R v Endrit Hoxha

An unchallenged or accepted basis of plea does not bind the sentencing judge. The court must seek to sentence on a true factual basis and may direct a Newton hearing where the proposed basis appears unreal or untrue. The prosecution’s agreement remains conditional on judicial approval. If approval is withheld after the issue has been tried, the defendant cannot insist on the earlier agreement. Findings and reasons may be given in sentencing remarks without a separate formal ruling, provided the judge’s conclusions are clear. The appeal against sentence was dismissed.

The appellant pleaded guilty in the Crown Court at Maidstone to possessing Class A and Class B controlled drugs with intent, contrary to section 5(3) of the Misuse of Drugs Act 1971. His written basis of plea stated that he had been the custodian of the drugs for one night and had held them on another person’s instructions. The prosecution did not challenge that basis.

At sentence, the Recorder considered the basis unrealistic or untrue, invited the appellant to give evidence and conducted a Newton hearing. The Recorder rejected the appellant’s account, found that he had played a significant role, and imposed 38 months’ imprisonment. The appeal concerned whether the Recorder had been entitled to sentence on that factual basis despite the prosecution’s non-challenge.

The appeal against sentence was dismissed. The sentence of 38 months’ imprisonment was upheld.

1. A written and signed basis of plea is a practical means of identifying what a defendant admits by pleading guilty. The prosecution must state whether it accepts the basis. If it is challenged, the issue should be tried before sentence by a Newton hearing, with evidence where necessary and findings of fact to the criminal standard.
2. The fact that the prosecution has not challenged, or has accepted, the basis does not require the sentencing judge to sentence on it. The judge must seek to sentence on a true basis and may direct a Newton hearing where the proposed basis appears unreal or untrue. The prosecution’s agreement is conditional on judicial approval; if approval is withheld, the defence cannot hold the prosecution to the agreement. These principles were identified in R v Beswick [1996] 1 Cr App R(S) 343.
3. The Recorder properly explained to the defence why the proposed basis was unacceptable, heard and tested the appellant’s evidence, and reached findings during his sentencing remarks. A separate formal judgment or ruling after the Newton hearing was unnecessary. The reasons showed that the appellant was not an organiser or direct seller but was an essential link in the supply chain and therefore played a significant rather than lesser role.
4. The Recorder had properly taken account of mitigation, including the absence of relevant previous convictions, caring responsibilities, good character and delay. No sentencing error was established.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence and upheld the sentence of 38 months’ imprisonment, [2024] EWCA Crim 1451.
• Crown Court at Maidstone: following the guilty pleas and Newton hearing, sentenced the appellant to 38 months’ imprisonment for the Class A offence, with no separate penalty for the Class B offence.