), and mitigation letters.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court reviewed the sentencing judge's approach and the appellants' submissions about suspension. Key elements of the analysis were:

1. The sentencing judge treated count 1 as the lead offence, selected a starting point between category 1A and 2A (settling on a 3‑year starting point), adjusted for mitigation and delay to 30 months, and then applied a 20% guilty plea discount to reach 2 years' custody.
2. The sentencing judge did not explicitly address the guideline factors to be weighed when deciding whether to suspend a sentence; however, he had considered suspension for two co‑defendants (Co‑defendant 1 and Co‑defendant 2) and suspended their sentences on grounds of different culpability and personal circumstances.
3. The appellate court identified and set out the factors in favour of suspension for each appellant (realistic prospect of rehabilitation, employment, absence of recent convictions or further offending, supportive references, low risk in pre‑sentence reports, and significant family impacts). These factors warranted a proper balancing exercise under the relevant guideline which advises considering suspension where the shortest term commensurate with seriousness is two years or less.
4. Against those mitigating factors, the Court emphasised a significant countervailing factor: the seriousness of the offending. The offences involved a serious breach of trust, substantial gain, two sustained conspiracies over several years, and corrupting influence on others.
5. Balancing those considerations afresh, the Court concluded that the seriousness of the offending meant appropriate punishment could only be achieved by immediate custody. The Court therefore determined that, despite the sentencing judge's omission to set out the balancing exercise in full, interference was not warranted because the outcome would remain immediate custody.

Holding and Implications

DISMISSED

Holding: The Court dismissed both appeals and upheld the sentences of two years' immediate imprisonment for each appellant as imposed below.

Implications: The direct effect is that both appellants remain subject to the original custodial sentences. The opinion does not purport to establish a new precedent beyond applying established guideline balancing; no broader or novel legal principle was announced.