England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		11 December 2013

1. JUDGE LEONARD: On 17th April 2013 in the Crown Court at Manchester Minshull Street, the appellant aged 22 and of previous good character pleaded guilty to theft and to possession of MDMA, a class A drug, with intent to supply. The sentencing process with regard to the charge of theft was straightforward and he was sentenced eventually to four months' imprisonment concurrent to the sentence imposed for the drug offences and is not the subject of this appeal.
2. The sentencing process in respect of the drugs offences was anything but straightforward but resulted in a sentence of 35 months. The basis of plea put forward on the day he pleaded guilty, that he was supplying drugs to friends at cost and on which he made no profit, was not accepted by the prosecution.
3. The matter was adjourned to 8th May when his first basis of plea was withdrawn. A new basis of plea was advanced, namely that he obtained drugs for a group of friends and was supplying to others but not for substantial gain.
4. He was due to be sentenced on 5th June. In mitigation it was advanced on behalf of the appellant that he supplied the drugs to others but without gain to him but simply to benefit from bulk purchasing for his friends and himself. The question of a Newton hearing to determine the basis on which the court would sentence arose and the judge told the appellant that, firstly, if he found that there was no financial gain the sentence would be 21 months and, secondly, if he found he was making money the sentence would be a starting point of 40 months and after credit, as the judge put it, 30 months. The judge said that the sentence would be imposed because "he would be in a significant role and not a lesser role".
5. The Newton hearing, mitigation and sentence was adjourned until 11th September. The appellant gave evidence and averred that he was not giving the other members of the syndicate the benefit of the wholesale price at which he was receiving the MDMA, but charged them a retail price from which he was able to fund his own drug habit for nothing.
6. The judge rejected the appellant's evidence and, largely on the basis of text messages downloaded from his mobile phone, found him to be "a small time drug dealer and not just a supplier amongst his friends for cost and a supplier to close friends, who he was texting, for costs." He described the appellant as a liar and would not accept that he was totally contrite as the pre-sentence report suggested.
7. The judge concluded that he had to lose half the credit that he got for his guilty plea, which from other remarks made by the judge meant a reduction from 25 per cent to approximately twelve-and-a-half per cent.
8. In his sentencing remarks the judge referred back to his original ruling that the starting point after a Newton hearing which went against the appellant would be a custodial sentence of 40 months and said:

"... which is just below the bottom of the bracket of the guidelines, category 3 a significant role, if you were a drug dealer. I said then falling into error that if you discount 25 per cent from that it would be 30 months, but I had not realised that of course in order for me to get to that position I would have to reject your evidence and you would have had a Newton hearing wrongly and you would not have been pleading guilty at the plea and case management hearing in a candid manner at all and your first mistake was of course stealing from your employers and doing this drug dealing for money, your second mistake having got yourself into this mess was not putting your hands up candidly and trying to put what your counsel calls the best spin on things, well it was not the best spin it was lies, so I am afraid that I am going to keep as an act of mercy to this low sentence of 40 months but you are going to get half of 25 per cent and that is a discount of five months."

9. Mr Knight has put forward in writing two grounds. First, that having given an express indication of sentence after credit is taken into account for the plea it was implicit that his credit could not be dissipated by losing the trial of the issue, especially as no witnesses were to be called at the Newton hearing other than the defendant himself. This gave rise, said Mr Knight, to a legitimate expectation on the appellant's behalf of what was, as he puts it, the worst case scenario if he was not believed.
10. Secondly, Mr Knight argued in writing that the judge failed to have sufficient regard to the appellant's personal mitigation. In giving leave the single judge wrote:

"It is arguable (a) that the judge's indication created a legitimate expectation on your part, rendering it wrong in principle for the judge to pass a higher sentence than 30 months without good reason; and (b) that a mistake on the part of the judge did not amount to a good reason."

We consider that the sentencing process was flawed from the outset. The judge ought not to have indicated on 5th June what he would pass as a sentence given alternative findings in the Newton hearing. To do so offends against the spirit and principles set out in R v Goodyear [2005] EWCA Crim 888. It may be thought to place undue pressure on a defendant not to contest the prosecution's case. Because of the way in which the judge put it on this occasion, the appellant and his counsel would have felt safe in the knowledge that if he contested the prosecution version of events and the judge found against him his sentence would only increase from 21 to 30 months.

11. We have difficulty thinking of any circumstances in which a judge ought to give an indication of sentence in advance of a Newton hearing, not only because the judge would find it hard to predict what basis he would be sentencing upon, but because he will not know to what extent he will need to reduce the amount of credit given for his plea. The Sentencing Guidelines Council Definitive Guideline on Reduction in Sentence for a Guilty Plea at paragraph 4.3(iv) states:

"If after pleading guilty there is a Newton hearing and the offender's version of the circumstances of the offence is rejected this should be taken into account in determining the level of reduction."

It follows that there is a wide discretion on the part of the sentencing judge as to the extent of the reduction to be given in these circumstances. While the time taken on the Newton hearing may be one factor, equally important may be how far the defendant's rejected version strayed from the prosecution's evidence.

12. We have considered the judgment of this court in R v Newman [2011] 1 Cr.App.R (S) 86, in which the sentencing judge gave a Goodyear indication which he revised at the sentencing hearing because he then realised that he would have to consider an indeterminate sentence and because he had not seen the pre-sentence report when he gave that indication. He gave the appellant the opportunity to withdraw his plea. The Court of Appeal held that having plainly fallen into error, had he remained with the indication he had given, he would have passed an inadequate sentence contrary to the public interest and he would have risked an Attorney General's Reference to the benefit of no one.
13. This was followed in the case of R v Sampson and Andrews [2011] EWCA Crim. 3226, where the judge gave a preliminary view that he could impose a suspended sentence based on what he then knew. At an adjourned hearing he passed an immediate sentence of imprisonment. This court held that there was no legitimate expectation because of the way that the judge had expressed himself.
14. In this case, the judge left no room for doubt in what he said to the appellant on 5th June and we consider he was thereafter bound by that indication. The appellant was entitled to decide whether to pursue a Newton hearing based on that indication and would have had a legitimate expectation that the maximum sentence which could be passed on him was one of 30 months' imprisonment. We judge this to be an exceptional case and there will be few, perhaps very few, cases where the appellant will be able to rely on legitimate expectation, given the decision of this court in Newman, and therefore to take advantage of a sentence below that which may have been appropriate.
15. We have considered Mr Knight's submissions that the judge failed to have sufficient regard to the appellant's personal mitigation in setting the starting point of 40 months before any reduction for his plea. We have looked at the Definitive Guidelines for drug offences and have taken into account the recent judgment of the President of the Queen's Bench Division in R v Dyer and others [2013] EWCA Crim 2114. Even on the appellant's own eventual basis of plea, which the judge rejected, there is little room for finding that a person in his position should fall outside that of having a significant role. At paragraph 6 of the judgment, the President said:

"Street dealers funding their own habit, or, perhaps, an extremely meagre living for food and the like are motivated by financial or other advantage and are not the same as those who, for example, are funded by friends to purchase for the group without any question of financial or other reward."

Having found that the appellant was acting, amongst other things, as a small-time dealer, we have no hesitation in concluding that his starting point was, as the judge put it, "merciful" and that in other circumstances there may have been little reason to take a starting point much below four-and-a-half years. A reduction from that starting point of 54 months to 30 months is more than sufficient to reflect the appellant's personal mitigation. It follows that we are not persuaded that the starting point was too high.

16. We will therefore reduce the appellant's sentence from 35 months to 30 months. To that extent this appeal is allowed.