R v Emmanuel Orlu

Where a sentencing judge does not hold a Newton hearing, the offender’s basis of plea must be accepted. The judge must then assess culpability consistently with that account under the applicable offence guideline.

In sentencing, the court must first determine the notional sentence after trial by weighing aggravating and mitigating features. Credit for a guilty plea is applied afterwards. Mental impairment reduces culpability only where it is sufficiently linked to the offending; otherwise it may remain important personal mitigation. Under the Sentencing Act 2020, credit for qualifying electronically monitored curfew must be directed where applicable.

The appellant pleaded guilty in the Inner London Crown Court to two robberies and possession of an offensive weapon. He had displayed a knife during the first robbery and implied that he had one during the second.

At sentence, he relied on a basis of plea that gang exploitation and debt had caused him to commit the robberies. A conclusive grounds decision had found that he had previously been a victim of modern slavery. The judge imposed concurrent terms, including three years’ detention in a young offender institution for the first robbery.

On appeal, the central issues were whether the judge could reject the basis of plea without a Newton hearing, the resulting assessment of culpability and sentence, suspension, and credit for time spent on electronically monitored curfew.

1. Appeal allowed. The court quashed the three-year sentence for the first robbery and substituted two years’ detention. The concurrent sentences on the second robbery and weapon count remained unaffected.

2. The judge was not entitled to reject the appellant’s account that, on the relevant morning, gang pressure and debt had led to the offending without holding a Newton hearing. If she wished to reject that account, fairness required that he be given the opportunity to give evidence and be cross-examined. In the absence of that hearing, she was bound to sentence on the basis of plea.

3. Accepting that account did not remove the appellant’s deliberate choice to use a knife. It nevertheless justified a lower assessment of culpability. The offence could either be placed in category B by balancing the knife as a category A factor against exploitation as a category C factor, or retained at the bottom of category A. Either route produced a starting point of four years.

4. The appellant’s cognitive impairment was not sufficiently connected to the robberies to reduce culpability. It, together with youth and immaturity, was substantial personal mitigation. The judge also erred by giving guilty-plea credit before making the adjustment for mitigation. A notional post-trial sentence of three years, reduced to two years for the guilty plea, was appropriate.

5. Immediate custody remained appropriate. The statutory six-month sentence for the knife offence was not unjust, and the court was not persuaded that suspension could properly achieve appropriate punishment.

6. The court also directed, under section 325 of the Sentencing Act 2020, that 126 days for qualifying electronically monitored curfew be credited, alongside 229 days on remand. The record was to be amended accordingly.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence, quashed the three-year term for the first robbery and substituted two years’ detention.
• Inner London Crown Court: On 31 May 2023, imposed concurrent sentences of three years’ detention for the first robbery, two years for the second robbery and six months for possession of an offensive weapon.