England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Friday, 30th July 2004

1. LORD JUSTICE JUDGE: In these appeals, which we heard and decided earlier this week, we are concerned with what can compendiously be described as Newton hearings. Although the principle are clear, they are not always fully understood or applied. These appeals have therefore been listed together to enable this Court to repeat and emphasise general guidance about the procedure to be adopted where the defendant pleads guilty on a factual basis different to that which appears from the Crown's case, or, indeed, a study of the papers. In short, we are concerned with the process which will achieve the sentence appropriate to reflect the justice of the case where there is plea of guilty, but some important fact or facts relating to the offence which the defendant is admitting, of potential significance to the sentencing decision, are in dispute.
2. The essential principle is that the sentencing judge must do justice. So far as possible the offender should be sentenced on the basis which accurately reflects the facts of the individual case. In R v Newton (1983) 77 Cr App R 13 itself, Newton was charged with and pleaded guilty to very serious sexual offences involving his wife. As the law then stood, her consent provided no defence. It hardly needs saying that for sentencing purposes the difference between forced and consensual sexual activity was huge. It was therefore a classic example of an imperative need to establish the facts. To proceed to sentence without doing so, would have been productive of injustice. Lord Lane CJ identified one method of approach where there was a sharp divergence between the differing accounts of the offence:

"the second method which could be adopted by the judge in these circumstances is himself to hear the evidence on one side and another, and come to his own conclusion, acting so to speak as his own jury on the issue which is the root of the problem."

This is the Newton hearing. Inevitably, the relevant procedures have developed through subsequent decisions. We do not propose to cite any of them. They are fully summarised in Blackstone, Criminal Practice, 2004 edition at D18.2-D18.13, Archbold, Criminal Pleading Evidence and Practice, 2004 edition at 5-18 to 5-222, and Morrish and McLain, Crown Court Index 2004 under the chapter heading "Newton Hearings". Our judgment is confined to well established principles, which, unfortunately, are not consistently being applied.

3. The starting point has to be the defendant's instructions. His advocate will appreciate whether any significant facts about the prosecution evidence are disputed and the factual basis on which the defendant intends to plead guilty. If the resolution of the facts in dispute may matter to the sentencing decision, the responsibility for taking any initiative and alerting the prosecutor to the areas of dispute rest with the defence. The Crown should not be taken by surprise, and if it is suddenly faced with a proposed basis of plea of guilty where important facts are disputed, it should, if necessary, take time for proper reflection and consultation to consider its position and the interests of justice. In any event, whatever view may be formed by the Crown on any proposed basis of plea, it is deemed to be conditional on the judge's acceptance of it.
4. The Crown may accept and agree the defendant's account of the disputed facts. If so, the agreement should be reduced into writing and signed by both advocates. It should then be made available to the judge before the start of the Crown's opening, and, if possible, before he is invited to approve the acceptance of any plea or pleas. If, however, pleas have already been accepted and approved, then it should be available before the sentencing hearing begins. If the agreed basis of plea is not signed by the advocates for both sides, the judge is entitled to ignore it; similarly, if the document is not legible. The Crown may reject the defendant's version. If so, the areas of dispute should be identified in writing and the document should focus the court's attention on the precise fact or facts which are in dispute.
5. The third, and most difficult, situation arises when the Crown may lack the evidence positively to dispute the defendant's account. In many cases an issue raised by the defence is outside the knowledge of the prosecution. The prosecution's position may well be that they had no evidence to contradict the defence assertions. That does not mean that the truth of matters outside their own knowledge should be agreed. In these circumstances, particularly if the facts relied on by defendant arise from his personal knowledge and depend on his own account of the facts, the Crown should not normally agreed the defendant's account unless it is supported by other material. There is, therefore, an important distinction between assertions about the facts which the Crown is prepared to agree, and its possible agreement to facts about which, in truth, the prosecution is ignorant. Neither the prosecution nor the judge is bound to agree facts merely because, in the word currently in vogue, the prosecution cannot "gainsay" the defendant's account. Again, the court should be notified at the outset in writing of the points in issue and the Crown's responses. We need not address those cases where the Crown occupies a position which straddles two, or even all three, of these alternatives.
6. After submissions from the advocates the judge should decide how to proceed. If not already decided, he will address the question whether he should approve the Crown's acceptance of pleas. Then he will address the proposed basis of plea. We emphasise that whether or not the basis of plea is "agreed", the judge is not bound by any such agreement and is entitled of his own motion to insist that any evidence relevant to the facts in dispute should be called before him. No doubt, before doing so, he will examine any agreement reached by the advocates, paying appropriate regard to it, and any reasons which the Crown, in particular, may advance to justify him proceeding immediately to sentence. At the risk of stating the obvious, the judge is responsible for the sentencing decision and he may therefore order a Newton hearing and to ascertain the truth about disputed facts.
7. The prosecuting advocate should assist him by calling any appropriate evidence and testing the evidence advanced by the defence. The defence advocate should similarly call any relevant evidence and, in particular, where the issue arises from facts which are within the exclusive knowledge of the defendant and the defendant is willing to give evidence in support of his case, be prepared to call him. If he is not, and subject to any explanation which may be proffered, the judge may draw such inferences he thinks fit from that fact. An adjournment for these purposes is often unnecessary. If the plea is tendered late when the case is due to be tried the relevant witnesses for the Crown are likely to be available. The Newton hearing should proceed immediately. In every case, or virtually so, the defendant will be present. It may be sufficient for the judge's purpose to hear the defendant. If so, again, unless it is impracticable for some exceptional reason, the hearing should proceed immediately.
8. The judge must then make up his mind about the facts in dispute. He may, of course, reject evidence called by the prosecution. It is sometimes overlooked that he may equally reject assertions advanced by the defendant, or his witnesses, even if the Crown does not offer positive contradictory evidence.
9. The judge must, of course, direct himself in accordance with ordinary principles, such as, for example, the burden and standard of proof. In short, his self-directions should reflect the relevant directions he would have given to the jury. Having reached his conclusions, he should explain them in a judgment.
10. Again, by way of reminder, we must explain some of the limitations on the Newton hearing procedure.

