R v Daniel Mallinson & Anor [2026] EWCA Crim 358

This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2026] EWCA Crim 358Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Wednesday 4 March 2026
Before
SENIOR PRESIDENT OF TRIBUNALSLORD JUSTICE DINGEMANSMRS JUSTICE O’FARRELLRECORDER OF BRISTOLHIS HONOUR JUDGE BLAIR KC(Sitting as a Judge of the CACD)
Between
REXCrownV
Between
DANIEL MALLINSONANDREW BROWN__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR J DUFFY appeared for Appellant Mallinson.MS R RANDALL appeared for Appellant Brown._________JUDGMENTMRS JUSTICE O'FARRELL:
[1]On 29 July 2024 in the Leeds Crown Court, the appellants, Daniel Mallinson and Andrew Brown, both pleaded guilty on re-arraignment to offences of conspiracy to commit theft and transferring property. On 14 November 2025 the appellants were each sentenced by HHJ Khokhar as follows.[2]In the case of Mallinson: on count 1, conspiracy to commit theft, contrary to section 1(1) of the Criminal Law Act 1977, 2 years' imprisonment; on count 2, conspiracy to commit theft, contrary to section 1(1) of the Criminal Law Act 1977, 15 months' imprisonment concurrent; on count 3, transferring criminal property, contrary to section 327(1)(d) of the Proceeds of Crime Act 2002, 20 months' imprisonment.[3]In respect of Brown: on count, 1, conspiracy to commit theft, contrary to section 1(1) of the Criminal Law Act 1977, 2 years' imprisonment; on count 2, conspiracy to commit theft, contrary to section 1(1) of the Criminal Law Act 1977, 15 months' imprisonment concurrent; on count 4, transferring criminal property, contrary to section 327(1)(d) of the Proceeds of Crime Act 2002, 12 months' imprisonment. Thus as each sentencing offence was made to run concurrently each appellant was sentenced to a total of 2 years' imprisonment.[4]The appellants Mallinson and Brown each appeal against their sentences with the leave of the Single Judge.[5]The material facts can be stated shortly. The offending concerned two conspiracies to steal asphalt from Hanson Aggregates. Brown, Mallinson and a co-defendant, Ashley Wood, were involved in the first conspiracy and Brown, Mallinson, Wood and another co-defendant, James Vaux, were involved in the second conspiracy. Each of counts 1 and 2 comprised conspiracy to steal asphalt from Hanson Aggregates Ltd. Hanson is a leading company in the supply of aggregates for the construction industry for use in ready mix concrete, pre-cast concrete, brick and block manufacture and asphalt production.[6]Mallinson, Brown and Wood were employed by Hanson for various periods between June 2016 and June 2019. Mallinson was a plant supervisor, Brown was a weighbridge clerk and Wood was the mixture operator. They all worked at the Hanson asphalt plant located on South Accommodation Road in Leeds. In their respective roles the three men permitted external construction companies to load their wagons with asphalt stored at the site and leave without entering the removal of the material as a purchase, either accurately or indeed at all, onto the Hanson dispatch records. This prevented Hanson from issuing invoices for the asphalt or receiving payment for the material. Cash payments for the asphalt were made directly or through an intermediary to the appellants and to Wood. As a consequence of the two conspiracies Hanson suffered a loss in excess of £100,000. Count 1 covered a conspiracy between June 2016 to June 2019. Count 2 covered a conspiracy between May 2017 and January 2018.[7]The conspiracy came to light following an anonymous telephone call received by the general manager of Hanson on or about 1 May 2019. He engaged a firm of security consultants to investigate the issue and that investigation revealed that between May 2019 and 13 June 2019, 17 loads of asphalt had left the site with the load either being under recorded or not recorded at all.[8]The matter was reported to police who investigated the bank accounts of Mallinson, Brown and Wood and discovered a number of substantial cash payments.[9]Mallinson had bank accounts with Halifax and HSBC. Between June 2016 and June 2019 Mallinson's Halifax account received a total of £25,500 from HV Civils and Construction (the director of which was Vaux) and his HSBC account received a total of £14,165. The Halifax account also received £4,080 directly from Vaux. Between 25 October 2017 and 7 May 2019 cash totalling £13,485 was paid into the Halifax account.[10]Brown had two Lloyds Bank accounts. Between June 2016 and June 2019, one of those accounts received £13,665 from HV Civils and Construction and the other account received £10,980. Further, between December 2017 and June 2019, cash credits totalling £19,290 were paid into the first account, and between December 2016 and May 2019, cash credits totalling £22,030 were paid into the second account.[11]Mallinson pleaded guilty to transferring £91,868 knowing or suspecting it to represent a whole or part proceeds of crime (count 3). Brown pleaded guilty to transferring £71,856 knowing or suspecting it to represent a whole or part proceeds of crime (count 4). The prosecution accepted bases of plea in respect of the two conspiracies that limited the benefit of their offending to Mallinson and Brown to no more than £50,000 each.[12]A pre-sentence report dated 27 August 2025 was prepared for Mallinson in which the author proposed that if an immediate custodial sentence were not passed, a community-based sentence could be imposed with associative punitive conditions. Mr Duffy, counsel for Mallinson below and in this Court, produced a note for sentencing in which he accepted that a custodial sentence was inevitable but submitted that it could and should be suspended.