Leahu, R. v

An appellate court will not interfere with a sentence merely because a sentencing judge made an inappropriate reference to a co-defendant’s basis of plea. Intervention depends on whether the matter in fact affected the offender’s sentence. Where the sentencing remarks otherwise provide a sound and independent basis for distinguishing the offender’s role, the sentence will stand if it is neither wrong in principle nor manifestly excessive. A substantial difference between co-offenders’ sentences is not objectionable where it reflects materially different roles, duration of involvement, knowledge and responsibility.

The appellant pleaded guilty in the Crown Court at Inner London to conspiracy to defraud at common law. He received 58 months’ imprisonment for his role in a sophisticated, organised attack on cash machines which resulted in thefts exceeding £1.3 million.

He appealed with permission, contending that the sentencing judge had wrongly treated as aggravating an assertion in co-defendant Mirzac’s basis of plea that the appellant had introduced him to another conspirator. The appellant’s own basis of plea denied recruiting anyone. The issue was whether that erroneous reference had aggravated the appellant’s sentence or created objectionable disparity with Mirzac’s 34-month sentence.

1. Appeal dismissed. The judge’s reference to Mirzac’s basis of plea, stating that the appellant had introduced Mirzac to Bortos, should not have been made when sentencing the appellant. It was relevant only to Mirzac and was inconsistent with the appellant’s own basis of plea: [15]–[16].

2. The Court rejected the submission that the reference had aggravated the appellant’s sentence. Before making it, the judge had identified a sound and sufficient basis for the 58-month term. The appellant had undertaken reconnaissance over up to two weeks, was paid for it, identified and accessed cash machines to facilitate the loading of malware, knew the enterprise’s purpose, and was trusted with a notebook of locations and keys. His frequent contact with Bortos and Paladi supported the finding of co-ordinated activity: [18].

3. The appellant’s position was materially different from Mirzac’s. Mirzac had been involved for one day, in relation to two machines, and had not been paid. The disparity between their sentences was therefore justified. Indeed, equal or a substantially lower sentence for the appellant would have given Mirzac cause to complain: [18]–[19].

4. The sentence was neither wrong in principle nor manifestly excessive, and did not give rise to objectionable disparity. The Court therefore dismissed the appeal: [19]–[20].

• Court of Appeal (Criminal Division): Sentence appeal dismissed: [2018] EWCA Crim 1064.

• Crown Court at Inner London: Following a guilty plea to conspiracy to defraud, the appellant was sentenced on 2 May 2017 to 58 months’ imprisonment.