High Court quashes fine in favour of imprisonment in Crown appeal against sentence of sex offender who breached court order

About this case:

• Citation:
  [2023] HCJAC 11
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Craig Raeburn had pled guilty to contravening the Sexual Offences Act 2003 and was fined £1,000 by the sheriff in lieu of a custodial sentence. The Crown challenged the sentence on the grounds that it failed to satisfy the purpose of sentencing, especially as the respondent had previously been imprisoned for an identical offence.

The appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Woolman and Lord Matthews. CG McKenna, solicitor advocate, appeared for the Crown and C Miller, advocate, for the respondent.

52 separate incidents

On 23 February 2017, the respondent became subject to a Sexual Offences Prevention Order granted by Edinburgh Sheriff Court. The terms of the order prevented him from browsing the internet without making a record of his browsing history and compelling him to make any device used for internet access available to a police officer upon request. At an unannounced police visit at the end of 2020, it was discovered that the respondent had breached the order by repeatedly downloading and then deleting the Firefox browser app on his phone on 52 separate occasions.

The order was made following the respondent’s conviction in January 2017 for taking and possessing indecent photographs of children, along with a sentence of 10 months’ imprisonment. In June 2019, he was convicted of a breach of his SOPO analogous to the present offence and sentenced to 15 months’ imprisonment.

In mitigation, the sheriff considered that the respondent had pled guilty at the earliest opportunity, and that he had had a “turbulent time of late, with both his father and sister passing away”. He accepted the respondent’s submission that at the time of the offence he had been scared for his safety and had been using the internet browser to search for articles about himself.

The sheriff also took into account the absence of further breaches since the date of the offence in December 2020, and on this basis thought it appropriate to impose a financial penalty of £1,000, modified from £1,500 on account of the early plea, as a direct alternative to a custodial sentence.

Custodial sentence inevitable

The Crown submitted that the sentence imposed on the respondent was unduly lenient. The sheriff had failed to give adequate weight to the gravity of the respondent’s offending, which had occurred over a period of time and had involved 52 separate incidents. It was conceded by the respondent that the court would require to consider the matter de novo but maintained that a discount should be applied to reflect the utilitarian value of his early plea and the fact that he had already paid the fine.

Lord Carloway, delivering the opinion of the court, said in consideration of the offence: “Standing the fact that the respondent had a recent, previous conviction for an identical offence, which had attracted a sentence of 15 months’ imprisonment, a further custodial sentence was inevitable. The Crown’s submission that the sheriff failed to give adequate weight to the gravity of the offence and the previous convictions is a sound one. The concession by the respondent that the sentence was unduly lenient was correctly made.”

The High Court therefore quashed the respondent’s initial sentence and substituted a sentence of 18 months’ imprisonment. This was reduced to 12 months’ imprisonment in light of the respondent’s early plea and payment of the original fine.