(a) There will be occasions when the Newton hearing will be inappropriate. Some issues require a verdict from the jury. To take an obvious example, a dispute whether the necessary intent under section 18 of the Offences against the Person Act 1861 has been proved should be decided by the jury. Where the factual issue is not encapsulated in a distinct count in the indictment when it should be, then, again, the indictment should be amended and the issue resolved by the jury. We have in mind, again for example, cases where there is a dispute whether the defendant was carrying a firearm to commit a robbery. In essence, if the defendant is denying that a specific criminal offence has been committed, the tribunal for deciding whether the offence has been proved is the jury.

(b) At the end of the Newton hearing the judge cannot make findings of fact and sentence on a basis which is inconsistent with the pleas to counts which have already been accepted by the Crown and approved by the court. Particular care is needed in relation to a multi-count indictment involving one defendant, or an indictment involving a number of defendants, and to circumstances in which the Crown accepts, and the court approves, a guilty plea to a reduced charge.

(c) Where there are a number of defendants to a joint enterprise, the judge, while reflecting on the individual basis of pleas, should bear in mind the relative seriousness of the joint enterprise on which the defendants were involved. In short, the context is always relevant. He should also take care not to regard a written basis of plea offered by one defendant, without more, as evidence justifying an adverse conclusion against another defendant.

(d) Generally speaking, matters of mitigation are not normally dealt with by way of a Newton hearing. It is, of course, always open to the court to allow a defendant to give evidence of matters of mitigation which are within his own knowledge. From time to time, for example, defendants involved in drug cases will assert that they were acting under some form of duress, not amounting in law to a defence. If there is nothing to support such a contention, the judge is entitled to invite the advocate for the defendant to call his client rather than depend on the unsupported assertions of the advocate.

(e) Where the impact of the dispute on the eventual sentencing decision is minimal, the Newton hearing is unnecessary. The judge is rarely likely to be concerned with minute differences about events on the periphery.

(f) The judge is entitled to decline to hear evidence about disputed facts if the case advanced on the defendant's behalf is, for good reason, to be regarded as absurd or obviously untenable. If so, however, he should explain why he has reached this conclusion.

11. The final matter for guidance is whether the defendant should lose the mitigation available to him for his guilty plea if, having contested facts alleged by the prosecution, the issues are resolved against him. The principles are clear. If the issues at the Newton hearing are wholly resolved in the defendant's favour, the credit due to him should not be reduced. If for example, however, the defendant is disbelieved, or obliges the prosecution to call evidence from the victim, who is then subjected to a cross-examination, which, because it is entirely unfounded, causes unnecessary and inappropriate distress, or if the defendant conveys to the judge that he has no insight into the consequences of his offence and no genuine remorse for it, these are all matters which may lead the judge to reduce the discount which the defendant would otherwise have received for his guilty plea, particularly if that plea is tendered at a very late stage. Accordingly, there may even be exceptional cases in which the normal entitlement to a credit for a plea of guilty is wholly dissipated by the Newton hearing. In such cases, again, the judge should explain his reasons.
12. We shall now address the individual appeals.
13. Kevin Underwood is now 55 years old. He was born in 1949. He had many court appearances, starting in 1973. The longest custodial sentence he had previously received was three and a half years' imprisonment some 20 years ago in January 1983. His most recent custodial sentence, before the matters with which we are concerned, was one month's imprisonment for possession of a controlled drug of class A. That sentence was imposed in December 2002.
14. On 15th August 2003 in the Crown Court at Peterborough before His Honour Judge Jacobs, the appellant pleaded guilty to two counts in an indictment containing a total, after amendment, of 24 counts. He pleaded guilty to count 23, offering to supply a controlled drug of class A, cocaine, and count 24, which was an amendment of the original count 17, and, again, was offering to supply a controlled drug of class A, diamorphine.
15. After a Newton hearing on 8th October before His Honour Judge Coleman, he was sentenced on 4th November 2003 to five years' imprisonment on each of these two counts to run concurrently. In the course of the proceedings an order had been made that count 11, another count alleging an offer to supply a controlled drug of class A, should remain on the file in the usual terms, and on count 22, an offence of being concerned in supplying a class A drug, the Crown offered no evidence. That decision is of importance to the outcome of this appeal.
16. There were three co-accused. Christopher John Penhall pleaded guilty to three counts of supplying a class A controlled drug and one count of being concerned in the supply of a class A controlled drug. He was sentenced to three years and six months' imprisonment on each count to run concurrently. Peter Travanti pleaded guilty to three counts of supplying a class A controlled drug and one count of offering to supply a class A controlled drug. He was sentenced to four years' imprisonment on each count to run concurrent. Jacqueline Hateley pleaded guilty to two counts of permitting her premises to be used for supplying a class A controlled drug, one count of being concerned in supplying a class A controlled drug and one count of supplying a class A. controlled drug. She was sentenced to three and a half years' imprisonment on each count to run concurrently.
17. This appellant appeals against sentence with leave of the single judge.
18. It is unnecessary to examine the facts in any great detail. The prosecution of these four defendants arose from a police operation, known as "Operation Laker", which began in Huntingdon in March 2003. The object of the operation was to target the sale and supply of class A drugs in and around Huntingdon at street level. The evidence was generated by the deployment of police officers working undercover and posing as drug users. Those officers were known as Kate, Jim and Holly. The operation took place between 20th March and 6th May 2003.
19. The four defendants were linked to each other. According to the Crown's case, they shared a common interest in illicit class A drugs. The Crown's case in opening included these important words "There is no principal offender". The text continues to record that criminal behaviour was centred on the home address of the defendant Hateley, who moved into the address with her three children in December 2002. This appellant became her lodger. She had had a relationship with her co-defendant Travanti which came to an end by March 2003. The defendant Penhall was known by all of the three other defendants, and, on occasion, he was observed visiting Hateley's home address.
20. We can now come, very briefly, to the facts of the two counts in the indictment which affect this appellant. First we deal with count 17, which became count 24. On 8th April the undercover officer Jim telephoned the appellant. He arranged a £50 heroin deal; that was five wraps in £10 deals. The officer was told to go to Hateley's home address. As he, together with the female officer Holly, approached the address Underwood and Penhall left the house together and joined up with them. Penhall walked ahead of Jim, saying "Here", or something like that, before passing the drugs to him. Holly gave money to Underwood.
21. So far as count 23 was concerned, on 23rd April Holly telephoned Underwood asking about crack cocaine. He told her to telephone back in about ten minutes' time. She did so. He then invited her to Hateley's home address and gave her directions. Hateley answered the door and invited her in. She took the officer upstairs to Underwood's room, where Underwood was found kneeling on the floor chipping pieces off a rock of crack cocaine. He crashed the chip into little pieces before putting ash on the end of a pipe and placing crack cocaine on top. He then offered the officer the pipe to smoke. She refused, saying, "It's not for me, it's for my boyfriend". Hateley and Underwood both then smoked several pipes between them.
22. Then came a matter in dispute. The Crown's case was that during this period Underwood was dialling numbers for the officer in order to get some rocks of crack cocaine and he dialled the numbers, indicating that he was getting an answer phone, and then, when he spoke to another person, he was told that he would have to wait for 45 minutes. The officer waited with the appellant for about an hour, but left before any supply could be arranged or took place.
23. All four defendants were arrested on 16th June. In interview this appellant made no comment.
24. Returning to the indictment: on four counts in the 23 count indictment guilty pleas were offered by him to two counts. The basis of plea was put verbally to counsel for the prosecution with an undertaking from counsel for the defence to put it into writing. In due course count 17 was replaced by count 24. The written basis of plea, signed by counsel for the appellant, reads:

"The basis of the defendant's plea to counts 17 and 23 of the Indictment herein is as follows:- Count 17 [then in handwriting beneath it 'count 24'] -- the defendant has entered a plea of guilty to offering to supply diamorphine to a test purchase officer, 'Jim', in consequence and within the context of the evidence of the telephone conversation recited by 'Jim' at page 97, lines 7 to 10 of the prosecution bundle. The offer to supply was made by one user the heroin to help a fellow user and/or addict and not on a commercial basis. In consequence of his conduct, the defendant profited not at all, either in cash or in kind."

25. Pausing there, that basis of plea is entirely uncontentious. There is no dispute of fact whatever. The text makes clear that the conversation recited by the undercover police officer is accepted, and the purpose of this basis of plea was simply to assert matters of mitigation.
26. As to count 23, the basis of plea reads:

"The defendant has again entered a plea of guilty to offering to supply, on this occasion 'crack cocaine'. The offer was made to a test purchase officer, 'Holly', within the circumstances described by her at page 144 of the prosecution bundle, lines 4 to 10, and rejected. Thus the context of the offer is a user of 'crack' offering a perceived fellow user a pipe containing (inter alia) the drug to smoke within a purely social setting with only one other user present, who later made an identical offer, similarly rejected. Again, the offer to supply was not upon a commercial basis and being part of purely social intercourse as described by 'Holly', again profited the defendant not at all, save perhaps simply in social terms."

27. The Crown did not accept the basis of plea insofar as it related to count 23 and sensibly asked for time to consider whether a Newton hearing would be needed. The judge expressed some reservations about the proposal, but the pleas to the four counts involving this appellant were approved. When the basis of plea was eventually reduced to writing, counsel for the Crown required a Newton hearing in relation to count 23. The issue which concerned the Crown was whether the appellant simply offered the investigating police officer a pipe to smoke, or whether his activity extended more widely to telephone calls which demonstrated, as the undercover woman police officer indicated, that he was close enough to the sources of supply to obtain crack cocaine if he needed or wished to do so.
28. If that was the single difference of view, we doubt the value of a Newton hearing at all. The dealings between the undercover police officer and the appellant sufficiently demonstrated that he was close to a source of supply. The reasons advanced in support of this Newton hearing overlooked the stark fact that the Crown had already decided not to pursue the two further counts alleged against the appellant, and, in particular, had offered no evidence on the count of being concerned in supplying a class A drug. So, although like his co-accused committed for trial on a charge of conspiracy to supply class A drugs, the appellant was not convicted of conspiracy to supply drugs, nor being concerned in the supply of drugs over an identified period, nor even with the actual supply of drugs. There were offers to supply on two distinct occasions. The pleas accepted by the Crown may well have been unrealistic and the Crown may well have been unwise to accept them. Nevertheless, they were accepted and the appellant was to be sentenced on the basis of the counts to which he had pleaded guilty; in the result, therefore, two counts of offering to supply class A drugs.
29. On 12th September His Honour Judge Coleman sentenced Hateley, Travanti and Penhall. He had before him written bases of plea from each of those three defendants. In relation to Hateley the written basis read:

"Count 1

I accept that I suffered Kevin Underwood to supply heroin from my premises although I informed him on numerous occasions that I did not want him to do so. I was using heroin at the time and was dependent upon him for my drugs."

30. Then in relation to count 2:

"I accept that on two occasions I was involved in the supply of crack cocaine at my premises."

31. In relation to counts 12 and 16:

"I accept my involvement in these offences on the basis that I was made aware by the undercover officers that they required crack cocaine and I became involved in count 12 and count 16 to enable them to receive the drugs they had requested. Had I not been approached by them I would not have offered to assist. I did not receive any financial gain from these transactions."

32. So far as Penhall was concerned, his written basis of plea read:

"I plead guilty to count 17 on the following basis only."

Pausing there, it will be remembered that count 17 was the count in which Underwood was jointly involved with Penhall. We return to the basis of plea:

"The deal had been arranged by Kevin Underwood alone without my knowledge. I accept however what once officer Jim arrived, Kevin Underwood asked me to pass the package to Jim, which I did and said something like 'here'. This was my part of the supply and I plead guilty on that basis."

33. The judge passed sentence on Hateley, saying that he had taken into account the basis of her plea, and in sentencing Penhall he said that he would give effect to the basis of his plea.
34. The Newton hearing took place on 8th October. At the end of the Newton hearing the judge made findings which, as he said, were limited to the events set out in count 23 of the indictment, and, it will also be remembered, related, so far as the Crown was concerned, to a relatively narrow issue. The judge set out the facts and he came to the conclusion that the undercover police officer went to the address in question to obtain crack cocaine. He noted that when she had first telephoned the defendant he said he did not have anything. The judge made the remark that there was no evidence to gainsay this. When she said, "What about white?", a reference to crack cocaine, she was asked to phone back in ten minutes. She did so and she went to the house to find crack cocaine.
35. The judge concluded that she was offered a pipe. He then recorded:

"Hence the plea to count 23. It seems that the basis of plea is perfectly proper in that respect. There is nothing to gainsay that. She refused the offer. It was a social offer, and it was done by one addict (as he perceived) to another."

So that was the finding.

36. The judge also found that, during the course of these transactions, the defendant was seeking to obtain crack cocaine from people he knew could supply in the same way, as the judge put it:

"... as he would have tried to find a tyre from a supplier or distributor, and if he had got it, no doubt, although of course history does not relate, then it would have been supplied."

In other words, therefore, he went on to conclude that the Crown's case in relation to the telephone calls reported by the woman police officer was accurate. So far, so good.

37. The judge then recorded:

"The prosecution have of course addressed me about the role this defendant played in the drugs scene in Huntingdon. When I say the drug scene, it is of course the supply of class A drugs which Operation Laker was designed to detect and root out, and they were investigating (I quote) 'the supply of class A drugs' on what might be described rather colloquially as the drugs scene.

This defendant is said to be a user dealer. There is no dispute about that. It is conceded by the prosecution that there is no evidence that he profited from his dealings."

Then going to the end of his judgment:

"The defendant of course will be sentenced on count 23 in the way that the basis of plea has been tendered, but it is clear in my judgment his role overall goes further than that which is set out in count 23."

38. On 4th November the appellant came back before Judge Coleman for sentence. The judge said that he had to deal with the defendant individually, noting that he had to consider each case separately, that the context was that the appellant was one of several people who were arrested as part of the major operation in Huntingdon. The judge said:

"That said, of course, given what I know about the nature of the operation and the extent of dealing in that city/town deterrent sentences are, in my judgment, called for."

Those observations, of course, would have applied with equal force to the three co-defendants who had been sentenced earlier by the same judge.

39. The judge went on:

"It is clear from what I know about you, and from the Newton hearing which was conducted in my presence, that you are a user/dealer that you were, as might be described, a 'facilitator'."

Then these important words:

"You were clearly deeply immersed in the drugs scene in that city and you were closely connected with the ready supply of heroin and crack cocaine."

He then recorded that he had sentenced Hateley and Penhall on the basis of what he described as:

"... their connections with you. I heard much about them. What I heard about them and what I have heard about you, puts you, in my judgment, more deeply in this than they were, thus any sentence must be more severe."

In the result, therefore, the appellant was sentenced to five years' imprisonment, a year and a half longer than two of his co-accused and one year longer than the third of them.

