R v Antonio Paul Counihan & Ors

In sentencing for a conspiracy to commit multiple thefts, the court should first assess the overall conspiracy by reference to the applicable theft guideline. It should then adjust the sentence for each offender’s proved role, duration of participation, planning and awareness of the enterprise’s scale.

Overall harm is not confined to the losses directly caused by an individual conspirator. A serious conspiracy may nevertheless justify a sentence at the lowest permissible level where accepted bases of plea limit individual culpability and powerful personal mitigation has accrued. A suspendable sentence may properly be suspended after prolonged delay where demonstrated rehabilitation and the consequences of immediate custody make that course a justified exercise of discretion.

The Solicitor General obtained leave to refer as unduly lenient the sentences imposed at the Crown Court at Warwick on 27 March 2024. The four respondents had each pleaded guilty to conspiracy to steal fibre-optic installation equipment from BT Openreach vans.

The conspiracy involved 34 thefts or attempted thefts across eight counties, using specialist knowledge to target vans and cut through their roofs. Direct losses exceeded £260,000, with further consequential business losses. The respondents’ accepted bases of plea differed as to their roles and periods of involvement.

Each received a suspended sentence of imprisonment with unpaid work. The central question was whether, despite the seriousness of the overall conspiracy, those sentences were unduly lenient.

1. Reference declined. The sentences were lenient and at the bottom of the permissible range, but they were not unduly lenient. The court therefore declined to intervene.
2. Sentencing for conspiracy required the court first to assess the conspiracy overall by reference to the Theft Guideline. This was a sophisticated, planned and nationwide enterprise with losses substantially above the Category 1 threshold. It comfortably fell within Category 1A, for which the starting point was three years and six months’ custody. The large number of thefts and attempted thefts exerted upward pressure on sentence. A controlling organiser responsible for planning throughout could properly have received an adjusted starting point of about five years or more.
3. The overall assessment did not remove the need to sentence each respondent for his own accepted participation. The court had to give effect to the limited duration and role established by the accepted bases of plea. No respondent had been identified as the controlling mind of the conspiracy. Applying Khan (Kazim) [2013] EWCA Crim 800, awareness of the enterprise’s scale remained relevant to culpability. A notional post-trial sentence of three years for each respondent was very lenient, but just within the sentencing judge’s discretion; two years and six months could not be justified.
4. Powerful mitigation justified reducing the notional sentences before guilty-plea credit. The court upheld the judge’s assessment of rehabilitation, delay, good character, caring responsibilities and the personal consequences of custody. For Wright, Counihan and Neal, the resulting sentences were capable of suspension. Although immediate custody would have been inevitable had they been sentenced promptly, the judge was entitled, after considering the applicable imposition guideline, to give substantial weight to their demonstrated reform during the delay and to suspend the sentences.
5. George’s late plea meant that delay itself was not mitigation, but he had used the period to reform and establish a legitimate business employing others. The judge was entitled, though not without hesitation, to treat him as broadly comparable to the other respondents on the accepted bases of plea. His 21-month suspended sentence with 200 hours’ unpaid work also just avoided being unduly lenient.

• Court of Appeal (Criminal Division). The Solicitor General’s reference alleging undue leniency was considered and dismissed; the suspended sentences were upheld.
• Crown Court at Warwick. On 27 March 2024, HHJ Anthony Potter imposed suspended sentences of imprisonment, with unpaid-work requirements, following guilty pleas to conspiracy to steal.