R v Endrit Hoxha

This appeal raises the question of whether the correct procedure was engaged after a guilty plea was entered, following a written basis of plea agreed between the prosecution and the defendant, leading to an excessive sentence.

On 6 February 2024, in the Crown Court at Maidstone, Endrit Hoxha pleaded guilty (on the day of his trial) to offences of possessing a controlled drug of Class A with intent (cocaine) and possessing a controlled drug of Class B with intent (cannabis), both offences being contrary to section 5(3) of the Misuse of Drugs Act 1971. His sentence was adjourned to 27 March 2024 for the preparation of a pre-sentence report. On that date the appellant (who was then age 31) was sentenced by Recorder Jeremy KC to 38 months’ imprisonment for the Class A offence with no separate penalty in respect of the Class B offence.

The appellant’s appeal against sentence is focused on whether the Recorder wrongly failed to give effect to the written basis of plea when sentencing, when there was no challenge to that factual basis by the prosecution. Leave for this appeal was granted by the single judge.

At 7.30 am on 12 May 2021, the police attended at the King’s Head public house High Street in Rochester in order to execute a search warrant. The appellant was not the subject of that warrant, but he was found within the address. He was the sole occupier of one of the bedrooms, during the search of which drugs paraphernalia was found which included digital scales, a large clip seal bag containing a number of small tubes and a quantity of cash. A number of small packages of cannabis were also found in the room and underneath the bed was a large carrier bag inside of which was 890 grams of cannabis. In total, 977 grams (just short of a kilo) of cannabis were recovered, with a value of £5,470 to £14,600 depending upon the wholesale or street sale price. The appellant was searched and two clear bags were found within his pocket containing 25.37 grams of cocaine, valued at between £1,260 and £2,610. A sheath knife was also found in the room. After his arrest, the appellant made no replies to the questions he was asked in police interview. The appellant’s antecedent history includes two convictions for offences under the Public Order Act and the Road Traffic Act. He has no previous convictions for drugs offences.

The appellant made a “not guilty” indication when he appeared before the Magistrates’ Court and was sent for trial to the Crown Court at Maidstone. There was a significant delay in the proceedings from arrest in May 2021 until his trial was listed for hearing on 6 February 2024. At that hearing the appellant indicated he would plead guilty to the offences but on a written basis of plea in the following terms:

“Mr Hoxha will plead guilty to counts 1 and 2 on the indictment on the following basis.

1.

Mr Hoxha was the custodian of the drugs for that night only.

2.

Mr Hoxha did not sell any drugs to others but held the drugs found on instructions from another.”

The prosecution informed the court that it did not seek to contest the written basis, such that sentence was adjourned for the preparation of the pre-sentence report. The Recorder (who was not the sentencing judge) entered a note in the sidebar of the Digital Case System stating:

“Adjourn for PSR - all options. No indication as to sentence. Even on basis of plea custody threshold passed.”

On 27 March 2024, the appellant’s case was listed for sentence. After the prosecution opened their case, describing the facts of the offences for which the appellant was to be sentenced, counsel on behalf of the appellant began to make his plea and mitigation. During the course of those submissions the Recorder indicated that he did not accept the written basis of plea as being truthful or realistic.

On behalf of the appellant Mr Hunter, who appears before this Court and for whose submissions we are grateful, argued that the prosecution did not object to the written basis, such that the appellant should be sentenced in accordance with it. It was properly accepted by Mr Hunter that it was open to the court to refuse to accept the basis of plea. The Recorder invited the appellant to give evidence in order for there to be a trial of the issue known as a Newton hearing. The appellant gave evidence.

During his evidence, a transcript of which we have read, the appellant described that he had been allowed to stay in the room inside the public house for the night. He was a drug user and was under the influence of drugs at that time. He said in his evidence that whilst he accepted possession of the drugs whilst in the room, he did not know what they were. The effect of his evidence was therefore to establish that he was a mere custodian performing a lesser role within drug offending.

The prosecution cross-examined the appellant shortly and called no evidence, afterwards the Recorder asked the appellant a series of questions, all of which were appropriate, and identified inconsistencies in his account. Upon completion of the appellant’s evidence Mr Hunter continued his plea and mitigation.

