R v Davies [2025] EWCA Crim 179: Sentencing “Offers to Supply” with No Intention to Fulfil — A Real-Harm Approach under s60 Sentencing Act 2020

Court: Court of Appeal (Criminal Division) — Lord Justice Dingemans, Mrs Justice Tipples, HHJ Forster KC (sitting as a Judge of the CACD)

Date: 13 February 2025

Neutral Citation: [2025] EWCA Crim 179

Introduction

This appeal concerned the proper sentencing approach where a defendant has both (i) actually supplied a small quantity of a Class A drug (MDMA), and (ii) separately made a very large “offer to supply” that, on the findings, he never intended to fulfil and had no realistic prospect of fulfilling. The appellant, Gareth Davies, was a 45-year-old Border Force Field Intelligence Officer of prior good character. He became the subject of a National Crime Agency undercover operation in Folkestone in 2019, during which he sourced four MDMA tablets for an undercover officer (“Mike”) and later offered to supply 5,000 tablets before returning money handed over by the officer when he could not obtain the drugs.

The key issues on appeal were:

How the Sentencing Council drug guidelines and section 60 of the Sentencing Act 2020 should be applied where the “offer to supply” was, on the facts, illusory — that is, there was no intention to fulfil it and no real prospect that it would be fulfilled.
Whether the trial judge erred in treating the appellant’s employment in the Border Force as an aggravating factor.

The appeal raises an important clarification: when assessing harm for “offer to supply” offences, the court may depart from guideline category ranges pegged to the offered quantity, and instead sentence by reference to the real harm actually caused (here, the small completed supply), treating the large unfulfillable “offer” as an aggravating feature. This approach was anchored in section 60 Sentencing Act 2020 and the court’s obligation to do justice on the particular facts.

Summary of the Judgment

The Court of Appeal allowed the appeal in part, reducing the overall sentence from 5 years 11 months to 4 years 3 months’ imprisonment. The court accepted that the sentencing judge had not fully accounted for his own findings that there was no intention or realistic prospect that the 5,000-tablet offer would be carried out. Applying section 60 Sentencing Act 2020 and the drug supply guidelines:

The court started from the real, completed harm — the supply of four MDMA tablets — which carries a guideline starting point of 3 years 6 months (category 4, significant role).
It then treated the massive “offer to supply” (which was criminal but illusory on the facts) as a serious aggravating feature, along with the appellant’s public office and disregard for investigative protocols, arriving at a notional pre-mitigation aggregate of 6 years.
It applied a 1-year reduction for mitigation, to 5 years, and then 15% credit for the guilty plea, producing 4 years 3 months.
To give effect to this, the sentence on count 1 (the offer) was reduced to 4 years 3 months; the sentence on count 2 (the four-tablet supply) was left undisturbed.

The court confirmed that the appellant’s decision to “go rogue” while a Border Force officer was a substantial aggravating factor. The court rejected any suggestion of entrapment; an earlier abuse of process application had correctly failed.

Analysis

Statutory and Guideline Framework Cited

Sentencing Act 2020, section 60: Requires courts to follow relevant Sentencing Council guidelines unless it is in the interests of justice not to do so; requires assessment of the harm caused, intended, or reasonably foreseeable; and clarifies (s60(4)(b)) that there is no separate duty to impose a sentence within a category range.
Sentencing Council drug offences guideline (Supply/Offer to supply Class A): Categorises harm mainly by quantity (e.g., category 2 indicative amount for MDMA is around 1kg) and by role (lesser, significant, leading). “Offer to supply” ordinarily uses the amount offered to assess harm.

Precedents Cited

No prior case law authorities were cited in the judgment. The court’s analysis proceeded by reference to the statutory scheme (s60 Sentencing Act 2020) and the Sentencing Council drug guidelines, applied to the unusual facts found by the judge and developed through the abuse-of-process hearing and “trial of issues”.

The Court’s Legal Reasoning

1) Real harm versus hypothetical quantity in “offer to supply” cases

The Court of Appeal accepted that although an “offer to supply” is itself a completed offence, the sentencing assessment of harm must reflect what section 60 requires: harm caused, intended, or reasonably foreseeable. Here, the trial judge’s own findings (made clear in the sentencing remarks) were that:

The appellant had “bigged himself up” to the undercover officer, hoping to impress and advance himself.
There was a “complete lack of a plan” and it was “highly unlikely” that the 5,000-tablet supply would ever be completed; indeed, the money was returned.
On the evidence now known, there was “in fact no supply of 5,000 tablets that was ever going to take place,” and this “distinguishes this case from almost every other” drug supply/offer case.

Given those findings, the Court held it was not just to adopt the guideline category derived from the 5,000-tablet offer as the principal driver of sentence. Instead, the court:

Anchored the sentence to the real harm of the completed supply of four tablets (category 4; starting point 3 years 6 months for a significant role).
Treated the large, illusory offer as a serious aggravating feature, not as the lead offence determining the harm category.

2) Applying section 60 Sentencing Act 2020 to depart from category ranges

Section 60(3) and (4)(b) empower the court to follow the guidelines flexibly, where the interests of justice require and there is no separate duty to stay within a category range. The court used that flexibility to:

Depart from using the offered quantity (which would normally place the case in category 2 with a high starting point) because the appellant never intended, and was not in a position, to fulfil the offer.
Avoid an artificial inflation of harm that would not properly reflect the facts found, while still recognising the offer itself was a criminal act and a serious aggravating feature.