[13]A pre-sentence report dated 29 August 2025 was prepared for Brown. The author of that report was concerned that Brown was not open about the full extent of his offending and stated that perhaps he was more regrettable of being caught in this behaviour rather than understanding the true implications on the business from which he had stolen, and considered that he was an individual who saw the financial reward as more of a benefit or entitlement to his employment rather than criminal behaviour. Despite that reservation, the author of the report stated that if the court considered stepping back from an immediate custodial sentence, Brown would be suitable for a standalone suspended sentence order with no requirements.[14]Both appellants produced a number of supportive letters of reference by way of personal mitigation. As with Mallinson, Ms Randall, who was counsel for Brown below and in this Court, submitted that although a custodial sentence was inevitable, it could and should be suspended.[15]At sentencing, the judge indicated that he intended to regard count 1 as the lead offence and make an upward adjustment to the length of that sentence to reflect the totality of the offending thereafter to pass shorter concurrent sentences on the other counts. He considered that there was no real distinction to be made between each appellant as to their role and responsibility for the conspiracy. The judge concluded that in the case of both appellants culpability was high (category A) because they played a leading role in the group offending and there was a breach of trust. As to harm, the judge concluded that the financial loss (as opposed to benefit) was somewhere between category 1 (above £100,000) and category 2 (£10,000 to £100,000). A category 1A offence has a starting point of 3 years 6 months' custody with a range of 2½ to 6 years. A category 2A offence has a starting point of 2 years' custody with a range of 1 to 3½ years. The judge took a starting point between those categories of 3 years. An aggravating factor was the sustained course of dishonest conduct over a number of years.[16]In mitigation Mallinson was of previous good character and Brown had no relevant recent previous convictions. Taking into account personal mitigation and the delay to the sentencing exercise, caused in part by the trial of their co-defendant Vaux, the judge adjusted downwards to 30 months before applying a credit of 20 per cent for the guilty pleas. This resulted in a total sentence of 2 years' imprisonment on count 1, with concurrent sentences imposed in respect of the other counts. Grounds of appeal[17]No criticism is made as to the general approach by the judge, the credit for the guilty pleas or the term of imprisonment, although concern has been expressed to this Court that the basis of plea which was accepted was that each appellant accepted a benefit of no more than £50,000. Nonetheless, this concerned two conspiracies plus the transfer of property and in those circumstances, no criticism can be made of the judge's starting point or the other factors involved in the sentencing exercise. It was accepted that the custody threshold had been passed. The sole ground of appeal by each appellant is that the judge erred in principle in failing to give any or any proper consideration as to whether the sentence of imprisonment could be suspended.[18]Mr Duffy, counsel for Mallinson, submits that in the circumstances of this offence and this offender, there were compelling reasons why the sentence ought to have been suspended. There was a realistic prospect of rehabilitation, in that the appellant had no previous convictions, was in full-time employment and there had been no further offending in the 6 years between the offending and the date of sentence. Further, there was a very low risk of reoffending or harm, there was strong personal mitigation and an immediate custodial sentence would result in significant harmful effect upon others, in particular, the appellant's grandmother for whom he helped care.[19]Ms Randall, counsel for Brown, makes the same submission on similar grounds. There was a delay of almost 5 years between the appellant's interview and his sentence. During that time he was in continuous employment and had not been arrested or been in any further trouble. A letter from his employer was uploaded prior to sentencing. The offending dated back to 2016 to 2019. In those circumstances, it was submitted that there was a realistic prospect of rehabilitation. Further, in the case of Brown, the appellant's wife had recently been diagnosed with skin cancer, the details of which were set out in the letter sent to the court. The appellant was a family man, with two 14-year-old children at home, one of whom suffered from significant mental health issues and who was particularly reliant upon him for support, again demonstrated in a letter sent to the court. He had no relevant or recent previous convictions. The pre-sentence report assessed him as presenting a low risk of reoffending and recommended a standalone suspended sentence order with no requirements. Discussion and conclusion[20]The judge did not refer to any of the factors that required to be taken into account as part of the balancing exercise when considering whether or not to suspend the sentence. In those circumstances, we consider whether this Court should interfere to consider afresh whether the sentences should be suspended.[21]When reviewing the sentencing exercise and remarks of the judge, it cannot be said that the judge did not have the possibility of suspending the sentence in each case because he suspended the sentenced for the co-defendant Wood, stating:
"The question in your case that arose in my mind, and it is this, whether I ought to suspend the sentence in your case. In cases of this nature, one considers imposition guidelines and I did in respect of the others. This is an offence where custody cannot be avoided but having said that, one additional element in your case, which is far more serious than in the cases of the others, is the dependency of your wife..."
