Summary of Court of Appeal Opinion

Factual and Procedural Background

The Appellant is a 45-year-old man of previous good character who, at the time of the offending, was employed as a Field Intelligence Officer for Company B. He had earlier worked for Company C. In October 2018 he was suspended following an allegation of involvement in cannabis production; no action followed but that report appears to have prompted an investigation by Company A.

In the summer of 2019 Company A deployed an undercover officer (referred to in the transcript as "Mike") to develop a relationship with the Appellant. The undercover officer attended a gym frequented by the Appellant and first spoke to him on 7 October 2019. Over the relevant period the Appellant sold a sample of MDMA (four tablets) to the undercover officer, having sourced the tablets from a contact who was a drug dealer. Subsequently the Appellant offered to supply 5,000 MDMA tablets to the undercover officer. Money was handed over by the undercover officer, the Appellant left and later returned stating he could not obtain the drugs and returned the money in a car park; the Appellant was arrested immediately after handing the money back.

Criminal proceedings followed. The Appellant applied for dismissal of the proceedings on the basis of abuse of process (entrapment). Evidence was heard from the undercover officer and the application was dismissed. There is no transcript of findings made at that hearing in the materials before the Court, and it appears that the judge made factual findings in the sentencing remarks rather than at the abuse hearing. The Appellant pleaded guilty and was given a 15% reduction in sentence for the timing of the plea.

Pre-sentence and psychiatric reports were prepared. The reports recorded, among other matters, childhood abuse, previous steady employment, a later acrimonious divorce, periods of sleeping rough, continued employment with Company B until suspension, and that the Appellant's mother was dependent on him. The psychiatric report noted low mood and anxiety.

At first instance the sentencing judge applied the Sentencing Guidelines for supply/offer to supply Class A drugs, treating the 5,000-tablet offer as category 2 and the supply of four tablets as category 4. The sentencing judge originally imposed an aggregate sentence which, after discount for plea, resulted in an overall sentence of 5 years 11 months (the judge structured the sentence with one count treated as the lead offence).

Legal Issues Presented

1. Whether the court must, in accordance with section 60(3) of the Sentencing Act 2020, follow the sentencing guidelines unless satisfied in the interests of justice not to do so — and whether in this case it was in the interests of justice to depart from the guideline assessment when the evidence indicated no realistic plan to supply the 5,000 tablets.
2. Whether it was proper for the sentencing judge to treat the Appellant's employment as a public officer (employment with Company B) as an aggravating factor in sentencing.

Arguments of the Parties

Appellant's Arguments (Attorney McGrath)

• Section 60(3) Sentencing Act 2020 requires assessment of harm and that the court follow the guidelines unless satisfied in the interests of justice not to do so. It was submitted that here the real harm was limited because, although an offer had been made, the evidence showed no plan to deliver 5,000 tablets and the offence was unlikely to be completed.
• Reference was made to sections 60(4) and 60(5) and subsection 60(4)(b) (that nothing imposes a separate duty to impose a sentence within the category range) — submission that proper regard to real harm should have produced a sentence well below the category range.
• The sentence should be reduced on the basis that the appellant lacked the intention and capacity to supply the larger quantity and that the guidelines' category assumptions did not reflect the true level of culpability in this case.
• Challenge to the judge's treatment of the Appellant's employment as an aggravating factor.

Prosecution's Arguments (Attorney Posner)

• The prosecution outlined the background to the abuse proceedings and emphasised that the sentencing judge had heard the evidence and was best placed to make findings of fact.
• With respect to the actual supply (count 2), the Appellant had sought out a drug dealer to obtain MDMA and therefore that conduct merited the guideline assessment applied to that count.
• Overall, the prosecution contended the judge's approach and findings were supported by the evidence heard at first instance.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court of Appeal (Judge Dingemans delivering the approved judgment) undertook a careful balancing exercise. The Court recognised two countervailing aspects:

• On one side, the sentencing judge found the Appellant's motive was to enhance his standing with his employer (Company B) and to present information to superiors, and that he had acted in deliberate disregard of established procedures for handling informers and evidence — conduct described as "going rogue" and viewed as substantially aggravating, particularly because the Appellant was a public officer.
• On the other side, the available evidence (including findings made at the trial of issues) established that there was in fact no realistic prospect that the Appellant would ever have supplied 5,000 tablets — the offered supply was highly unlikely ever to be completed and the Appellant lacked a concrete plan or capacity to procure that quantity from the source of the four tablets.

The Court concluded that the sentencing judge had not fully accounted for that lack of intention and realistic capability to supply the 5,000 tablets when structuring the sentence. The Court therefore re-examined the sentencing exercise by reference to the "real harm" caused: the actual supply of four MDMA tablets (count 2) which, standing alone, merited a starting point of 3 years and 6 months under the Guidelines. The offer of 5,000 tablets (count 1), although unlikely to be completed, nonetheless aggravated the offending because it was a substantial criminal action and demonstrated disregard for protective procedures and the Appellant's duty as a public officer.

The Court aggregated the criminality of both counts and determined that an appropriate aggregate sentence before mitigation was 6 years. The Court then allowed for mitigation by reducing that aggregate by 1 year (for personal mitigation), producing an aggregate of 5 years. The Court retained the 15% credit for guilty plea, which, applied to 5 years, yields a sentence of 4 years and 3 months. Given the manner in which the original sentencing was structured by the trial judge, the Court adjusted the sentence on count 1 (the offer of 5,000 tablets) by reducing it from the sentence originally imposed (5 years 11 months) to 4 years 3 months and left the sentence on count 2 (the supply of four tablets) undisturbed.

The Court therefore concluded that a reduction was necessary because the sentencing judge had not sufficiently taken into account the evidential finding that the large-scale supply was unlikely ever to be realized, even though the offer itself remained criminal and aggravated by the Appellant's public employment.

Holding and Implications

APPEAL PARTLY ALLOWED

Holding: The Court allowed the appeal in part, reducing the sentence imposed on the count relating to the offer to supply 5,000 MDMA tablets from the sentence imposed by the trial judge (after plea discount 5 years 11 months) to a sentence of 4 years and 3 months. The sentence on the count for supplying four MDMA tablets was left unchanged.

Implications:

• The direct effect is a reduction in the Appellant's sentence on the lead count and a corresponding reduction in the overall sentence to 4 years and 3 months (after plea credit) in respect of that count, with the other count remaining as previously sentenced.
• The Court emphasised that the offer of a large quantity of drugs remained aggravating conduct even where evidence shows the supply was unlikely to be completed; however, sentencing must properly reflect the real harm and the defendant's realistic intention and capability. The decision therefore adjusts the sentence to reflect the evidential findings about intention and capability in this specific case.
• No new legal precedent was announced; the Court adjusted the sentence on the facts before it and explained the application of the Sentencing Act 2020 provisions and the Guidelines to those facts.

Note on anonymization and sources: This summary has been prepared exclusively from the text of the provided court opinion and anonymises named persons and organisations in accordance with the instructions governing this summary.