40. In our judgment, in agreement with counsel for the appellant, this produced an unfortunate result. It is difficult to avoid the conclusion that the appellant was sentenced on a basis which went beyond the counts to which he had pleaded guilty. The judge's analysis may well have been right in fact. Nevertheless, he was not entitled to sentence the appellant on a basis which was not properly reflected in the outcome of the four counts on the indictment which affected the appellant himself. If the appellant was more deeply involved, the pleas should not have been accepted, and possibly, also, counts in the indictment should have been more specific. The Crown should not have invited the judge to conduct a Newton hearing. On the basis on which he was asked to do so, a Newton hearing was unnecessary. But the Crown should also have borne in mind, and perhaps drawn to the judge's attention, and if they had drawn to the judge's attention the judge should not have overlooked, that the Crown's case was that as between the four of these defendants there was no principal offender.
41. Moreover, the judge seems to have treated the written basis of pleas of two of the co-defendants, who had not given any evidence before him, as relevant to support the conclusions he reached adverse to the appellant. We do not think that any of this material was put to the appellant in the course of the Newton hearing, but, in any event, the documents themselves were not admissible in evidence against him.
42. In effect, therefore, our conclusion is that the defendant was sentenced for offences with which he was not in truth charged and which was inconsistent with the way in which the pleas were tendered and accepted. Accordingly, we conclude that the sentence on the appellant was excessive after his plea of guilty. Even allowing for the dispute of fact resolved by the judge against him in relation to the telephone calls, given the finding that he had made no profit and no commercial gain from his activities and reflecting broad justice without being constrained by the judge's sentences on the co-accused, we concluded that this sentence should be reduced to three and a half years' imprisonment.
43. Akinwale Arobieke. He was born in July 1961. He has a very long record for criminal offences. His last significant conviction before the matters with which we are concerned occurred in August 2001 when he was sentenced to 30 months' imprisonment for threats to kill. On 15th January 2003 in the Crown Court at Preston before His Honour Judge Slinger he pleaded guilty on rearraignment to 15 counts of harassment contrary to section 4 of the Protection from Harassment Act 1997, together with one count of intimidating a witness. The pleas were accented. 42 counts of indecent assault on males and additional counts of harassment and witness intimidation were ordered to lie on the file. Because he was on trial for other matters, of which he was eventually acquitted, he was not sentenced for these offences until 15th September 2003. On that date Judge Slinger sentenced him to a total of six years' imprisonment and made appropriate restraining orders in each case.
44. Arobieke now renews his application for leave to appeal against sentence after refusal by the single judge.
45. The essential facts can be briefly summarised. In September 12000 a complaint was made to the police about the applicant's relationship with youths in the area of St Helens. As a result 18 young men made complaints of harassment against him. His guilty pleas related to offences in respect of 16 of these youths. The pleas were acceptable to the Crown, which did not proceed with the counts of indecent assault. A written basis of plea was entered. The Crown's position was that they did not endorse the plea, but did not seek a Newton hearing.
46. The offences took place over a period of approximately three and a half years, from June 1997 to January 2001. The ages of the victims ranged from 14 to 17 years and the majority of the offences involved boys aged 15 and 16 years. In some cases the same boys were pursued over several years, although the harassment in a number of others lasted for much shorter periods.
47. They followed a similar pattern. The applicant would begin by approaching and some times appearing to befriend the complainants. He made them flex their biceps and felt their arms, chests and legs. He would ask them to lean over and perform squatting exercises while he rested his weight against their back or buttocks. He met the complainants when they were walking to and from school or work, or just out socially. They might be approached at any time of the day or night and would often by taken by the applicant to his car and required to perform these activities either in the car, or at some lonely area. Five of the complainants were harassed for a period exceeding three years, several of them somewhere in the region of two years and four of them from four months up to one year. Some saw the applicant daily, some saw him two or three times a week, but the common feature was that contact would resume after a break. No direct violence was used, but the applicant was a large and commanding figure who undoubtedly intimidated these young men. His conduct had an adverse effect on all of them and some suffered from depressive illness as well as fear. One gave up his job and tried to run away from home to escape the applicant's attentions.
48. One example of the applicant's activities in relation to a young man, we will describe as M, will suffice. M was harassed by the applicant for approximately two years. He would be stopped on his way to and from the gym. He was scared that the applicant would make enquiries about him after discovering whether he used a specific gym. He was subjected to what was described as "measuring" and made to carry out squatting exercises, together with "scarecrowing", for which he would be made to stand with his arms out stretched. When he did so, the applicant would lift him from behind. He was made to carry out these squatting exercises on over 15 separate occasions. The applicant developed a control over him which left this young man frightened, helpless, sick and dirty. As a result, although he had greatly enjoyed it, he stopped going to the gym and kept his head down; by which he meant he kept out of the applicant's way.
49. M was also the victim of the count alleging witness intimidation. In November 2000 the applicant came across him by accident and asked whether the police had spoken to him. He said to M, "I want you out of this. I don't want you involved any more. Better for you if you were not involved." He then asked M if M had signed a statement. He told him that if he had, he would get a copy of it and find out what M had said. He repeated that he did not want M involved. The context, and this is important, was that M had, of course, already been a victim of the prolonged harassment at the applicant's hands which we have already described.
50. The basis of plea in relation to the offence of harassment read:

"He accepts that his behaviour of touching and measuring muscles, together with the squat exercises, and his behaviour towards the complainants involve a course of conduct.

By his guilty pleas he accepts that this course of conduct as viewed by a reasonable person would amount to harassment.

He acknowledges that with hindsight this course of conduct does amount to harassment and that each complainant would be distressed and fear that violence would be used. At no stage did he intentionally go out to cause such distress or fear to the complainants or their families. He now accepts that a reasonable person would think that his conduct would cause the complainants to fear that violence would be used.

This behaviour stems from a genuine friendship and interest with these young men, sport and muscle development. Since the age of 18, this defendant has been engaged in such behaviour with other males. He now understands that such behaviour could be viewed as being strange. At no stage did he receive any overt sexual gratification from this course of conduct. It was genuine interest in muscle development but he now accepts that this obsessive and strange behaviour did cause distress.

The defendant does not accept any of the specific allegations that he verbally threatened violence against any of the complainants."

