Bergin, R v

A defendant who pleads guilty at a plea and case management hearing on a basis which the prosecution wrongly accepts will ordinarily receive the credit normally available for a plea at that stage. A modest further reduction may be justified where the defendant causes wasted work after the prosecution promptly identifies an unrealistic basis.

Prosecutors must scrutinise proposed bases of plea in accordance with their public duty. In cannabis-production cases, a personal-use basis must be tested against the scale and reality of the offending. A sentencing appeal succeeds only where the sentence is manifestly excessive or wrong in principle.

The appellant pleaded guilty in the Crown Court at Bradford to producing cannabis and possessing cannabis with intent to supply. Police found 90 cannabis plants, equipment for cultivation, packaged cannabis, scales and messages concerning drug dealing. The sentencing judge imposed concurrent sentences of three years and one year, producing a total of three years’ imprisonment.

The appellant appealed with leave of the single judge. He challenged the starting point and the credit allowed for his guilty pleas, particularly because the prosecution had initially accepted an unrealistic basis of plea which he later abandoned. The central issues were the proper credit for that plea and whether the total sentence was manifestly excessive or wrong in principle.

1. Appeal dismissed. The total sentence of three years’ imprisonment was neither manifestly excessive nor wrong in principle.

2. The appellant’s overall criminality was properly assessed by reference to the commercial production of a substantial crop of high-quality cannabis and his capacity to supply it at street level and in larger quantities. The possibility that a modest part of the crop was for personal use did not alter his role or the applicable category. A starting point of four years following conviction was appropriate, before mitigation and plea credit.

3. The court could not identify the sentencing judge’s precise starting point or percentage reduction for the plea. A plea at the plea and case management hearing in these circumstances would normally attract credit of up to 25 per cent. The appellant was entitled to that normal credit because he had pleaded on the basis that the Crown Prosecution Service, albeit wrongly, was prepared to accept. There was little more he could initially have done.

4. If the prosecution had promptly conceded that the basis was unrealistic, the later abandonment of it might have justified a modest reduction in credit to reflect wasted time and work. On the available sentence, however, any reduction below 25 per cent was matched by a correspondingly lower starting point. The final term was therefore proper.

5. The court stressed that prosecuting authorities must examine proposed bases of plea carefully and consistently with their public duty. Unrealistic personal-use bases in cannabis-production cases should not be accepted. If such a basis is rejected and not abandoned, a Newton hearing can and ordinarily should be held immediately without an adjournment.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence: [2014] EWCA Crim 1228.
• Crown Court at Bradford: on 27 January 2014, imposed concurrent sentences of three years’ imprisonment for producing cannabis and one year’s imprisonment for possession of cannabis with intent to supply.