Cunningham & Ors v R.

A Goodyear indication concerns the maximum sentence if a guilty plea is tendered at that stage. If given, it binds the sentencing judge; the judge may reserve the position or decline to give an indication. Sentencing discussions should follow the structured process described in R v. Goodyear [2005] 2 Cr App R 20.

An earlier sentencing appeal which was not intended as a guideline does not fix the proper range in a later case. Sentence must reflect contemporary assessment of culpability and harm, together with the scale, duration, sophistication and financial impact of the offending. Individual role, relevant previous offending, ill health and proper credit for a plea must also be reflected.

The three appellants were sentenced in the Crown Court at Newcastle upon Tyne for a conspiracy to blackmail. Cunningham Snr and Adams pleaded guilty on the fourth day of a 29-day trial. Cunningham Jnr was convicted after trial.

The conspiracy involved unsolicited and substandard tarmac work, inflated demands for payment, and serious threats of violence and property damage against small-business owners. Cunningham Snr and Adams led the operation and arranged the laundering of its proceeds. Cunningham Jnr had a more limited role, principally connected with the first incident and a company used in the offending.

Cunningham Jnr abandoned his conviction appeal. The court granted renewed leave to appeal against sentence after refusal by the Single Judge. The central issues were whether the sentences were manifestly excessive, the relevance of R v Killgallon & Gray [1998] 1 Cr App R (S) 279, and the proper weight for individual mitigation and guilty pleas.

1. The sentence appeals were allowed. The court quashed the original sentences and substituted shorter terms.

2. The discussion before Cunningham Snr and Adams pleaded guilty did not amount to a binding Goodyear indication. Their advocates did not contend that the pleas had been induced by an assurance or that either appellant could rely on an expectation of sentence. The court nevertheless stated that the unstructured discussion between judge and advocates was unsatisfactory. The proper process is explained by R v. Goodyear [2005] 2 Cr App R 20: an indication, if given, is of the maximum sentence on a plea at that point and is binding, but the judge may reserve the position or refuse to give one.

3. R v Killgallon & Gray [1998] 1 Cr App R (S) 279 did not prescribe the appropriate range. Its reduction of sentences was brief and conclusory and was not intended as guideline authority. Moreover, the present conspiracy lasted longer, involved more incidents and a wider geographical reach, employed more sophisticated laundering and paperwork, and involved substantial sums demanded and obtained. Sentencing had also come to focus on culpability and harm.

4. For the two principal organisers, a pre-mitigation starting point of eight to nine years was justified. Adams’s recent conviction for similar offending aggravated his case, although his serious medical condition made imprisonment harsher. Eight years before credit, reduced by 15 per cent for his plea, produced six years and nine months. Cunningham Snr’s antecedents and serious medical condition justified seven years before the same credit, producing six years.

5. Cunningham Jnr’s involvement was materially less extensive than that of the two principals and was effectively limited to the first incident and his position in one company. His sentence was reduced to four years and six months.

• Court of Appeal (Criminal Division): In [2015] EWCA Crim 1884, the court granted renewed leave to appeal against sentence and allowed the three sentence appeals. Cunningham Jnr’s conviction appeal had been abandoned.
• Crown Court at Newcastle upon Tyne: Cunningham Snr and Adams pleaded guilty to conspiracy to blackmail. Cunningham Jnr was convicted after trial. On 12 March 2014, Cunningham Snr and Adams each received eight years and six months’ imprisonment, and Cunningham Jnr received six years’ imprisonment.