R v Gareth Davies

In sentencing for drug supply or an offer to supply, the court must assess the real harm caused or intended and apply the guideline to the actual criminality. Where evidence establishes that a proposed substantial supply was never intended to occur, that feature may require a fresh sentencing assessment in the interests of justice. A completed smaller supply remains material, and the unrealised offer may aggravate the criminality because it involved a substantial quantity and disregard of established procedures. An offender’s status as a public officer may constitute a substantial aggravating factor. The sentence must reflect the separate counts, mitigation and credit for a guilty plea.

The appellant, a Border Force field intelligence officer and person of previous good character, pleaded guilty to offering to supply 5,000 MDMA tablets and, on a separate occasion, supplying four MDMA tablets to an undercover National Crime Agency officer. The Crown Court at Maidstone dismissed an abuse of process application based on alleged entrapment and sentenced him to 5 years and 11 months after plea credit.

He appealed against sentence, arguing that the absence of any intention to complete the large proposed supply justified departing from the guideline range under the Sentencing Act 2020, and that his employment had been wrongly treated as aggravating. The central issues were how the established absence of intended supply affected harm and criminality, and the proper weight of his public office.

Appeal allowed in part. The Court of Appeal considered that the sentencing exercise had not fully reflected the established fact that the appellant never intended to supply the 5,000 tablets.

1. Statutory and guideline approach. Section 60(3) of the Sentencing Act 2020 required assessment of the harm caused, intended to be caused, or reasonably foreseeable, together with compliance with the guideline unless the interests of justice required otherwise. The guideline could not be applied mechanically by treating the proposed quantity as if the intended supply would have taken place.
2. Absence of intention to complete the offer. The evidence showed that no supply of 5,000 tablets was ever going to occur. This was not a case in which the appellant hoped to obtain the drugs and failed because of incompetence. The established absence of any intention to follow through distinguished the case from almost every other supply or offer-to-supply case. The sentencing exercise therefore had to be revisited by reference to the real harm caused.
3. Assessment of the criminality. The actual supply of four MDMA tablets merited, by itself, a starting point of 3 years and 6 months. The offer of 5,000 tablets nevertheless aggravated the criminality, although it was never intended to be pursued, because it was criminal conduct involving a substantial quantity and showed disregard for established procedures for investigating and pursuing crime.
4. Aggravation and sentence. The appellant’s employment with Border Force was properly treated as a substantial aggravating feature because he had abused his position and deliberately ignored procedures designed to protect the public, officers and public servants. Aggregating the criminality of both counts produced 6 years before mitigation. One year was allowed for mitigation, followed by the existing 15 per cent guilty plea reduction, resulting in 4 years and 3 months. The sentence on count 1 was reduced from 5 years and 11 months to 4 years and 3 months; the sentence on count 2 remained undisturbed.

• Court of Appeal (Criminal Division): The appeal against sentence was allowed in part. The sentence on count 1 was reduced to 4 years and 3 months, while the sentence on count 2 was left undisturbed.
• Crown Court at Maidstone: The appellant pleaded guilty after an abuse of process application based on alleged entrapment was dismissed. The court imposed a sentence of 7 years, reduced to 5 years and 11 months after 15 per cent credit for the plea.