Khan v R

A sentencing judge must not punish an offender for separate criminal conduct that has neither been admitted nor resulted in a conviction. That protection also limits the use of a Newton hearing where the conduct could itself sustain a separate charge.

However, disputed conduct may aggravate sentence where it was relevant to the charge tried by a jury, was specifically scrutinised at trial, is not inconsistent with the verdict, and is proved to the criminal standard. The sentence must nevertheless remain proportionate to the gravity of the offending.

The appellant was convicted by a jury at Worcester Crown Court of doing an act tending or intended to pervert the course of justice. He had offered a probation officer money while seeking a favourable pre-sentence report. In a later telephone call, he made threats after being told that another officer would prepare the report.

The telephone threats were admitted at trial to rebut his account that the offer of money had been a joke. Although a separate charge concerning the call was abandoned, the sentencing judge treated the threats and their effect on the officer as an aggravating feature and imposed three years’ imprisonment. The appeal concerned whether disputed conduct capable of forming a separate offence could be taken into account on sentence.

1. The appeal was allowed to the extent of sentence. The court upheld the judge’s entitlement to take the threats into account, but held that three years’ imprisonment was manifestly excessive.

2. The general rule remains that an offender should not be sentenced for criminal conduct which he has neither admitted nor been convicted of. Nor should a Newton hearing be used to establish conduct capable of sustaining a separate charge on which a jury could be asked to return a verdict.

3. The present case fell within a limited and different category. The threats were relevant to the offence charged and were specifically scrutinised during the jury trial. The appellant knew their relevance, challenged the evidence, and advanced an explanation for it. The jury were very unlikely to have convicted while accepting that explanation and rejecting the threats. Taking the threats into account was therefore not inconsistent with the verdict, and the judge could rely on them if satisfied to the criminal standard.

4. The court emphasised that this conclusion did not authorise a sentencing judge to determine an untried allegation merely because it might aggravate sentence. The decisive feature was that the aggravating conduct had been a specific issue at trial. The court contrasted a case in which an issue, such as lack of consent, had not been addressed before the jury.

5. The conduct was analogous to criminal contempt because it sought to influence a pre-sentence report writer within the criminal justice system. It was extremely serious, but an 18-month sentence was appropriate. The directions concerning the suspended sentence, community matters, and time spent on remand were left undisturbed.

• Court of Appeal (Criminal Division) — in [2009] EWCA Crim 389, allowed the sentence appeal to the extent of substituting 18 months’ imprisonment for three years.
• Worcester Crown Court — following jury conviction, imposed three years’ imprisonment and revoked an existing suspended sentence without making a further order on those matters.