Summary of Court Opinion

Factual and Procedural Background

This is an appeal in the Appeal Court of the High Court of Justiciary. The Appellant is the Crown and the Respondent is the individual convicted in the underlying proceedings. The opinion was delivered by Judge Dorrian sitting with two other judges.

On 9 October 2024 at The City High Court, the Respondent pleaded guilty to an offence under section 28 of the Criminal Justice and Licensing (Scotland) Act 2010 for involvement in serious and organised crime. The offending conduct comprised, among other things, use of encrypted communications devices to provide services to persons he knew or suspected were involved in serious and organised crime. The activities included facilitation of cocaine and cannabis supply, unlawful tracking and tracing of third parties to further organised crime, and conducting "bug-sweeps" of properties and vehicles to assist persons evade detection, over the period 29 March 2020 to 15 May 2020.

On 15 October 2024 the Respondent was sentenced to 2 years' imprisonment, to be served consecutively to a 5 year sentence that he was already serving (the earlier sentence arose from a 2023 conviction for an analogous offence under the same statutory provision). The Crown appealed that sentence on the ground of undue leniency.

Legal Issues Presented

1. Whether the trial judge erred in approach by relying on the decision in Ibbotson v HMA to the extent that he attenuated the sentence for the 2024 conviction because the Respondent was already serving a sentence for an earlier, analogous offence.
2. Whether the headline sentence and the plea discount applied by the trial judge (a discount of one-third for a section 76 guilty plea) were appropriate in light of the totality principle and the factual circumstances (including the lateness of the plea and the nature of likely witnesses).
3. Whether the sentence of 2 years' imprisonment (to run consecutively to the existing 5 year sentence) was unduly lenient and, if so, what sentence should properly be substituted.

Arguments of the Parties

Appellant's Arguments

• The headline sentence of 3 years (before discount) did not adequately reflect the sentencing purposes of public protection, punishment and denunciation.
• The trial judge under-estimated the seriousness of the offence by failing to give appropriate weight to the multiplicity of criminal conduct in the charge, the use of encrypted communications, the commercial and organised nature of the offending, and the length of the offending period.
• The trial judge erred in treating the 2024 conviction as if it should be sentenced in the context of the 2023 conviction in a way that reduced the appropriate sentence for the 2024 offending; fairness did not require treating the 2024 conviction as if it ought to have been prosecuted alongside the 2023 conviction because the two sets of offending were committed more than three years apart.
• The one-third discount for a section 76 plea was excessive given the lateness of the plea (12 months between first appearance and the tendering of the section 76 letter, with plea discussions commencing about 8 months after first appearance) and given that most witnesses likely to be called at trial would be police officers; therefore a much smaller utilitarian discount should have been applied.
• Cited authorities and prior decisions (including Simion and Ibbotson) supported the submission that the total punishment across the two matters should result in a substantially greater immediate additional sentence than that imposed by the trial judge.

Respondent's Arguments

• The trial judge adopted the correct approach by assessing an appropriate sentence for the totality of the 2023 and 2024 offending, subtracting the 5 years already being served, and then making an appropriate allowance for the use of the section 76 procedure.
• The trial judge did not conclude that the 2024 matter should have been prosecuted on the same indictment as the 2023 matter; he simply had regard to the totality of the offending in reaching a proportionate headline sentence for the matter before him.
• The trial judge properly applied sentencing guidelines and had sufficient information to determine the appropriate weight to be given to the various aggravating and mitigating factors, including the plea.
• The utilitarian value of the plea and the logistical limits on consultation imposed by the Respondent's incarceration justified the discount the judge applied.

Table of Precedents Cited

Court's Reasoning and Analysis

The court set out the correct analytical framework for sentencing where the offender is already subject to an existing sentence for an analogous offence. The sentencing judge must (a) consider whether the new sentence should be consecutive to the existing sentence and (b) if consecutive, whether the totality principle requires attenuation so that the aggregate sentence is fair and proportionate.

The appellate court observed that the trial judge relied on a passage from Ibbotson that stated "the interests of justice do not require both sentences to duplicate the same purposes of punishment, deterrence, protection of the public and rehabilitation." The appellate court concluded that this quotation, as used by the trial judge, was at best superfluous and could be unhelpful or confusing. In the present case the Respondent was not being punished twice for the same conduct; the two sets of offending were distinct, separated by more than three years, and the later offending was more sophisticated and organised and operated on a commercial basis.

The court explained that the judge should have approached the 2024 offending on its own merits: identifying the appropriate sentence by reference to culpability and harm (including potential harm), determining the appropriate discount for the plea after assessing its utilitarian value, and then deciding what, if any, attenuation was appropriate because the Respondent was already serving a sentence. That exercise does not require re-assessment of the earlier offending or the imposition of a hypothetical combined sentence.

Applying that approach to the facts the appellate court concluded the trial judge erred in the overall assessment. The court reasoned that the appropriate headline sentence for the 2024 offending, had it been assessed correctly, would have been 8 years' imprisonment. Given the lateness of the plea and the nature of likely witnesses (primarily police officers), the court considered a utilitarian discount of one-sixth (rather than one-third) appropriate, resulting in an effective sentence of 6 years and 8 months. Having regard to the fact that the Respondent was already serving a 5 year sentence and the effect of making the new sentence consecutive, the court considered it reasonable to further reduce the consecutive element so that the substituted consecutive sentence would be 5 years and 6 months.

Accordingly the court determined that the trial judge had under-estimated both the seriousness of the offending and the appropriate discount for the plea, and had applied an incorrect approach by effectively treating the two separate matters in a way that went beyond the proper application of the totality principle.

Holding and Implications

Core Ruling: The appellate court allowed the Crown's appeal on the ground of undue leniency, quashed the sentence imposed by the trial judge, and substituted a consecutive sentence of 5 years and 6 months' imprisonment.

Implications:

• The direct effect is that the sentence imposed for the 2024 conviction is increased from 2 years (to be served consecutively to the existing 5 year sentence) to a consecutive sentence of 5 years and 6 months.
• The court clarified that reliance on language in Ibbotson suggesting avoidance of duplication of sentencing purposes is potentially confusing and should not be applied in a way that prevents proper application of the totality principle. Sentencing judges must identify an appropriate sentence for the offending before them, assess any plea discount by reference to utilitarian value, and then determine how any existing sentence should affect the consecutive element.
• No novel general principle of law was established beyond the court's clarification of proper application of the totality principle and the caution against over-extending certain language in Ibbotson; the decision operates as an application of established sentencing principles to the facts of this case.

Administrative details (anonymized): Appellant represented by Attorney Bain and the Crown Agent (Company A). Respondent represented by Attorney Ross and Attorney Paterson (for Company B). Opinion delivered 28 January 2025 by Judge Dorrian on behalf of the court.