5.5 Sentencing - hearings 1

Question 1

Newton (1982) 77 Cr App R 13

Answer 1

Newton (1982) 77 Cr App R 13

Principle: Where the prosecution and D disagree on the factual basis of plea, the judge must proceed on the basis most favourable to D or hear evidence on the disputed issues if they will make a material difference to sentence.

Facts: D pleaded guilty to buggering his wife. He claimed that she consented, which the prosecution and his wife disputed. The trial judge sentenced D on the basis of no consent.

Held: D was entitled to a hearing (“Newton Hearing”) on the facts.

Question 2

On what three types of factual basis can D be sentenced?

Answer 2

1. Conviction after a NG plea;
2. Guilty plea on a ‘full facts basis’;
3. Guilty plea but disputed facts.

Question 3

When should the magistrates court conduct a Newton hearing?

Answer 3

Warley Magistrates Court ex parte DPP [1998] 2 Cr App R 307

1. Conduct a Newton hearing where necessary to decide whether to commit D for sentence;
2. Don’t conduct a Newton hearing where D will be committed either way - let the Crown Court conduct it.

Question 4

What are the stages in coming to an agreed factual basis?

Answer 4

1.
D signs a written basis of plea;
2.
Counsel for D asks the prosecution to agree the basis and sign it;
3.
If the prosecution agrees, ask the judge to sentence on that basis.

Question 5

Where D pleads guilty on a disputed factual basis, what must the court do?

Answer 5

1.
Decide whether the basis of plea is "absurd" and sentence on the prosecution's evidence if so (Kerr (1980) 2 Cr App R(S) 54);
2.
if the basis is not absurd, will D's account make a material difference to the sentence? (Bent (1986) 8 Cr App R(S) 19)
(a)
If not, sentence on the defence basis;
(b)
If so, hold a Newton hearing.

Question 6

Where is the burden of proof in a Newton hearing?

Answer 6

Ahmed (1984) 6 Cr App R(S) 391

On the prosecution. The criminal standard.

Question 7

What happens where D is convicted after a NG plea but there is uncertainty regarding the jury’s accepted factual basis of conviction?

Answer 7

Stosiek (1982) 4 Cr App R(S) 205
It is for the judge to assess based on the evidence seen by the jury. He is not obliged to accept the least serious construction but must be “extremely astute” to give the benefit of the doubt to D.

Question 8

What can Newton hearings not be used for?

Answer 8

Sentencing D on the basis that:
1.
D in fact committed a more serious offence than that found at trial (Courtie [1984] AC 463);
2.
that D committed other offences (Huchison [1972] 1 All ER 936).

Question 9

What are the four key stages in sentencing?

Answer 9

1.
Establish the factual basis of the conviction;
2.
The prosecution opens with the facts, makes submissions and applications;
3. 
The defence mitigates;
4.
The judge passes sentence.

Question 10

Who can suggest an appropriate sentence to the judge?

Answer 10

The defence.

However, the prosecution is responsible for applying for orders: compensation; confiscation; or forfeiture.

Question 11

What is the best way for the prosecution to draw the court’s attention to the impact of the offence on the victim?

Answer 11

Perks [2011] 1 Cr App R(S) 66
The best way is via a victim impact statement from the witness. However, careful submissions by the prosecution counsel are permitted.

Question 12

When should a pre-sentence report be requested by the defence?

Answer 12

Ideally, after the basis of plea is decided and before the prosecution opens.

However, it can be requested after the prosecution opens and before the defence mitigates.

Question 13

When must the court obtain a pre-sentence report?

Answer 13

Section 156 Criminal Justice Act 2003
The court must obtain a pre-sentence report before passing a custodial or community sentence,
unless
it considers it unnecessary to do so.

Question 14

Which statutory provision sets out the court’s duty to obtain a pre-sentence report?

Answer 14

Section 156 Criminal Justice Act 2003

Question 15

How is a plea on a basis entered?

Answer 15

Either
1.
D replies “guilty” when arraigned and her counsel addresses the court indicating it is a plea on a basis, and hands the written basis up; or
2.
D replies “guilty on a basis” and counsel hands up the written basis.

Question 16

What are the prosecutor’s options when a basis of plea is offered by D?

Answer 16

1.
Accept the basis of plea and sign it;
2.
Reject the basis of plea and refuse to sign it; or
3.
Adopt the position that they cannot accept or reject the basis of plea because it contains matters outside of the prosecution’s knowledge.

Question 17

What should the defence so immediately if it thinks a Newton hearing is necessary but the judge does not order one?

Answer 17

Raise the issue - otherwise the defendant is unlikely to be able to argue on appeal that there should have been a Newton hearing.

Question 18

What is the downside for D of losing a Newton hearing, besides being sentenced on the basis of the prosecution’s facts?

Answer 18

D will lose some of her credit for her guilty plea. Typically half.