R v Ndayishimye Shabani

A sentencing judge must not materially depart from an agreed basis of plea without notice to the parties. If the offender maintains the basis and the judge is minded to reject it, a Newton hearing is required unless the relevant assertion can properly be treated as manifestly false.

Resentencing must proceed on the accepted factual basis. A reduced assessment of culpability may reduce the custodial term, but it does not compel suspension. Immediate custody may remain necessary where an offender knowingly facilitates the movement and conversion of substantial sums suspected to be criminal property, and that conduct is essential to the criminal enterprise.

The appellant pleaded guilty in the Crown Court at St Albans to one count of money laundering and two counts of converting criminal property, contrary to sections 328 and 327 respectively of the Proceeds of Crime Act 2002. He received an overall sentence of 14 months’ imprisonment.

The sentencing judge treated the appellant as having understated his knowledge and involvement, notwithstanding an agreed basis of plea. The appellant contended that this departure was procedurally unfair because it was made without notice or a Newton hearing. He also challenged both the length of the sentence and the refusal to suspend it.

1. The appeal was allowed only to the extent of reducing the custodial term. The court quashed the 14-month sentence and substituted 11 months’ imprisonment. It upheld the decision that the sentence should take immediate effect.

2. The sentencing judge had materially contradicted the agreed basis of plea by finding that the appellant had understated both his knowledge and involvement. That finding was made without notice, evidence, or a Newton hearing. Applying R v Underwood [2004] EWCA Crim 2256, the court held that the basis could not properly be treated as manifestly false. If the judge was minded to disagree with it while the appellant maintained it, she should have directed a Newton hearing.

3. There was no reason to question the agreed basis. The appellant was therefore entitled to be resentenced on the footing that his culpability fell within the lesser-culpability category. That reduced the pre-mitigation sentence from approximately two years and three months to about 18 months. Previous good character and prison conditions, taken into account in line with R v Manning, reduced the post-trial sentence to 14 months and, after 20 per cent credit for the guilty plea, to 11 months.

4. Suspension remained inappropriate. The favourable factors, including good character, low assessed risk, absence of further offending and limited family support, were outweighed by the seriousness of conduct over several months. The appellant knew that large sums passing through his account were suspected criminal proceeds, converted some of them, and provided facilities essential to the enterprise and the resulting victim losses.

• Court of Appeal (Criminal Division)—allowed the sentence appeal to the limited extent of substituting 11 months’ imprisonment for 14 months: [2024] EWCA Crim 553.
• Crown Court at St Albans—on 8 February 2024 imposed an overall sentence of 14 months’ imprisonment following guilty pleas to money laundering and converting criminal property.