R v Bergin

The prosecution should not accept unrealistic basis of pleas. Where they do, credit should not be reduced because of the delay caused

The appellant appeals against sentences totalling 3 years following his earlier pleas of guilty at the plea and case management hearing to two related offences, one of producing cannabis and the other of possession of cannabis with intent to supply.

On 22nd June 2013 the police attended the appellant's address and found a total of 90 cannabis plants with a street value of in excess of £30,000. When he was interviewed by the police he said that it was all for personal use.

In due course the appellant pleaded guilty at the plea and case management hearing. The written basis of plea was wholly unrealistic. Although it was initially accepted by the prosecution the Honorary Recorder was critical of the stance taken by the CPS and required an opening to justify that stance. Further evidence was obtained and a Newton hearing would have taken place but the appellant abandoned his original basis in advance of the date fixed for sentence. Thus the court was able to proceed to sentence on the basis that the appellant was producing cannabis for commercial purposes.

The Honorary Recorder imposed a total sentence of 3 years' imprisonment – 3 years and 1 year imprisonment to run concurrently.

Held, Whilst every case turns on its facts, we think that the appellant was entitled to the credit which a guilty plea at the plea and case management hearing would normally have attracted. It was the prosecution's approach to the plea which was to blame for the situation which had arisen. It may be that the Honorary Recorder gave less than the 25% credit to which the appellant was entitled. If he did, he took a starting point correspondingly lower than the 4 years from which we believe that he should have started. Either way, a total sentence of 3 years' imprisonment for this appellant's level of criminality, even taking into account his personal mitigation, cannot in our judgment be regarded as manifestly excessive or wrong in principle.

This situation is all too prevalent in the Crown Court. The appellant pleaded guilty at the plea and case management hearing on a basis which the prosecution were prepared to accept but which the judge regarded as wholly unrealistic. When the prosecution realised the error of its ways and served further evidence the appellant was duly sentenced on a full facts basis. We cannot over emphasise how important it is for the CPS to consider with care proposed basis of plea, whether or not they are realistic and whether or not they can properly form a basis for sentence. Once it is rejected, the basis of plea is frequently abandoned and, if not, a Newton hearing, which will frequently involve evidence only from the producer giving his explanation can and should take place there and then without the need for an adjournment.



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