West, R. v

Where a sentencing judge rejects a defendant’s factual basis of plea and the disputed facts may materially affect sentence, the dispute should be resolved by a Newton hearing. The defendant should have the opportunity to give evidence and be cross-examined before adverse inferences are drawn. If that procedure is not followed, sentence should be passed on the basis admitted in the plea.

A written basis of plea should be endorsed with the observations of both the prosecution and the trial judge. This exposes material factual disputes in time for an appropriate hearing.

The appellant pleaded guilty at Cardiff Crown Court to conspiracies to supply heroin and cocaine, both Class A controlled drugs. He was sentenced to a total of four and a half years’ imprisonment.

His written basis of plea presented him as having a limited role in a drug-distribution operation. The prosecution later contended that he had been an organiser. The judge declined to hold a Newton hearing, rejected the basis of plea, and sentenced the appellant on a more serious factual basis.

The appeal concerned whether the judge could resolve that material factual dispute without a hearing and impose sentence on facts inconsistent with the admitted basis of plea.

1. Appeal allowed. The judge had decisively rejected the appellant’s basis of plea by finding that he controlled two drug-distribution houses and could direct other runners or delivery boys. Those findings placed the appellant in a materially more serious role than he admitted.

2. That factual dispute should have been resolved by a Newton hearing. The appellant should have been invited to give evidence. If he accepted, the prosecution could cross-examine him on the asserted circumstances of his involvement, and the judge could then draw appropriate inferences. The judge erred by determining the dispute solely on the available material without that process.

3. Since no hearing was held, the appellant should have been sentenced on the factual basis admitted in his plea. The court substituted a total sentence of three and a half years’ imprisonment, corresponding with sentences imposed on other defendants whose roles matched that basis.

4. The court also reiterated the guidance in R v Underwood [2005] 1 Cr App R(S) 478. A basis of plea should be written down and endorsed with the observations of the prosecution and trial judge. Proper observance identifies serious factual disputes and enables a Newton hearing to be directed where required.

• Court of Appeal (Criminal Division): Allowed the appeal and substituted a total sentence of three and a half years’ imprisonment: [2007] EWCA Crim 801.

• Crown Court at Cardiff: On 21 July 2006, imposed a total sentence of four and a half years’ imprisonment following guilty pleas to two conspiracies to supply Class A drugs.