3) Aggregation of criminality and the rationale for the new sentence

The court explicitly “aggregated the criminality of both counts,” arriving at:

Base (real harm): 3 years 6 months for the four-tablet supply (category 4; significant role).
Uplift for aggravation: A substantial uplift to reflect the illusory 5,000-tablet offer, disregard for established procedures, and the abuse of public office — producing a 6-year notional figure pre-mitigation.
Mitigation: 1-year reduction (personal history, prior good character, mental health context), leaving 5 years.
Plea discount: 15% (reflecting the timing of the guilty plea following the protracted abuse-of-process/trial-of-issues hearing), resulting in 4 years 3 months.

This approach gave proper effect to both the real harm and the seriousness of the criminal offer and public office aggravation, without over-penalising an offender for a quantity of drugs that — on the court’s own findings — he neither intended nor had the capacity to supply.

4) Treatment of the appellant’s public employment as an aggravating factor

The court affirmed that the appellant’s position as a Border Force officer was a substantial aggravating factor. He had “decided to go rogue,” disregarding established procedures designed to protect the public and investigators. That abuse of position of trust and confidence justifiably increased seriousness.

5) Why the appeal succeeded

The court concluded that the sentencing judge had not given full effect to his own findings that the 5,000-tablet offer would never be fulfilled. That error led to an over-reliance on the offer’s indicative category, thereby overstating harm. Correcting that error, the Court of Appeal reoriented the sentence to the real, completed harm and then applied a structured uplift for the criminality of the offer and the abuse-of-office aggravation, before mitigation and plea credit.

Impact

1) A principled pathway for “illusory offer” cases

The judgment carves out a clear, but narrow, approach for unusual “offer to supply” cases in which the evidence demonstrates:

No intention to fulfil the offer; and
No realistic prospect that the offer could have been fulfilled.

In such circumstances, the court may:

Anchor the sentence to the real harm caused by proven completed conduct (e.g., a smaller supply), and
Treat the large, unfulfillable “offer” as a serious aggravating factor rather than as the primary determinant of harm category.

This is an important clarification. It guards against sentencing inflation where a defendant’s boasting or “bigging up” to an undercover officer bore no relation to real capacity or intent. At the same time, it does not trivialise the criminality of the offer: the offer remains a serious aggravating feature attracting a substantial uplift.

The Court emphasised that this case is distinguishable from “almost every other” supply or offer case. The principle is thus exceptional and fact-sensitive, not a general licence to sidestep guideline quantities for offers to supply.

2) Application of section 60 Sentencing Act 2020

The decision illustrates the practical force of section 60:

Courts must assess harm realistically — caused, intended, or reasonably foreseeable.
Court may, “in the interests of justice,” depart from guideline category ranges — especially where rigid application would produce an unrepresentative sentence on atypical facts.
Courts should, however, provide clear reasons for any departure and explain the structured route taken, as the Court of Appeal did here.

3) Public office aggravation reaffirmed

The judgment strongly reaffirms that offending by law enforcement or border officials that disregards investigative protocols is a significant aggravating factor. The professional duty to protect the public and uphold the integrity of investigations magnifies culpability when breached.

4) Undercover operations and “entrapment”

The court noted that any abuse-of-process argument based on entrapment failed; the hearing effectively morphed into a trial of issues on intention and capability. The case signals:

Entrapment arguments will be scrutinised rigorously and will often fail where the defendant freely engages in criminal conduct.
Where a “trial of issues” occurs, clear and recorded findings of fact are invaluable for later sentencing and appellate review; the lack of a detailed written ruling here complicated matters and shifted weight onto the sentencing remarks.

5) Plea timing and credit

The court upheld 15% credit for a plea tendered after the abuse/trial-of-issues hearing. Practitioners should expect reduced credit where significant court time is spent resolving contested issues pre-plea, consistent with the guilty plea reduction guideline.

Complex Concepts Simplified

Offer to supply: A standalone offence. The crime is complete when an offer is made, even if supply never occurs. But for sentencing, the court assesses harm caused, intended, or reasonably foreseeable.
Harm assessment in drug guidelines: Typically driven by quantity (or indicative weight) and role. For offers, the usual practice is to use the offered amount. In exceptional cases like this one, that may be unjust where there was no intention or realistic prospect of fulfilment.
Section 60 Sentencing Act 2020: Courts must follow guidelines unless, in the interests of justice, they should not. There is no duty to impose a sentence within a guideline category range (s60(4)(b)). Courts must give reasons when departing.
Aggravating factor — public office: Offending by a public servant (e.g., Border Force) that abuses trust or subverts investigative protocols increases seriousness.
Abuse of process/entrapment: A high bar. If state actors merely provide an opportunity, and the defendant chooses to offend, entrapment is unlikely to be made out.
Totality/aggregation: When dealing with multiple counts, courts ensure the overall sentence is just and proportionate. Here, the Court of Appeal aggregated the criminality of the small actual supply and the illusory large offer into a single notional figure before applying mitigation and plea credit.

Conclusion

R v Davies sets a significant, carefully circumscribed marker for sentencing “offer to supply” drug cases where the offered quantity is very substantial but, on the findings, there was no intention or realistic capability to fulfil the offer. In those rare cases, courts may — and should — prioritise the real harm actually caused, treating the illusory offer as a serious aggravating feature rather than as the primary determinant of category and starting point. This is squarely grounded in section 60 Sentencing Act 2020 and the imperative to do justice on the facts.

At the same time, the judgment underscores robust aggravation for abuse of public office and reiterates that entrapment claims will not lightly succeed. Practically, the case encourages clear factual findings at “trial of issues” hearings and a transparent sentencing route that articulates how real harm, aggravation, mitigation, and plea credit are combined to yield a proportionate result.

The outcome — a reduction to 4 years and 3 months — reflects that balance: a sentence that is firm in marking the criminality of both the actual supply and the reckless “offer,” yet calibrated to the real harm and the true culpability established by the facts.