Drugs supply guidelines – offer to supply –personal mitigation – totality – test purchase operations – undercover policing
Regina v Mustafa Omar
 EWCA Crim 684
By Rabah Kherbane
MO was sentenced to seven years imprisonment for six offences of supplying Class A drugs to an undercover officer over a five-month period, and offering to supply 1kg of cocaine to the same officer. In addition, £30,000 cash was recovered from MO’s address.
On appeal, MO contended that there had not been any regard to totality in his case, after the imposition of a substantial consecutive sentence of 4 years and 6 months for the offer to supply offence. This was his first drugs supply conviction, and he had demonstrated significant remorse, as well as insight into his offending behaviour.
MO argued that his sentence was harsher than a third strike offender who had twice been convicted and sentenced for offences of Class A drugs trafficking, despite this being his first such conviction. A ‘third strike’ offender would have received a sentence of 5 years and 6 months following maximum credit applied to the seven-year prescribed minimum. Totality therefore should have, but did not, act to produce a just and appropriate sentence overall.
The CACD accepted these submissions and reduced the overall sentence to 5 years and 6 months, and confirmed (see paragraphs 9- 11, and 13- 16 of the judgment):
- That ‘offer to supply’ offences should attract a reduction on the guidelines to recognise that there was no actual supply; and
- Proper regard to totality means (a) taking into consideration the personal mitigation of the offender, and (b) when sentencing offences committed in a test purchase operation, taking into account that offending was a continuing part of dealings with the same undercover officer, rather than ‘wholly independent transactions.’
It is right that offences of offer to supply should attract an appreciably lower sentence when using the standard drugs supply sentencing guidelines. To prove an offence of ‘offer to supply’ the prosecution does not need to prove more than that a simple offer had taken place. The fact a defendant may have not had any intention to supply a controlled drug is irrelevant (Prior (Neil)  Crim.L.R. 849).
Despite this, the application of the relevant guidelines has often varied, with some judges opting for standard starting points where the view is taken that the offender had the capacity to effect supply. In Omar, the sentencing judge made this finding on capacity to supply, but the correct approach was to start at the bottom of the relevant bracket in any case. This approach was confirmed by the CACD, to recognise no actual supply took place; greater reductions may be due if it can be shown the offer was not serious.
Secondly, the Court’s observation regarding totality taking on an important role where a number of offences have been committed during transactions with the same undercover officer is apt. Arguably, this recognises the realities of undercover operations where officers may continue engagement with the offender without arrest (despite securing sufficient evidence for a conviction), for intelligence gathering or operational purposes. Though this demonstrates a willingness by the offender to continue to supply Class A drugs, this is broadly already captured within the index offending, and so further occasions of supply with the same officer are incidental and it would be arbitrary to treat these without some moderation in totality.
Rabah represented Mr. Omar in the Court of Appeal.