The Recorder did not provide a judgment or ruling as a formal step but instead proceeded to sentence. He included within his remarks his conclusions and reasons upon the basis of plea. He accepted that the appellant was not acting as an organiser or director of the drugs supply, nor that he was selling directly to customers. The Recorder identified that there was evidence about which he was sure that the appellant was an essential part of the chain in between those two parts. The Recorder found that the appellant had been trusted to look after high value drugs together with the associated drugs paraphernalia, in expectation of significant financial reward. Accordingly, the appellant was aware of the scale of the operation and accordingly played a significant and not a lesser role. The Recorder then gave his reasons, based upon the evidence that he had heard in the Newton hearing:

“I gave you the opportunity to give evidence which you took, and you gave evidence to the effect that you had merely gone to that room the night before, that the items in the room were not yours, that apart from the cocaine that you had put down your shorts you didn’t know that the other drugs were there, you said you were staying in that room with a girl.

Now, that account is first of all not one that you gave to the police when you were arrested, you gave a ‘no comment’ interview. That account is contradicted by your basis of plea uploaded at digital case system where you said you were holding the drugs on the instruction of another.

I found your account to be not credible, you claimed that you didn’t know the surname of your girlfriend saying that you’d only known her two or three weeks; but you told the probation officer when you were interviewed by that person that you’d known the girl for six months off and on and that you’d met her through your sister, one of the sisters...so your account was not consistent, it was not credible, and I don’t believe it. You were going to gain significant financial reward for keeping those drugs and

you knew that they were in your room.”

The Recorder also stated that the appellant was a drug user and Class A drugs were found in the appellant’s pockets when he was arrested. After concluding that the appellant played a significant and not lesser role in the category 3 drugs dealing, the Recorder identified the starting point for sentence within the Drugs Guideline as 4½ years. The offence was aggravated by the fact that there were two drugs; the Class B cannabis drugs being treated concurrently with the Class A drugs which formed the lead offence for sentencing purposes. Further, it was an aggravating factor that there was a sheath knife found in the room where the appellant was arrested.

In mitigation, the Recorder found that there were no relevant previous convictions. The appellant was, to a large extent, the carer for his dependent father. There were letters of reference speaking of the appellant’s good character and there was significant delay in the proceedings, although the appellant had maintained his not guilty plea until the date of his trial. After a trial, the sentence would have been 42 months, being a significant reduction from the starting point of 54 months. The guilty plea discount of 10 per cent was allowed for the very late plea thereby reducing the sentence to 38 months, which is the subject of this appeal.

On behalf of the appellant, Mr Hunter, has argued that the basis of plea was not challenged by the prosecution. The appellant was in a room where the drugs were found for one night and he played a lesser role. It was not correct that he was to receive a significant reward other than for a night’s accommodation. It was substituted that the Class A drugs in his pocket were only there as a reflex when the police entered the room.

The provision of a basis of plea on behalf of a defendant when entering a guilty plea is practical procedure in our criminal courts, to establish what is being admitted by a defendant when pleading guilty. The importance of the practice of producing a written and signed document has been emphasised by this Court on previous occasions, the necessity for which, is obvious. It is then for the prosecution to state whether that basis of plea is accepted or not, and, if not, to seek a trial of the issue (known as a Newton hearing). Evidence may be called by the prosecution and the defendant, and the judge is required to make findings of fact to the criminal standard before proceeding to sentence.

Where the basis of plea is not challenged or is even accepted by the prosecution, does not mean that the judge is required to sentence on its basis. In the case of R v Beswick [1996] 1 Cr App R(S) 343, this Court identified principles in a case where the judge does not accept a basis of plea agreed between the prosecution and the defence. Those principles included the following where relevant to this appeal:

We are satisfied that the Recorder faithfully followed the correct principles when faced with the basis of plea which the prosecution did not seek to dispute. The Recorder was not bound to accept that basis. The Recorder made it clear to the defence that the basis appeared to be unrealistic or untrue and conducted a trial of the issue. During the course of his sentencing remarks the judge gave reasons for reaching the conclusion he did as to the role played by the appellant.

The single judge, in granting leave to appeal, asked the Court of Appeal office to obtain a transcript of a judgment given at the conclusion of the Newton hearing. No such separate judgment was available. This has not prevented us however, in reaching our decision upon this appeal.

We are satisfied that the Recorder properly gave reasons and his sure conclusion during the course of his sentencing remarks. We are not persuaded therefore that the Recorder made an error in proceeding with the sentence based on the conclusions which had been reached in the Newton hearing. Accordingly, the appellant’s role was a significant role within this category 3 drug dealing offending. We find no error in the sentence imposed of 38 months’ imprisonment. The Recorder gave significant weight to the appellant’s mitigating circumstances to reduce the sentence that otherwise would have been imposed. Therefore, we dismiss this appeal against sentence.