On that basis, the judge decided he would suspend Wood's sentence of 18 months for a period of 2 years.[22]Similarly

the judge suspended the sentence of Vaux, stating:

"Again, in your case, the question arose as to whether this sentence should be made immediate custody or I should draw back, having regard to what I have read about you and your responsibilities which, to be fair, do not weigh as heavily as did in the case of Mr Wood. Nevertheless, having regard to the imposition guidelines, I am going to suspend the sentence for a period of two years."
[23]We note that in the case of both Wood and Vaux the judge decided, and we consider that he was entitled to conclude, that their offending merited a lower sentence based on a lower culpability and indeed a lower benefit to them. In those circumstances, there was a clear distinction drawn by the judge, with which we concur, between the appellants before us today and their co-defendants, Wood and Vaux.[24]Regarding these appellants although it might be inferred from the sentencing remarks that the judge decided that the seriousness of the offending in the case of Mallinson and Brown required an immediate custodial sentence, the judge did not state that in terms. We find that a strange omission given the submissions of counsel for both appellants urging the Court to consider a suspended sentence. It leaves the impression that the judge dismissed the notion of suspending the sentence in each case without considering or explaining the reason for that decision. Further, the judge did not refer to the sentencing guidelines considering the imposition of community and custodial sentences and whether he could properly suspend the offence in respect of the appellants.[25]The guideline states that if the shortest term commensurate with the seriousness of the offence is 2 years or less the court should consider whether it is appropriate to suspend that sentence and further in the guide, it states that the court should weigh the relevant factors below to consider whether it is possible to suspend the sentence.[26]In particular, in this case, the judge did not go through each of the factors that the guidelines indicate should be weighed when considering whether it would be possible to suspend the offence. In those circumstances, we consider that the Court should carry out that balancing exercise afresh.[27]In this case, there were factors that were indicative that the sentence could be suspended for Mallinson. There is a realistic prospect of rehabilitation in the community in that the appellant has no previous convictions and there had been no further offending in the 6-year period between the date of the last offence and sentence. The appellant does not present a high risk of reoffending or harm, as set out in his pre-sentence report. There is a strong personal mitigation, namely his contribution to care for his grandmother and he was in full-time employment supported by a reference from his employer. Finally, that immediate custody would result in significant harmful impact on others, in particular on members of his family.[28]There were also factors that were indicative that the sentence could be suspended for Brown. Again, there is a realistic prospect of rehabilitation in the community in that the appellant had no relevant recent previous convictions, and there had been no further offending in the 6 years between the date of offence and sentence, the appellant does not present a high risk of reoffending or harm, as set out in his pre-sentence report. There is strong personal mitigation, namely he was in full-time employment, supported by a reference from his employer and immediate custody will result in significant harmful impact on others, in particular, upon his wife who has recently been diagnosed with skin cancer.[29]However, the Court must balance against those matters any factors indicating that it may not be appropriate to suspend a custodial sentence. Of those factors there is one significant factor that indicated that, in this case, it would not be appropriate to suspend the custodial sentences in each case, namely the seriousness of the offence. In this case there was a serious breach of trust for substantial gain. There were two conspiracies. The conspiracies lasted for a period of between 2016 and 2019. The conspiracy, by its very nature, included the corrupting influence of the two appellants in this case on others around them, requiring them to join the conspiracy or turn a blind eye to the same.[30]In all those circumstances, the Court considers that the seriousness of the offending means that appropriate punishment can only be achieved by immediate custody. Therefore, although we consider that it is appropriate for this Court to carry out the exercise afresh, we conclude that an immediate custodial sentence was indeed the appropriate sentence for both appellants in this case. Accordingly, the Court dismisses both appeals. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk