Mariscotti, R v

An offender who runs his own drug-dealing business performs a significant role, even where the business is small. Its scale should instead be reflected elsewhere when applying the sentencing guideline.

Following a Newton hearing, a judge will ordinarily allow submissions in mitigation after announcing factual findings. That procedure is not invariable where the judge already has sufficient information about mitigation. Any procedural unfairness may be cured on appeal if the appellant is given a full opportunity to advance the omitted mitigation and the court can conclude that it would not have reduced the sentence.

A failed Newton hearing will normally justify a reduction in the credit allowed for a guilty plea.

The appellant admitted five offences of possessing controlled drugs with intent to supply. He was committed by the Magistrates’ Court for sentence and received concurrent sentences totalling 32 months’ detention in a young offender institution at Snaresbrook Crown Court.

At a Newton hearing, the sentencing judge rejected the appellant’s account that he intended only non-commercial social supply. The judge found that he was dealing commercially, albeit on a small hand-to-mouth basis, and treated his role as significant. The judge then imposed sentence without a separate invitation to make mitigation submissions after announcing those findings.

The appeal challenged the significant-role assessment and, principally, the asserted failure to allow proper mitigation. The central issue was whether that procedural course, and the resulting sentence, made the sentence wrong in principle or manifestly excessive.

1. Appeal dismissed. The total sentence of 32 months’ detention was neither wrong in principle nor manifestly excessive.

2. The appellant’s role was properly classified as significant. A person running his own drug-dealing business cannot properly be described as having an insignificant role in it. The business’s small scale was relevant elsewhere in applying the guideline, consistently with the approach in R v Healey [2012] EWCA Crim. 1005.

3. There will generally be a pause after a judge announces findings at a Newton hearing so that mitigation can be addressed to those findings. The procedure is not invariable. It may be unnecessary where the judge has sufficient information about all relevant mitigation.

4. In any event, the Court of Appeal allowed counsel to advance all mitigation that would allegedly have been put below. The sentencing judge had the relevant reports, had heard the appellant’s evidence about his background and bereavement, and had read his letter. A further pre-sentence report would not have affected sentence for commercial dealing in several class A drugs.

5. No identified mitigation could have reduced the pre-plea sentence below four years. Further, the judge had allowed a full one-third guilty-plea reduction despite the rejected Newton hearing. The applicable guidance normally required that credit to be halved. That generous credit supplied further margin in the appellant’s favour.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence: [2018] EWCA Crim 962.
• Crown Court: Snaresbrook Crown Court imposed concurrent sentences totalling 32 months’ detention in a young offender institution on 10 November 2017.
• Magistrates’ Court: after the appellant admitted the offences on 17 October 2017, it committed him to the Crown Court for sentence.