Martin, R. v

A sentencing judge should not give an advance indication of sentence based on alternative findings at a Newton hearing. Such an indication may pressure an offender not to contest the prosecution case and cannot reliably account for the factual basis ultimately found or the appropriate reduction for a guilty plea.

Exceptionally, where an indication is clear and unqualified, an offender who elects to pursue a Newton hearing in reliance on it has a legitimate expectation that the stated maximum sentence will not be exceeded. If the offender’s account is rejected, the judge retains a wide discretion over guilty-plea credit. Relevant matters include the hearing’s duration and the extent to which the rejected account departed from the prosecution evidence.

The appellant, aged 22 and of previous good character, pleaded guilty in the Crown Court at Manchester Minshull Street to theft and possession of MDMA with intent to supply. The theft sentence was not challenged.

On the drug offence, the prosecution did not accept his initial basis of plea. Before a Newton hearing, the judge stated that a finding of no financial gain would produce 21 months’ imprisonment, while a finding that the appellant had made money would produce 30 months after credit for the guilty plea. After rejecting the appellant’s evidence at the Newton hearing, the judge imposed 35 months’ imprisonment, having reduced guilty-plea credit.

The appeal challenged whether the indication created a legitimate expectation that 30 months was the maximum sentence, and whether the starting point sufficiently reflected personal mitigation.

1. Appeal allowed to a limited extent. The sentence for the drug offence was reduced from 35 months to 30 months’ imprisonment.

2. The sentencing process was flawed from the outset. The judge ought not to have indicated in advance what sentence would follow alternative findings at a Newton hearing. That course offended the spirit and principles of R v Goodyear [2005] EWCA Crim. 888. It may place undue pressure on an offender not to contest the prosecution case. It is also difficult to predict either the sentencing basis or the proper reduction for a guilty plea before the hearing has occurred.

3. The Guideline on reduction for a guilty plea allowed a wide discretion where an offender’s account at a Newton hearing was rejected. The duration of the hearing could matter, but so could the extent to which the rejected account differed from the prosecution evidence.

4. On the particular and exceptional facts, the judge’s indication of 30 months was clear and left no room for doubt. The appellant was entitled to decide whether to pursue the Newton hearing in reliance on it. He therefore had a legitimate expectation that 30 months was the maximum sentence. The authorities in R v Newman [2011] 1 Cr.App.R (S) 86 and R v Sampson and Andrews [2011] EWCA Crim. 3226 did not alter that conclusion because their circumstances and the wording of the relevant indications differed.

5. The judge’s 40-month starting point was not excessive. Applying the distinction explained in R v Dyer and others [2013] EWCA Crim. 2114, a dealer who charged retail prices to fund his own drug habit obtained financial or other advantage and occupied a significant role. A 30-month sentence from a potential starting point of 54 months adequately reflected personal mitigation.

• Court of Appeal (Criminal Division): Allowed the sentence appeal to the extent of reducing the drug sentence from 35 months to 30 months’ imprisonment: [2013] EWCA Crim 2565.

• Crown Court at Manchester Minshull Street: Following guilty pleas, imposed 35 months’ imprisonment for possession of MDMA with intent to supply. The concurrent four-month sentence for theft was not challenged.