51. In relation to witness intimidation the written basis of plea was:

"The incident on 8th November 2000 where the defendant met M in St Helen's town centre was not premeditated by the defendant. It was a chance meeting. This complainant knew the other two males. They spoke for about 20 minutes. He accepts the thrust of what he is alleged to have said but denies any direct or indirect threat against the complainant B. By his guilty plea he now accepts that M would have felt intimidated at the time when the defendant said he did not want him involved in the investigation. This stemmed from the defendant's deep mistrust of the police and their motives. This belief should be viewed in light of the basis of pleas entered above. Further given the statutory provisions contained within section 51(7) of the Criminal Justice and Public Order Act 1994 the statutory presumption would operate thereby establishing the required intent under these provisions given the admissions made by the defence."

There is in the written basis of plea a good deal of unnecessary material, which is simply mitigation and does not contest facts alleged by the Crown.

52. This applicant has a lengthy criminal record. There are 23 previous court appearances recorded for some 38 offences, principally for offences of violence, offences relating to the police and offences of dishonesty. We have already recorded that his most recent conviction, before the matters with which we are concerned, occurred at Chester Crown Court on 3rd August 2001 when he was sentenced to 30 months' imprisonment for threatening to kill.
53. During his time on remand he was seen by a psychiatrist, but he declined to make the psychiatric report available either to the probation service or the court.
54. When the judge came to deal with the case he referred to the basis of plea, in particular, in view of the way in which the counts of indecent assault were accepted, that there had been no sexual element in what had occurred. He then said:

"As I have said, you claim not to have to verbally threatened violence, but there is a clear pattern from youth after youth that any attempt to put a stop to your behaviour either attempts by themselves or by their families was followed by conduct -- and I ignore anything for which there is no evidence that you were responsible -- which put them at fear. What is beyond dispute is that fear -- the effect upon them -- a consistent pattern in what they said. Attempts altering their daily lives to try to avoid you."

55. In our view, the judge was fully justified in the comments which he made. They were entirely consistent with the pleas of guilty. When he came to sentence, the judge meticulously summarised the offences and the effect on the respective victims. He decided that he should place the offences into three different categories: first, and most serious, those were harassment had continued for three years or more; second, medium length cases, up to two years, over two years and towards three years; and the third category, where the conduct had persisted between four and 12 months. He decided on the relevant levels of sentence and by means of consecutive and concurrent sentences arrived at a total of five years' imprisonment in relation to the harassment cases and one further year in relation to witness intimidation.
56. The judge expressed the view, in agreement with the author of the pre-sentence report, that the applicant represented a danger to young men. That was an entirely justified conclusion based on the circumstances of the offences, the applicant's previous record and, as we hold, by his refusal to allow psychiatric evidence obtained about him to be presented to the court. In our judgment, therefore, the judge's approach to the basis of plea was entirely correct.
57. The first matter we address is the consecutive sentence for witness intimidation. That is consecutive to the total sentence of five years for offences of harassment. That sentence was entirely justified. It is true that no direct violence was threatened and if that offence were to be reviewed in total isolation the sentence might well have been lower than 12 months. However, the context is that the witness was a young man who had already been victimised by the applicant and was already in fear of him. In those circumstances, the 12 month sentence was appropriate. We also conclude that the total sentence for harassment, although lengthy, is not arguably manifestly excessive, given the course of conduct and the large number of victims and the fear with which the appellant's intimidation instilled in them. In his careful approach to this sentencing exercise, the judge arrived at a total sentence which, in our judgment, cannot be challenged. This renewed application was, therefore, refused.
58. Mohammed Khan. He was born in October 1980. In July 2000 for offences of kidnapping and blackmail mail he was sentenced to four years' detention in a young offender institution. On 2nd March 2004, in the Crown Court at Birmingham before His Honour Judge Taylor, he changed his plea to guilty of robbery and admitted breach of a licence relating to that sentence. On the same occasion his co-accused, Winifred Hall, also changed her plea to guilty of robbery. On 7th April before His Honour Judge Taylor the appellant was sentenced to six years' imprisonment for robbery and one month's imprisonment consecutive for breach of licence. His co-accused was sentenced to four years' imprisonment.
59. This application for leave to appeal against sentence was referred to the Full Court by the Registrar. We granted him leave to appeal.
60. The essential facts were very simple. At around 1.30 a.m. on 13th October 2003 Hall was working as a prostitute in Hagley Road Edgbaston. She was picked up by the complainant. As he thought, he drove her to her home. In fact she took him back to the appellant's home. She asked the complainant to take his bags in, but he refused. He locked his car and went into the flat. The door was unlocked.
61. After entering the complainant removed his clothing. Something about the atmosphere disturbed him and he changed his mind, but just as he was going to put his clothes back on the appellant burst out of the kitchen, according to the complainant, holding a machete and extendable truncheon. The complainant was ordered to lie on the side of the bed. He refused to do so. The appellant struck on the left side of his face. Winifred Hall then took the complainant's car keys. His briefcase was removed from his car and his possessions, which included his credit and debit cards, were stolen. He was forced to give up his PIN number. His watch and necklace were also stolen. The complainant was then tied up loosely and the appellant and Hall left the flat, taking his clothes with them and leaving him naked.
62. The complainant managed to untie himself and tried to make his escape. He found that he was locked in. He broke a window with his foot and climbed out of it, hoping in that way to be able to descend to a lower ledge. He was unable to reach the lower ledge and for a time, and disconcertingly, was hanging out of a window some three stories high. Fortunately he managed to get back into the room from which he had escaped. Eventually he managed to prise open the front door. He found some of his clothes by the car, put them on and alerted the police. He had had a deeply distressing experience. He required hospital treatment for swelling and bruising to his face and cuts to his hands and feet. Quite apart from any injuries, he lost a number of very valuable papers, including his passport and birth certificate.
63. Hall was arrested on 21st October. The appellant was arrested on 22nd October. In interview he denied the offence. When the case was first listed neither the appellant nor Hall pleaded guilty. However, on 2nd March, he advanced a written basis of plea. The document was signed by the appellant at the hearing. It reads as follows:

"The defendant pleads guilty on the following basis.

