R v Daniel Mallinson & Anor

When a custodial sentence is within the range that may be suspended, the sentencing court must expressly consider suspension and weigh the relevant guideline factors. A failure to address those matters or to explain why immediate custody is required may justify the Court of Appeal conducting the balancing exercise afresh. Factors supporting suspension include a realistic prospect of rehabilitation, low risk of reoffending or harm, personal mitigation and harmful effects on others. Those matters must be balanced against seriousness. A serious breach of trust for substantial gain, involving multiple sustained conspiracies and the corrupting of others, may make immediate custody necessary to achieve proper punishment.

The appellants pleaded guilty to conspiracy to commit theft and transferring criminal property arising from the theft of asphalt from their employer. They were each sentenced at Leeds Crown Court by HHJ Khokhar to two years’ imprisonment, with concurrent sentences on the other counts. The custody threshold, the starting point, the guilty-plea credit and the term of imprisonment were not challenged. With leave, each appellant appealed on the sole ground that the judge had failed to consider properly whether the sentence could be suspended. The central issues were whether the Court should conduct that assessment afresh and, if so, whether the circumstances justified suspended sentences.

Both appeals dismissed. The appellants accepted that the custody threshold had been passed, and made no challenge to the general sentencing approach, the starting point, the guilty-plea credit or the length of the terms imposed.

1. The sentencing judge had not referred to the factors relevant to suspension, explained why immediate custody was required, or addressed the guideline provisions concerning community and custodial sentences. The fact that the judge had suspended the sentences of co-defendants showed that he had considered suspension in principle, but the different culpability and benefit attributed to those defendants justified treating the appellants differently.
2. Where the shortest term commensurate with the seriousness of the offence is two years or less, the court should consider suspension and weigh the relevant factors. Given the omission in the sentencing remarks, the Court of Appeal was entitled to conduct that balancing exercise afresh.
3. For both appellants, factors favouring suspension included a realistic prospect of rehabilitation, no relevant recent convictions or further offending, low risk of reoffending or harm, personal mitigation and the harmful effect of immediate custody on others.
4. Those factors were outweighed by the seriousness of the offending. It involved a serious breach of trust for substantial gain, two conspiracies extending over several years, and the corrupting influence of the appellants on others involved in the offending. In those circumstances, proper punishment could be achieved only by immediate custody.

The original sentences were therefore appropriate and both appeals were dismissed.

• Court of Appeal (Criminal Division), [2026] EWCA Crim 358: conducted the suspension assessment afresh and dismissed both appeals.
• Leeds Crown Court, case no. [13LD0354121]: following guilty pleas, HHJ Khokhar sentenced each appellant to two years’ imprisonment on 14 November 2025.