Davy, R v

Once a sentencing judge has commenced a Newton hearing to resolve a factual issue material to mitigation, the judge must fairly receive and consider the available relevant evidence. The evidence need not always be given orally. Where child welfare makes oral evidence unsuitable, the judge may receive the material by agreed means and consider it at its highest for the offender.

An appellate court may nevertheless dismiss a sentence appeal if, even accepting the excluded mitigation in full, the sentence remains one that was properly open to the sentencing judge and is not manifestly excessive.

The appellant pleaded guilty in the Crown Court at Carlisle to perverting the course of justice, forgery, using a false instrument and obtaining property by deception. She had fabricated allegations against her husband’s adult sons and had forged her husband’s signature to obtain credit and borrowings.

At sentence, the judge began a Newton hearing concerning mitigation that the appellant had feared her husband because of violence. The appellant sought to rely on evidence from their 11-year-old daughter. The judge declined to view the child’s video interview or hear her evidence because of concern for the child’s welfare.

With leave of the single judge, the appellant appealed against the resulting total sentence of 30 months’ imprisonment. The central issue was whether the judge had unfairly curtailed the Newton hearing and, if so, whether that error made the sentence manifestly excessive.

1. Appeal dismissed. The court held that the criticism of the sentencing judge’s procedure was well founded. The judge had identified a factual issue requiring a Newton hearing, but then excluded a material part of the available mitigation evidence.

2. A sentencing judge may reject mitigation as implausible without hearing evidence. This was not such a case. Once the judge had embarked on a Newton hearing, it was important to receive and consider the material that could properly assist the determination of the issue.

3. The welfare of an 11-year-old child was a proper and understandable concern. It did not require the issue to be left unresolved. The judge could have avoided calling the child by receiving the information by agreed means and taking it at its highest in the appellant’s favour.

4. The procedural error did not affect the proper sentence. The child’s evidence could have established only that she had witnessed parental arguments and two minor incidents of violence before discovery of the offences. Even if that evidence had been received and fully accepted, the court would not have imposed a sentence one day shorter.

5. The six-month sentence for perverting the course of justice and the concurrent 24-month sentences for the sustained dishonest conduct were not manifestly excessive. The total sentence of 30 months’ imprisonment therefore stood.

• Court of Appeal (Criminal Division): Dismissed the appeal against sentence, while holding that the Newton-hearing procedure had been unfairly curtailed.

• Crown Court at Carlisle: Following guilty pleas, imposed a total sentence of 30 months’ imprisonment.