R v Nikola Baso

A hearing is a Newton hearing in substance only where the court must determine disputed facts that materially affect sentence. Listing a hearing as a Newton hearing is not conclusive, and a hearing so listed may lack that substance. Judicial evaluation of factors relevant to role or culpability does not, without more, amount to factual determination. Where the dispute is dealt with solely through submissions, a prosecution response that merely puts the defendant to proof is insufficient to establish a Newton hearing. Materiality remains essential.

Counsel appealed under Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s assessment of his graduated fee as a guilty plea fee rather than a trial fee. His client had pleaded guilty to supplying a Class A controlled drug.

At sentencing, the prosecution did not accept the defendant’s basis of plea, which relied on debt, threats and a limited role. The sentencing judge determined the disputed matters through submissions rather than evidence, concluded that no full Newton hearing was required, and assessed the defendant’s role as lesser. The central issue was whether the sentencing hearing was, in substance, a Newton hearing attracting a trial fee.

1. The appeal was dismissed. The determining officer had correctly assessed the fee as a guilty plea fee. The hearing was not, in substance, a Newton hearing.
2. A Newton hearing does not depend on its listing or description. A hearing listed as a Newton hearing may not be one in substance, while a hearing not so listed may qualify. The essential question is whether the sentencing court had to determine disputed facts which materially affected the sentence.
3. Not every matter considered by a sentencing judge is a factual determination sufficient to meet that threshold. The judge may evaluate submissions about role, culpability and mitigation without making findings of disputed fact. A hearing conducted through submissions may therefore remain an ordinary sentencing hearing.
4. R v Robert John Newton established that, where there is a substantial factual dispute, the judge should take a lenient view by preferring the defendant’s account. That principle made the prosecution’s response relevant. Here, however, the prosecution principally said that the coercion and related matters were outside its evidence and did not accept the basis of plea. That was, in substance, putting the defendant to proof and did not itself create a Newton hearing.
5. The prosecution’s positive submission was that the quantity of drugs indicated that the defendant was a trusted person and therefore had greater seniority. The sentencing judge doubted the extent of that trust and expressly stated that it did not materially affect the overall conclusion that the defendant had a lesser role. The absence of materiality was therefore decisive.

The hearing involved evaluation of sentencing factors rather than determination of material disputed facts. A trial fee was consequently not payable.

The appeal was brought under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s assessment of the graduated fee. The High Court (Senior Court Costs Office) dismissed the appeal.