R v Mark Nathan Dermott

Where fresh evidence establishes that inadequate legal advice prevented a defendant from pleading guilty at the first opportunity, the Court of Appeal may give the credit that would probably have been earned. This applies even where the original sentence was proper on the material before the sentencing judge. The court must assess whether a properly advised defendant would probably have pleaded guilty earlier. An inadmissible Legal Ombudsman report may nevertheless lead to the discovery of admissible underlying evidence and records. Fresh evidence requires a reasonable explanation for its earlier absence and must be capable of affecting the appeal. A sentencing guideline not in force when sentence was imposed should not be used to assess that sentence.

The applicant had pleaded guilty in the Crown Court at Liverpool to conspiracy to supply cocaine, possession of two firearms and possession of ammunition. On 26 February 2020, His Honour Judge Watson imposed a total sentence of 19 years and six months’ imprisonment, including 25 per cent credit for the guilty plea.

After a delay of three years, eight months and eight days, the applicant renewed his application for leave to appeal against sentence. He relied on alleged inadequate legal advice about the timing and effect of a guilty plea and about challenging his role in a possible Newton hearing. He also challenged the sentence starting points, totality and disparity with a co-defendant. The central issues were whether time should be extended, whether fresh evidence should be admitted, and whether the sentence should be reduced.

1. Extension of time and leave. The delay was exceptionally long, but the particular circumstances, including the investigation by the Legal Ombudsman and difficulties contacting the applicant, made it in the interests of justice to extend time. The renewed application for leave was granted because the material uncovered raised a proper issue about whether the applicant had been adequately advised at the Magistrates’ Court [44]-[45].
2. Fresh evidence. The Legal Ombudsman’s report was excluded as inadmissible opinion evidence. The court admitted the applicant’s evidence, contemporaneous attendance notes and records, the appeal bundle and a later report from the former solicitor, although the latter was given little weight. The evidence was capable of belief, might afford a ground for reducing sentence, would have been admissible below, and there was a reasonable explanation for its earlier absence [46].
3. Other sentencing grounds. The 21-year starting point for the serious cocaine conspiracy was not manifestly excessive. The judge was entitled to impose nine years for the two functioning pistols and viable ammunition, and to make the firearms sentence consecutive. The current sentencing guideline was not in force when sentence was imposed and was therefore disregarded. The reduction from a notional 30 years to 26 years for totality was proper [47]-[49].
4. Early guilty plea. The evidence established that the applicant had not been advised at the Magistrates’ Court that pleading guilty to all the offences then would attract 33 per cent credit rather than 25 per cent credit at the later hearing [50]-[54]. Although the applicant’s recollection was affected by the passage of time, his full declaration of guilt to his solicitors within seven days meant that it was more likely than not that, with proper advice, he would have pleaded guilty at the first opportunity [55]-[56].
5. The sentence had been proper on the material available to the sentencing judge. Nevertheless, the fresh evidence justified correcting the lost guilty-plea credit. The sentence on count 1 was reduced from 13 years and six months to 11 years and four months. The remaining sentences were left undisturbed, reducing the total sentence from 19 years and six months to 17 years and four months [57]-[60]. The court emphasised the importance of accurately completing the Better Case Management Form and ensuring that the issue of guilty-plea advice is properly examined [61].

• Court of Appeal (Criminal Division) — The court extended time, granted leave, admitted relevant fresh evidence while excluding the Legal Ombudsman’s report, and reduced the sentence from 19 years and six months to 17 years and four months.
• Crown Court at Liverpool — On 26 February 2020, His Honour Judge Watson sentenced the applicant to 19 years and six months’ imprisonment following guilty pleas.