R v Andre Byron Hewitt

Under the street-robbery guideline, the sentencing court should first select the appropriate category and may then set an initial point within the category range by evaluating the particular culpability and harm. A favourable finding after a Newton hearing may affect that assessment within the range; it need not change the category itself.

Equal sentences for joint participants are permissible where their roles do not disclose a disparity requiring separate sentencing treatment. A one-third credit for a guilty plea is generally confined to a plea indicated at the first stage of proceedings, normally in the magistrates’ court. An arithmetic error in applying an intended plea reduction should be corrected by substituting the sentence that gives effect to that intention.

Hewitt, Mulcare and a co-defendant were sentenced at Birmingham Crown Court for a robbery outside a nightclub. The victim, who was drunk and alone, was restrained and punched while an expensive watch was taken. Hewitt pleaded guilty after the plea and trial preparation hearing; Mulcare was convicted after trial.

The judge placed the offence in category 2B of the Sentencing Council Robbery Definitive Guideline (Street Robbery), adopted an initial point of three years, and arrived at four and a half years before credit for plea. Mulcare received four and a half years. Hewitt received 45 months after an intended 25% reduction, although that calculation was erroneous.

The appeals concerned categorisation, mitigation, parity between joint participants, credit for Hewitt’s plea, and the arithmetic error.

1. Hewitt’s appeal was allowed to the limited extent of correcting the arithmetic error. The sentencing judge had clearly intended to reduce four and a half years by 25%. That produces 40.5 months, not 45 months. The court therefore substituted a sentence of 40 months and two weeks.

2. The judge was entitled to classify the robbery as category 2B. Four punches to the head, restraint by the throat, and the vulnerability and isolation of the victim justified findings of more than minimal force and more than minimal harm. The judge properly treated the offence as towards the lower end of that category by selecting an initial point of three years.

3. The favourable finding at the Newton hearing, that no threat involving a knife had been made, was not ignored. Such a finding can materially affect sentence within the applicable guideline range even if it does not require a different category. The medium-culpability classification rested on force exceeding the minimal level, rather than on any weapon-related factor.

4. The judge had properly considered aggravation, mitigation, previous convictions, the victim’s targeting and vulnerability, the value and sentimental importance of the watch, and the personal material advanced for each offender. The resulting pre-plea sentence of four and a half years was neither wrong in principle nor manifestly excessive.

5. There was no unjustified disparity between Mulcare and Hewitt. Applying R v Hattherley [2009] EWCA Crim 1873, the court held that this was not a case in which differences between the joint participants’ roles required separate sentencing treatment. Mulcare had knowingly acted as a guard to prevent assistance being given to the victim and was a willing participant in the robbery.

6. The court rejected Hewitt’s renewed challenge to the 25% plea reduction. It also observed, without deciding the point, that a one-third reduction is not generally available merely because a plea is entered at the plea and trial preparation hearing; it applies to an indication at the first stage of proceedings, normally in the magistrates’ court. The court did not investigate whether exceptional circumstances justified the co-defendant’s one-third reduction.

• Court of Appeal (Criminal Division) — allowed Hewitt’s appeal only to correct the erroneous calculation of credit for his guilty plea; refused the renewed grounds advanced by Hewitt and Mulcare.
• Birmingham Crown Court — on 22 November 2019, imposed four and a half years’ custody on Mulcare and recorded a 45-month sentence for Hewitt after an intended 25% guilty-plea reduction.