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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Billy Joe (Aka William) Temple, R v  EWCA Crim 2511 (16 October 2008)
Cite as:  EWCA Crim 2511
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B e f o r e :
THE RECORDER OF WINCHESTER
(His Honour Judge Brodrick)
(sitting as a judge of the Court of Appeal, Criminal Division)
|R E G I N A|
|BILLY JOE (AKA WILLIAM) TEMPLE|
Wordwave International Limited
A Merrill Communications Company
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(Official Shorthand Writers to the Court)
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"In mitigation I take into account your plea of guilty, albeit at a very late stage in the proceedings. In your basis of plea you contend that it was not you who uttered the threats but you accept that the threats were made in your presence and that you went along with them and took full advantage of them in ensuring that [the complainant] was terrified and you did so in an attempt to obtain money from him.
The prosecution do not accept that part of your basis of plea. When the matter was aired before me on a previous occasion I indicated that I felt that whichever version was correct and whether or not you personally uttered the threats you went along with them and I therefore felt that a Newton hearing was unnecessary."
"The essential principle in relation to sentencing was that the judge must do justice. So far as possible the offender should be sentenced on a basis which accurately reflected the facts of the individual case. Where the defendant pleaded guilty on a factual basis different from that which appeared from the Crown's case, the responsibility for taking any initiative and alerting the prosecutor to the areas of dispute rested with the defence. If the Crown accepted the defendant's account a written agreement, signed by both advocates, should be made available to the judge, if possible before the acceptance of any plea or pleas. The judge was not bound by any agreement between counsel and was entitled of his own motion to insist on a Newton hearing (R v Newton (1983) 77 Cr App R 13). Where the prosecution disputed the defence version or where it was ignorant of facts raised by the defence the court should be notified in writing of the points in issue. If the defendant was denying that a specific criminal offence had been committed, the tribunal for deciding whether the offence had been proved was the jury and a Newton hearing would be inappropriate. Where the impact of the dispute on the eventual sentencing decision was minimal, a Newton hearing was unnecessary. Where a Newton hearing was appropriate it should be held immediately, unless that was impracticable for some reason. The defendant should be called to give evidence in support of facts which were exclusively within his knowledge. If he did not, then, subject to any explanation, the judge might draw such inferences as he thought fit from that fact. The judge might reject assertions advanced by the defence even if the Crown did not offer positive contradictory evidence. The judge was entitled to decline to hear evidence about disputed facts if the case advanced by the defendant was absurd or obviously untenable. If so, the judge should explain why he reached that conclusion."
Then the learned Lord Justice (as he then was) went on to deal with the situation in a Newton case.