R v Mahamud Ali

Where an offender is charged with offering to supply a controlled drug but the substance is fake, sentencing starts with the applicable Sentencing Council guideline as if the drug offered were genuine. The court then adjusts for aggravating and mitigating factors, applies any fact-sensitive reduction for the fake nature of the substance, and gives credit for a guilty plea. The reduction depends on matters including the danger of the product actually offered and the circumstances of those targeted. Pre-guideline authorities may provide limited assistance but should not displace the guideline. A refusal to suspend custody will be disturbed only where it is clearly wrong or one to which no reasonable judge could have come.

The applicant pleaded guilty at the first opportunity to being concerned in the supply of Class A drugs. He had offered paracetamol as cocaine and possessed a negligible quantity of actual cocaine. The Crown Court at Southwark imposed 12 months’ immediate imprisonment on 3 September 2024. The application for leave to appeal challenged only the refusal to suspend that sentence, relying on rehabilitation prospects, prison overcrowding and health concerns. The full court also considered the proper modern sentencing approach where drugs offered for sale are fake, including the relevance of pre-guideline authorities.

Leave to appeal was granted, but the appeal against sentence was dismissed.

1. Where the charge is offering to supply a controlled drug, the applicable Sentencing Council definitive guideline for supplying or offering to supply controlled drugs applies even when the substance offered is fake. The court must follow that guideline pursuant to the Sentencing Act 2020. If a different offence is charged and no specific guideline applies, the drugs guideline provides a relevant analogy.
2. The proper sentencing sequence is: first, identify the starting point under the applicable guideline; secondly, adjust for aggravating and mitigating factors; thirdly, where appropriate, apply a further reduction to reflect that the drugs were fake; and fourthly, apply credit for the guilty plea.
3. The amount of the reduction is fact-sensitive. Relevant considerations include whether the product actually offered was dangerous, the degree of danger, and the personal circumstances of those to whom it was offered. R v Tugwell [2001] EWCA Crim 719; [2001] 2 Cr App R(S) 113 remained relevant in illustrating the lesser criminality of fake drugs, but the modern guideline should ordinarily be the starting point rather than a pre-guideline authority.
4. The sentencing judge had carefully balanced the relevant material and was entitled to find that the prospects of rehabilitation were not as strong as submitted. Where the imposition guideline has been considered, the Court of Appeal will interfere with a refusal to suspend custody only if the decision is clearly wrong or one to which no reasonable judge could have come. The 12-month sentence was neither manifestly excessive nor excessive.

• Court of Appeal (Criminal Division): Granted leave to appeal against sentence, but dismissed the appeal.
• Crown Court at Southwark: On 3 September 2024, imposed 12 months’ immediate imprisonment for being concerned in the supply of Class A drugs.