Andre Jordan Bell v R

On a guilty plea, a sentencing court need not hold a Newton hearing merely because facts are disputed. It may reject a defendant’s account without hearing evidence where the discrepancy has little sentencing impact or the account is absurd or clearly unreliable, but should explain its reasoning. A defence challenge to important prosecution facts should be made clear and a hearing requested.

When considering suspension, the judge must address the imposition guideline; suspension is not an unstructured discretion. Rehabilitation prospects, personal mitigation and family impact may favour suspension, but must be weighed against seriousness, risk, subsequent offending and licence compliance. Immediate custody remains proper where punishment cannot otherwise be achieved.

The appellant pleaded guilty at Liverpool Crown Court to possession of cocaine, possession with intent to supply cannabis, and possession of ketamine. Recorder Lasker imposed concurrent sentences, including 15 months’ imprisonment on the lead count.

The appeal challenged the sentence as manifestly excessive and argued that it should have been suspended. The central issues were whether disputed facts about intended financial gain could be resolved without a Newton hearing and whether suspension had been considered in accordance with the sentencing guidelines and the appellant’s circumstances.

1. Disposition. The appeal against sentence was dismissed.
2. Newton hearing. A factual dispute does not automatically require a Newton hearing. Under R v Underwood [2004] EWCA Crim 2256, the relevant guidance, and R v Mula [2017] EWCA Crim 32, a hearing may be unnecessary where the discrepancy has little effect on sentence or the defendant’s account is absurd or clearly unreliable. The judge should explain why the account is rejected. Under Crim PR 25.16(4), the court may give directions for determining the facts on which sentence must be passed; the rule does not make a hearing mandatory whenever facts are disputed.
3. The defence should make any challenge to important prosecution facts clear and should ordinarily request a Newton hearing. If a hearing is not requested and sentence is passed on the prosecution case, an appeal based on the factual basis of sentence may be difficult.
4. On the evidence, including the quantity and packaging of the cannabis, the messages on the appellant’s phone, the scales and bags, and the absence of evidence supporting his claimed source of funds, the Recorder was entitled to regard the account of supplying friends and family without significant financial gain as incapable of belief. He could therefore sentence on the basis of a significant role without hearing evidence from the appellant, although he should have stated his reasons more explicitly.
5. The sentence was not manifestly excessive. The guideline starting point was 12 months, with a range extending to three years. The extent of the dealing, previous convictions, breach of IPP licence conditions and the additional possession offences justified an increase. A notional sentence of 24 months before personal mitigation, reduced to 20 months and then by 25 per cent for the guilty plea, was within the range open to the Recorder.
6. Suspension. The Recorder should have addressed the imposition guideline. The decision whether to suspend is not simply an unstructured exercise of discretion. Although the prospects of rehabilitation, personal mitigation and adverse impact on the appellant’s family favoured suspension, the appellant presented an ongoing risk, had committed two further drug-driving offences, and had shown poor compliance with his licence conditions. Having regard to the seriousness of the offending, immediate custody was the only disposal capable of achieving appropriate punishment.

• Court of Appeal (Criminal Division): On 22 February 2023, dismissed the appeal against sentence. [2023] EWCA Crim 175
• Liverpool Crown Court: On 11 November 2022, Recorder Lasker imposed 15 months’ imprisonment on the lead count, with concurrent sentences of three months and one month on the other counts.