Hussain, R. v

MRS JUSTICE DOBBS: On 27th February 2006, at the Sheffield Crown Court, this 23-year old appellant was convicted of conspiracy to murder and was sentenced to 14 years in prison. He appeals against sentence by leave of the Single Judge. A co-defendant, Kenneth Jones, was convicted of the same offence and was sentenced to imprisonment for public protection with a minimum of ten years.

The facts underlying the conviction are as follows. Mr Jones had been sentenced to 11 years' imprisonment in 2005 for offences of raping and indecently assaulting his stepdaughters and affray. Whilst he was in prison, he met the appellant, who was serving a 12-month term for dangerous driving and associated offences. Mr Jones had become embittered by the fact that he found out that his estranged wife had formed a new relationship with another man (the victim in this case) and he was intent on bringing about the death of that man. He had previously solicited another inmate to commit the murder. In April 2005, he and the appellant began to pass notes to each other with the view to arranging that the victim be shot and that the co-accused pay over £5,000 in two tranches through the agency of his sister. The appellant was to make arrangements for the money to be collected by another man. They used the services of an inmate who was conveyed the notes between the two men. That inmate became aware of the fact that the shooting was to take place on 31st May 2005. He alerted the authorities. Both men were arrested. In interview, this appellant suggested that the go-between had lied. He denied any conspiracy. At trial he accepted most of the evidence of the go-between, but said that the agreement was to beat the man up, not to kill him.

He has seven previous court appearances for some 20 offences, mainly for motoring, dishonesty and also possession of drugs. When sentencing, the learned Recorder indicated that both the defendants would be sentenced on the basis that they were attempting to organise the death by shooting of the victim and that this appellant had already started to make the necessary arrangements outside prison for that to happen. In relation to the co-defendant, because of his previous convictions there was, under the Criminal Justice Act 2003, the presumption that he would pose a significant risk of causing serious harm to other people and it was thus that he was sentenced to a sentence of imprisonment for public protection. The co-defendant had four years to serve on his current sentence. When fixing the minimum term the judge indicated that a determinate sentence of 14 years would have been appropriate. He then halved it to seven years, that plus the four years making 11 years, but he made a slight deduction for totality, making a minimum term of ten years. The effect of that, it is argued, is that the determinate sentence for the conspiracy was 12 years. The judge also found no reason to distinguish between the two men in relation to their culpability. Accordingly thus this appellant received a sentence of 14 years.

The grounds of appeal are that the sentence of 14 years was manifestly excessive, having regard to the learned Recorder's own objective in passing a sentence upon him which was less severe then that passed upon his co-accused; the fact that the sentence of the co-accused was equivalent to 12 years; the fact that the appellant was a less reprehensible character than the co-accused and the fact that the co-accused was the instigator of the conspiracy.

Contrary to the submissions set out in the grounds of appeal, nowhere in the judge's sentencing remarks does he make mention of seeking to achieve a lesser sentence on the appellant than the co-defendant. When sentencing the two men, he made it quite clear that he saw no reason to distinguish between them in relation to the offence. However, the effect of the sentence passed on the co-accused, as has already been noted, was that of a 12-year equivalent determinate sentence, two years lower than this appellant. In our view, that ground of appeal, standing on its own, would not of itself materially assist the appellant. As the Single Judge rightly pointed out, the sentence in relation to the co-accused depended on the fact that it was personal to him; in other words the lengthy sentence he was then, and still is, serving. However, the final ground of appeal is that a distinction should be made because of the appellant's less serious record and his lesser role, the co-accused being the instigator and the co-accused having already attempted to recruit others to the conspiracy. An additional factor to note is that the co-accused is much older than the appellant, being 41 years of age (this appellant is 23 years), nearly double his age.

In our judgment, in addition to the distinction arising from the practical effect of the sentences passed on the two men, this appellant can also be distinguished as having the benefit of additional mitigation by virtue of the matters which have already been submitted before us. We have to look at his role in this case and consider whether, in the circumstances, a sentence of 14 years was too high. In our judgment, it was too high. We propose therefore to quash the sentence of 14 years and substitute a sentence of 11 years. The period (not specified) spent on remand in custody will of course count towards that sentence and to that extent this appeal against sentence is allowed.