Hussain, R. v

A sentence for conspiracy to murder must reflect the offender’s own culpability and mitigation. Where a co-offender instigated the conspiracy, had previously sought to recruit others, was substantially older and had a more serious record, parity does not require the other offender to receive the same sentence.

The practical effect of an indeterminate sentence imposed on a co-offender may be personal to that offender and, without more, may not assist a parity challenge. However, the sentencing court must make proper allowance for a materially lesser role and personal mitigation.

The appellant, aged 23, was convicted at Sheffield Crown Court of conspiracy to murder and sentenced to 14 years’ imprisonment. His co-defendant, who had instigated the plan to arrange the shooting of his estranged wife’s new partner, received imprisonment for public protection with a minimum term of ten years.

The appellant appealed against sentence. He contended that the sentence was manifestly excessive, particularly because the co-defendant’s sentence had a lower determinate equivalent, the co-defendant had a worse record and had played the leading role.

The central issue was whether the appellant’s lesser role and additional mitigation required a reduction from 14 years.

1. Appeal against sentence allowed. The court quashed the 14-year sentence and substituted 11 years’ imprisonment. Time spent on remand in custody was to count towards that sentence.

2. The Recorder had not said that the appellant should receive a less severe sentence than the co-defendant. He had treated the two men as equally culpable for the offence. The practical effect of the co-defendant’s sentence was a determinate equivalent of 12 years, but that disparity alone did not materially assist the appellant. The co-defendant’s sentence depended upon circumstances personal to him, including the sentence he was already serving.

3. There were nevertheless material grounds for differentiating the appellant. The co-defendant was the instigator, had previously tried to recruit another prisoner, was substantially older, and had a more serious criminal record. The appellant therefore had additional mitigation and a lesser role in the conspiracy.

4. Having assessed the appellant’s individual role and mitigation, the court held that 14 years was too high. An 11-year sentence properly reflected his culpability.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence, quashed the 14-year sentence and substituted 11 years’ imprisonment.
• Sheffield Crown Court: On 27 February 2006, convicted the appellant of conspiracy to murder and sentenced him to 14 years’ imprisonment.