His Majesty’s Advocate v. Ian Sweeney [2025] HCJAC 5

Crown appeal against sentence:- On 9 October 2024 at Glasgow High Court the respondent pled guilty under the accelerated procedure to a contravention of section 28 of the Criminal Justice and Licensing (Scotland) Act 2010, namely, over a 6 week period in 2020 being involved in serious and organised crime by using encrypted communications devices to provide services to individuals who he knew or suspected were involved in serious and organised crime including the facilitation of cocaine and cannabis supply, the unlawful tracking and tracing of third parties for the purposes of furthering organised crime and conducting bug-sweeps of properties and vehicles to assist persons concerned with organised crime evade detection from the authorities. On 15 October 2024 the respondent was sentenced to 2 years imprisonment discounted from 3 years on account of the plea of guilty which sentence was to be served consecutively to a sentence of 5 years imprisonment the respondent was already serving in relation to a directly analogous offence. The Crown appealed against the sentence imposed it being contended it was unduly lenient. In his report to the court the sentencing judge stated that in isolation the offence would have merited a headline sentence of 7 years, however, given the respondent was serving a sentence of 5 years for an analogous offence committed between 13 September 2016 and 23 November 2016 and had the two offences been considered together a headline sentence of 8 years would have been merited and, under reference to Ibbotson v HMA 2022 SCCR 265, he considered that a proportionate headline sentence in relation to the new matter was one of 3 years which he discounted to 2 years to reflect the plea. On behalf of the Crown the Lord Advocate submitted that the headline sentence of 3 years failed to sufficiently protect the public, punish the respondent and express disapproval of the offending behaviour. Further, unlike in Ibbotson where he had not offended prior to the first of the two rapes here the respondent had a number of previous convictions including one which was directly analogous and another for a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 relating to the supply of a class A drug in the High Court in 2010 for which he received a 4 year sentence. It was further submitted that the conduct involved several distinct forms of criminal conduct over a 6 week period and the sentencing judge failed to adequately take the nature of the offending into account and erred in his assessment of the seriousness of it. Furthermore, the sentencing judge had erred in seeking to, in effect, sentence the respondent for the 2023 section 28 conviction and the new 2024 section 28 charge when the only matter before the court was the new matter. It was further submitted on behalf of the Crown that the conduct in the two separate section 28 charges was committed more than 3 years apart and the only real connection between the offences was the statutory provision under which the conduct fell and fairness did not require the 2024 conviction to be treated as though it was prosecuted together with the 2023 conviction. Furthermore, simply because the plea was tendered under the accelerated procedure should not automatically entitle the respondent to a one-third discount as there was a delay of 12 months between the first appearance and the tendering of the section 76 letter and a significant amount of preparatory work had already been undertaken and the utilitarian benefit was minimal given all witnesses were likely to be police officers. On behalf of the respondent it was submitted that the sentencing judge had taken the correct approach by applying the totality principle in considering what would have been an appropriate sentence for the 2023 and 2024 section 28 convictions viewed together and allowing a discount of a third after deduction of the 5 year period. Here the court allowed the appeal. The court stated that the respondent was not being punished twice for the same conduct given the conduct for each was different and there was a period of over 3 years between the offences. The court considered that the latter offence involved far more sophisticated conduct on a commercial scale and presented significant danger to the individuals whose personal information he traced and sold. The court did not considerate it necessary for the sentencing judge to assess what might have been an appropriate sentence had the 2016 offending been dealt with at the same time as the 2020 offending. The court stated that the sentencing exercise required by the judge was to assess the seriousness of the conduct under reference to the culpability and harm and determine an appropriate sentence and thereafter consider an appropriate discount and, finally, decide how to deal with the fact that the respondent was currently serving a sentence. Given the level of sophistication and the seriousness of the offending, in light of the previous convictions, a headline sentence of 8 years was appropriate. Given the relative lateness of the plea the court considered there to be little by way of utilitarian value to the plea and a discount of one-sixth was deemed appropriate resulting in a sentence of 6 years and 8 months imprisonment. As the respondent was currently serving a sentence of 5 years the court considered it appropriate to quash the sentence of 2 years imprisonment and substitute a consecutive sentence of 5 years and 6 months imprisonment.