The Director of Public Prosecutions v Giles

A Newton hearing is generally required where an offender disputes prosecution facts and the disputed version could make a material difference to sentence. Where disputed facts may establish homophobic circumstances under Criminal Justice Act 2003, section 146 imposes mandatory consequences: the aggravation must be considered and, if proved, stated in open court. Even where the sentencing effect might be immaterial, a hearing may still be required to determine whether the statutory circumstances existed. Cases in which section 146 circumstances are proved but make no material difference will be exceedingly rare.

The Director of Public Prosecutions appealed by case stated from the decision of justices at North Tyneside Magistrates’ Court. The respondent had pleaded guilty to assault occasioning actual bodily harm but disputed using homophobic language. The justices concluded that the alleged hostility would not materially affect sentence and sentenced him without a Newton hearing. The central questions were whether a court may dispense with such a hearing where the alleged section 146 aggravation would not significantly affect the sentence, and whether that approach was correct on the facts.

1. The appeal was allowed, the sentence was quashed and the matter was remitted to the magistrates’ court for re-sentence.
2. A Newton hearing is required where an offender pleads guilty but disputes the prosecution case and the offender’s version, if true, would make a material difference to sentence. The relevant comparison concerns materiality, not whether the difference would be significant or whether the custody threshold would already be crossed. This principle was reflected in R v Underwood [2004] EWCA Crim 2256 and the Criminal Procedure Rules.
3. The justices erred in treating the weapon as making the alleged homophobic hostility immaterial. Hostility capable of motivating the use of a weapon could amount to particularly serious statutory aggravation. The alleged abuse was capable of demonstrating hostility and was said to have been persistent and shocking.
4. Section 146 makes the relevant circumstances mandatory aggravating factors and independently requires the court to state in open court that the offence was committed in those circumstances. The court must therefore determine disputed facts to the criminal standard and decide whether the statutory circumstances are proved. Avoiding the victim’s evidence is not, by itself, a proper reason to dispense with the hearing.
5. If section 146 circumstances are proved, the court should ordinarily identify the sentence absent the aggravation, determine the increase required by the aggravation, and explain the analysis in its sentencing remarks. On remission, the magistrates should also consider delay, double jeopardy and the part-served sentence in deciding whether mitigation is required.

• High Court (Administrative Court): The appeal by case stated was allowed. The magistrates’ sentence was quashed and the matter was remitted for re-sentencing under Criminal Justice Act 2003, section 146.
• North Tyneside Magistrates’ Court: The respondent was sentenced without a Newton hearing after the justices concluded that the alleged homophobic aggravation would not materially affect sentence.