Montaut, R v

Where a defendant’s basis of plea is disputed, the sentencing court should not reject it without a Newton hearing unless the proposed basis would be immaterial to sentence or is manifestly false and does not merit evidential examination. This is especially important where disputed facts or mitigation may move the sentence across the threshold at which suspension becomes available.

When considering suspension, the court must make a real assessment under the applicable sentencing guideline. It must address both the factors favouring and those weighing against suspension. A conclusion that only immediate custody can provide appropriate punishment is inadequate if reached without that balanced assessment.

The applicant pleaded guilty in the Crown Court at Aylesbury to fraud contrary to section 1 of the Fraud Act 2006. He had caused tenants’ deposits to be paid into his company’s business account rather than a protected client account, and had submitted declarations that the deposits were properly held. The loss to landlords was approximately £70,000.

HHJ Rochford imposed 25 months’ imprisonment, after credit for a late guilty plea, and disqualified the applicant from acting as a company director for five years. The applicant appealed sentence. He contended that the judge had rejected aspects of his basis of plea without a Newton hearing and had failed properly to consider whether a sentence at or below two years should be suspended.

1. Appeal allowed. The court granted permission, quashed the sentence of 25 months’ imprisonment, and substituted 20 months’ imprisonment suspended for two years.

2. A judge should not reject a defendant’s basis of plea without a Newton hearing unless the proposed basis is immaterial to the contemplated sentence or is manifestly false and does not justify examination through evidence. Here the disputed matters, together with additional mitigation, might realistically have reduced the term below two years. The original sentence was at the cusp of the range in which suspension could be considered. The judge therefore needed the fullest available factual basis before sentencing.

3. The judge’s statement that suspension would not have been ordered was necessarily hypothetical. It also failed to address the Sentencing Council Definitive Guideline on Imposition of Community and Custodial Sentences. That guideline required consideration of factors both against and in favour of suspension. The applicant presented no risk or danger to the public, had no history of poor compliance with court orders, had a realistic prospect of rehabilitation, and had substantial personal mitigation. The prolonged delay in prosecution and the possible effect of custody on others were also relevant.

4. The custody threshold remained met. However, allowing proper weight to the mitigating and aggravating factors, the appropriate term was 20 months. Applying the guideline to the facts found by the sentencing judge, that term should be suspended. No additional community-related conditions were necessary because the applicant had already spent time in custody.

• Court of Appeal (Criminal Division): In [2019] EWCA Crim 2252, the court allowed the appeal against sentence, quashed 25 months’ immediate imprisonment, and substituted 20 months’ imprisonment suspended for two years.
• Crown Court at Aylesbury: On 20 August 2019, HHJ Rochford sentenced the applicant to 25 months’ imprisonment following his guilty plea to fraud, and imposed a five-year director-disqualification order.