The defendant had formed an association with the co-defendant and considered themselves to have moved beyond being merely a customer and prostitute. He had been waiting for the co-defendant at the flat. He did not anticipate his co-defendant returning with a client and was angry and upset when he saw the injured party. In anger he pick up the broomstick and struck the injured party with it once. This was not a premeditated robbery. They both then took the possessions of the injured party and left the flat."

64. The document was not signed by counsel for the Crown. There is, however, a note, initialled by Judge Taylor, which is added at the end of it:

"Prosecution submit it doesn't matter materially whether there was long term planning or not. They also submit a trial of the issue as to what the weapon was is not necessary bearing in mind the actual injuries caused in the attack and the fact that the cuts to the victim were caused when he was attempting to escape from the incident."

65. In Hall's case the basis of plea document had comments by prosecution counsel inserted on it. The comments were illegible and had to be interpreted for us by counsel. It read as follows:

"(a) ... I do not accept any premeditation in this offence. I had met with the injured party and we returned to the flat for sex as agreed.

[in script] Prosecution cannot gainsay.

(b) once at the flat I saw that Mr Khan was already there and he was upset that I had brought a client to the flat and he picked up a broomstick and assaulted the injured party.

[in script] Pros wit says machete/baton, but Newton hearing unnecessary as only injury was by one blow ... ; cuts caused by glass when escaping.

(c) we both took the possessions of the injured party and left the flat."

This document was signed by Hall and her counsel countersigned. Counsel for the prosecution did not sign that document.

66. There is, in the text we have read out, no reference to a factor to which reference was made in the course of the opening on behalf of the Crown before Judge Taylor when he dealt with the appellant's case on 7th April. Counsel for the Crown then said to him that she understood that on the earlier occasion the Crown had not sought to litigate the issue of the weapons carried by the appellant, bearing in mind that this particular victim was very worried about publicity.
67. There were important, but distinct factual issues disclosed by the written basis of plea by both defendants. First, whether the weapons carried by the appellant were a broomstick, as he asserted, or a machete and baton as alleged by the complainant. Given the natural reluctance of the victim to give evidence in a public court, the Crown's decision to let the sentencing decision proceed on the basis that the appellant undoubtedly was carrying a serious weapon, even if less terrifying than the weapons which he was alleged to be carrying, was entirely understandable.
68. Nevertheless, it is surprising that the issue of premeditation, or long term planning, was significantly diminished so that, as Judge Taylor recorded, the prosecution concluded that it did not "materially" matter. And, more important, that the prosecution could not "gainsay" the appellant's contention about premeditation, supported as it was by the co-accused.
69. The obvious inference to be drawn from the evidence, as we have narrated it, was that the prostitute took her customer back to the appellant's home so that he would be robbed; a plan which was then carried out. Such offences are commonplace. There is a significant difference in the sentencing decision between what we may describe as a standard prostitute/customer robbery and an incident which occurred because the assailant was driven wild with furry at the presence of a customer with his girlfriend.
70. Either Judge Faber or Judge Taylor, the sentencing judge, would have been entitled to decline to accept this part of the basis of plea, even if apparently agreed but not fully supported by the Crown. The Crown would not have had to call the complainant to give evidence in relation to that issue. The appellant and his co-accused could have given evidence before the judge which he could have accepted or rejected. Equally, this was a case in which the judge would, in our view, have been entitled to start from the proposition that this basis of plea was obviously untenable. If so inclined, of course, he would no doubt have told counsel for the appellant and the co-accused of the preliminary view he had formed and invited them to address him.
71. Unfortunately we do not know how Judge Taylor approached the problem. His sentencing remarks did not address the basis of plea at all, so we do not know whether he accepted the basis of plea in relation to premeditation, or rejected it. He said, rightly, that this was a particularly nasty offence involving injury and humiliation to someone who was expecting to have consensual sex, adding:

"This matter was very serious indeed and there is no need for me to say any more about it, other than to make you realise how appalling the courts regard this kind of behaviour."

