Ali, R.

Factual and Procedural Background

The Appellant was sentenced to 12 months' imprisonment by Mr Recorder Campbell in the Crown Court at Southwark on 3 September 2024 for a single offence of being concerned in the supply of Class A drugs. The Appellant had pleaded guilty at the first opportunity on 21 February 2024 in the Westminster Magistrates' Court and was committed for sentence. The offence arose from an incident on 11 March 2023 in Soho, London, where the Appellant was observed by a bar manager approaching customers and offering to supply drugs. The Appellant was asked to leave the premises and was subsequently detained by police. He admitted attempting to sell paracetamol as cocaine. Forensic analysis confirmed the substance was primarily paracetamol in small bags, with a trace amount of cocaine of negligible value. Messages on the Appellant’s mobile phone corroborated attempts to supply drugs. The Appellant received a sentence reflecting the seriousness of creating a market for drugs, despite the drugs being fake. The application for leave to appeal the sentence was referred to the full court by the Registrar.

Legal Issues Presented

1. What is the correct approach to sentencing where the offence involves offering to supply fake controlled drugs?
2. Whether the learned Recorder erred in concluding there was no realistic prospect of rehabilitation for the Appellant.
3. Whether the learned Recorder erred in deciding that appropriate punishment required immediate custody rather than a suspended sentence.
4. How the Sentencing Council’s guidelines for supplying or offering to supply controlled drugs apply to offences involving fake drugs.

Arguments of the Parties

Appellant's Arguments

• The learned Recorder placed excessive weight on the psychiatric report and insufficient weight on the Probation Service’s opinion regarding rehabilitation prospects.
• The learned Recorder wrongly concluded that immediate custody was necessary for appropriate punishment, failing to adequately consider prison overcrowding and the Appellant’s health concerns.
• There was a misunderstanding in the psychiatric report concerning the Appellant’s history of compliance with antidepressant medication, which undermines the conclusion of poor rehabilitation prospects.
• The offence was unsophisticated, and the Appellant is vulnerable with poor decision-making but currently in stable accommodation and striving to improve his circumstances.
• The Appellant has sporadic previous convictions with no clear pattern, and the Probation Service assesses him as low risk of recidivism and willing to support rehabilitation through counselling.
• The appeal is confined to challenging the failure to suspend the sentence; no complaint is made about the sentence length.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the sentencing approach for offences involving fake drugs in light of the Sentencing Council's guidelines on supplying or offering to supply controlled drugs. It held that the applicable guideline applies to offences of offering to supply drugs, including cases involving fake drugs, as no specific guideline excludes them. The correct approach is to start with the relevant guideline sentence for genuine drugs, adjust for aggravating and mitigating factors, then apply a further discount to reflect the drugs being fake, with the discount amount depending on factors such as the nature and danger of the fake product and the circumstances of the intended recipients. Finally, any credit for a guilty plea is applied.

The court found that the learned Recorder followed this approach carefully, balancing all relevant factors including the psychiatric and pre-sentence reports, and applied a one-third discount for the guilty plea. The Recorder’s conclusion that the Appellant had poor rehabilitation prospects was supported by evidence, including a history of non-compliance with medication, despite some conflicting details. The Recorder considered the argument for suspension based on prison overcrowding but found that immediate custody was necessary to achieve appropriate punishment. The court emphasized that interference with such a sentencing decision requires it to be clearly wrong or unreasonable, which was not the case here.

Holding and Implications

The court granted leave to appeal but DISMISSED the appeal against sentence.

The decision confirms that the Sentencing Council’s guidelines for supplying or offering to supply controlled drugs apply to offences involving fake drugs, with an appropriate discount for the drugs’ lack of genuineness. The ruling clarifies the sentencing framework and confirms that sentencing judges retain discretion to impose immediate custody where rehabilitation prospects are poor and punishment requires it, notwithstanding pressures such as prison overcrowding. No new precedent was established beyond the clarification of the sentencing approach, and the sentence imposed on the Appellant stands.