72. We agree with all those observations. This was a particularly nasty offence. However, as we have noted, there is a significant difference between the nature of the offence as derived from the papers and the offence limited in the way that it was by the basis of plea. We think it probable that Judge Taylor passed sentence on the basis that the written basis of plea in relation to premeditation was nonsense. Unfortunately, he did not say so. There is, therefore, a distinct possibility that the appellant was sentenced on the basis that this was indeed a premeditated offence without the judge either giving appellant the opportunity to give evidence in support of his basis of plea, or, through his counsel, the chance to persuade the judge that it represented a tenable view of the facts.
73. We decided in these circumstances that the appellant should be sentenced on the basis of his plea. We think he is fortunate, but our reluctant conclusion is unavoidable. To reflect what for the victim, on any view, was a dreadful experience a substantial sentence was appropriate. However the sentence should be reduced from six years to four years' imprisonment. The sentence in relation to the licence period is unaffected.
74. James Connors. He was born in February 1984. He had been before the court previously on minor matters. He had never served a custodial sentence and, effectively, he was a young man of good character. On 7th October 2003 in the Crown Court at Leeds before His Honour Judge Benson he pleaded guilty on rearraignment to conspiracy to burgle and rob. The conspiracy alleged that he, together with Alfred Adams, between October and the end of November 2002, conspired to burgle dwelling houses and rob their occupants. A third member of the conspiracy was a man called Hanrahan. Adams failed to answer to his bail and a bench warrant was issued. Adams has not been arrested. Hanrahan was indicted for the same conspiracy, but he was sentenced in relation to substantive counts in separate proceedings a few months after the appellant. Both Hanrahan and Adams were much older than the appellant and, we were told, men with very substantial criminal records.
75. The appellant was sentenced to eight years' detention in a young offender institution. A document described as "basis of plea" was produced to the court and signed by him. This was a helpful document, indicating the very large number of substantive offences in which the appellant was involved in the conspiracy to burgle and rob. Beyond that, the written basis of plea, in our view rightly, made no assertions about matters of personal mitigation. These were reserved for and developed in the course of counsel's plea in mitigation. We commend counsel's approach. There was no dispute about any of the essential facts relating to this crime. Therefore, nothing in the form of a Newton hearing was required.
76. When Hanrahan pleaded guilty on the later date, he pleaded to a number of specific offences of robbery and burglary and was sentenced to nine years' imprisonment.
77. This was very serious conspiracy in which elderly people were targeted by the conspirators, who entered their homes by tricking them, or by forcing their way into them. Having gained access, the main objective was cash savings. The average age of the victims was 80 years old, but one was 96 years old. The method was very simple. The conspirators would steal a car and change the number plate. On every occasion, save one, the role of the appellant was to drive the car. The target would be chosen and one or other of Adams or Hanrahan would pose as an official, for example from the water board, or as some contractor having some coverable excuse for knocking on the door. Whichever of them it was would seek to enter on the basis that they were working nearby and had some reason to enter the house.
78. The first of these robberies occurred on 5th November 2002. A lady aged 84 years old was alone at home. At lunch time she heard a knock. She opened the door and spoke to a man who posed as an installer of washing machines who was working at a nearby property. This man gained entry by pushing the lady aside. She gradually became aware of the fact that someone else was present in her house. She was asked for her pension book. She said that her son had that. After an untidy search upstairs, the two men left, saying they would be back. During that day seven further burglaries and an attempted burglary took place. All, as we have already narrated, involved elderly victims. The total amount of cash stolen was just under £3,000, but in the case of one victim, an elderly lady, she lost her wedding ring and some jewellery. This pattern of events continued on a number of days in November. Eventually the conspirators were arrested after a police chase on 25th November.
79. We must record two specific offences as part of this pattern. In one, on 16th November, the victim was a gentleman of 76 years of age who was already suffering from acute angina. While he was being robbed, he tried to stand up at one point and he was threatened with a fist by, as the Crown would say, Adams and forced to sit down again. His life savings of £1,300 were stolen, and when the police eventually arrived he had a severe attack of angina. He died some two months afterwards. On the same day a couple, aged 76 and 75, were threatened with knives which were taken from their kitchen after the conspirators had tricked their way into the home.
80. These were, as the judge said, very serious offences which had, again using the judge's word, "blighted" the lives of the victims. The judge accepted that none of the victims was directly injured during the commission of any of the offences, but recorded that force, trickery and intimidation had been used to gain entry into their homes. The team had deliberately targeted elderly and vulnerable people. The judge rightly recorded that, irrespective of whether the sums of money stolen were substantial, these particular victims would have suffered a serious sense of loss.
81. The position of the appellant needs a little closer analysis. At the time when the offences were committed he was still a very young man, it is to be said, of small build. The judge treated him effectively as a man of good character whose co-conspirators were much older and whose records suggested that they were indeed serious criminals. In mitigation on his behalf it was argued that this much younger man had been subjected to levels of intimidation and pressure by his older and more experienced co-conspirators who had prevailed on him to act as the driver. He himself had caused no injury or fear personally. He had taken no direct share of any of the proceeds. He was offered £50 or so on each of the days when he drove the car.
82. It was suggested that something of the level of intimidation exercised over him was illustrated by an incident which was said to have taken place in prison after he had pleaded guilty. He was coming under some pressure not to assist the police in their investigations and indeed not to attend court. We were told by counsel on his instructions that the appellant had suffered a fractured wrist when he was attacked, as he believed, by associates of Adams. For completeness, we have to record that this assertion was not supported by any references in the pre-sentence report and the writer did not record that any such complaint had been made to her.
83. It was further pointed out that this appellant was the first of the conspirators to plead guilty and he had done so on the basis that it would save the attendance of elderly complainants for whose distress he had begun to have some appreciation, not least because among his own community he was being ostracised for having committed offences against the elderly.
84. We have already recorded that we entirely agree with the judge's view that these were very serious offences and he was right to be deeply concerned about the level of misery which had been created among the elderly victims of these crimes. The judge concluded that the main mitigation available to the appellant was the fact that he had pleaded guilty and, of course, his age and comparative youth at the time when the offences were committed. The judge, of course, was not then in a position to set the culpability of Adams into context, nor indeed the direct culpability of Hanrahan.
85. We agree, therefore, that substantial sentences were called for. We were persuaded, however, that, given the appellant's youth, his lack of criminal sophistication, the actual role he played in those offences and the involvement of much older, hardened criminals in the conspiracy, as well as taking account of the nine year sentence of imprisonment imposed on Hanrahan, should lead to the conclusion that the eight year sentence should be reduced by two years to one of six years' detention. Accordingly, to that extent, we allowed the appeal.