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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2025] HCJAC 5
HCA/2024/586/XC
Lord Justice Clerk
Lord Matthews
Lord Beckett
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
CROWN APPEAL AGAINST SENTENCE
by
HIS MAJESTY'S ADVOCATE
Appellant
against
IAN SWEENEY
Respondent
Appellant: Lord Advocate (Bain KC); the Crown Agent
Respondent: Ross KC; Paterson Bell (for KM Law, Glasgow)
________________________
28 January 2025
Introduction
[1]
On 9 October 2024 at Glasgow High Court, the respondent pleaded guilty to an
offence under section 28 of the Criminal Justice and Licensing (Scotland) Act 2010, consisting
of involvement in serious and organised crime. The offending included the use of encrypted
2
communications devices to provide services to individuals who he knew or suspected were
involved in serious and organised crime. The activities carried out included 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 law
enforcement agencies, all over a period from 29 March 2020 to 15 May 2020.
[2]
On 15 October 2024, the respondent was sentenced to a period of 2 years'
imprisonment, to be served consecutively to a sentence of 5 years' imprisonment currently
being served by the respondent. The Crown appeals the sentence on the grounds of undue
leniency.
Facts
[3]
The respondent was a service user of an encrypted communication platform named
"EncroChat". This platform, widely used by those involved in organised crime, was
infiltrated by UK and European law enforcement agencies during 2020.
[4]
Investigation by Police Scotland revealed that the respondent had access to an
encrypted device and was using the EncroChat platform under the name "bug-sweep".
From the data recovered, it was clear that he had developed a reputation within criminal
circles as someone who could obtain private information about individuals, including their
whereabouts.
[5]
Between 29 March 2020 and 15 May 2020, the accused was in contact with over 100
other individuals on EncroChat. During this time, he sourced drugs - cocaine and cannabis -
from one person before supplying the drugs to another. He sourced at least 5kg of cocaine
with a value of between £40,000 and £43,000 per kilogram.
3
[6]
The respondent also provided a service where he conducted sensitive information
checks on third parties. He searched for, and subsequently provided, information to
associates about the whereabouts of third parties. On one occasion, the respondent
provided information, including addresses, about family members of a third party.
[7]
The respondent gave advice to a number of criminal associates about the
manufacture of clandestine "hides" within vehicles for the storage and UK wide transport of
controlled drugs and money. For example, on 2 April 2020, the respondent gave advice to
an associate on how best to store and covertly transport as much as 250kg of cannabis.
[8]
The respondent offered "bug-sweep" services to his associates. The respondent used
the EncroChat platform to publish a "price list" for such services, across the UK and Europe.
The services involved obtaining sensitive information together with offering advice on, and
provision of, anti-surveillance measures to avoid detection from law enforcement agencies.
For example, on 1 April 2020, the respondent was asked whether he could carry out a "bug-
sweep" on 2-3 cars in London at a price of £300 per vehicle. On 15 April, he quoted an
associate £1,000 for carrying out a "bug-sweep" in a house. He asserted that he would be
using equipment with a combined value of over £100,000 to carry out the "bug-sweep". He
knew that the services he was providing was for the purposes of criminal activity with the
potential to cause others significant harm.
The 2023 Conviction
[9]
On 20 March 2023 at Glasgow High Court, the respondent was convicted after trial of
a separate offence under section 28 of the 2010 Act, committed between 13 September 2016
and 23 November 2016, in furtherance of the commission of serious organised crime. He
was sentenced to 5 years' imprisonment. The respondent first appeared on petition in
respect of that offence on 9 September 2020. He appeared on petition in respect of the 2024
4
conviction on 30 August 2023. He also had a prior conviction for being concerned in the
supply of a class A drug, in the High Court in 2010 for which he received a 4 year sentence.
The Sentencing Decision
[10]
The trial judge characterised the offending as "particularly serious" requiring the
imposition of a custodial sentence to achieve the sentencing purposes of public protection;
punishment; and expressing disapproval of the offending behaviour.
[11]
The judge noted that the offending in both convictions was analogous. He
considered that, viewed in isolation, the offending before him would have merited a
sentence of 7 years imprisonment. However, he had to recognise that the respondent was
serving a sentence of 5 years for analogous behaviour, and had those two offences been
considered together a headline sentence of 8 years might have been merited. He thus
concluded that a proportionate headline sentence in relation to the present matter was one
of 3 years. He discounted this by one-third to reflect a plea of guilty by section 76 letter.
[12]
In his appeal report, the judge states that the Note of Appeal was wrong to suggest
that he concluded that the 2024 conviction ought to have been prosecuted on the same
indictment as the 2023 conviction. Rather, he required to take into account the sentence that
the respondent was already serving and ensure that the sentence about to be imposed was
both fair and proportionate in that context. That exercise required an assessment of the
totality of the respondent's offending and the period over which it was committed. It was
clear, from Ibbotson v HMA 2022 SCCR 265, (para [5]) that, in circumstances such as those
pertaining in the present case, the interests of justice do not require both sentences to
duplicate the same sentencing purposes.
[13]
Had there been no guilty plea and the case proceeded to trial, at least seven court
days would have been required. The respondent pleaded guilty by way of section 76
5
indictment. Applying the discretion open to the trial judge, a discount of one third was
appropriate.
Submissions
The Crown
[14]
The headline sentence of 3 years' imprisonment did not fully achieve the relevant
sentencing purposes of (i) the protection of the public; (ii) punishment of the respondent;
and (iii) expressing disapproval of the offending behaviour.
[15]
As highlighted in Simion v HM Advocate 2023 SLT 647, the real effect of Ibbotson was
that the total punishment for two offences of rape equated to 9 years' imprisonment.
Ibbotson had not offended prior to the first of the two rapes. The respondent in the instant
case had several previous convictions, one of which was directly analogous and the other
was partly analogous to the present offending.
[16]
The respondent pleaded guilty to a charge containing four distinct forms of criminal
conduct. He went to significant lengths to avoid detection by using an encrypted
communication platform to conduct his business. The offending spanned more than
6 weeks. The offending was calculated and deliberate, performed with the objective of
personal financial gain, at the risk of the safety of other persons and in the knowledge that
the services were being provided for the purposes of serious and organised crime. In
selecting a headline sentence of 3 years' imprisonment, the trial judge failed to take into
account these factors and consequently under-estimated the seriousness of the offence. The
respondent had nine previous convictions, of which two were analogous.
[17]
The trial judge erred in treating the matter as though he was sentencing the
respondent for both the 2023 conviction and the 2024 conviction. There was only one matter
6
before him- the 2024 conviction. Fairness did not require the 2024 conviction to be treated as
though it ought to have been prosecuted alongside the 2023 conviction. Although the
offences were charged under the same statute, that was the extent of their connection. The
offences were committed more than 3 years apart.
[18]
The fact that a plea was tendered by section 76 letter did not automatically entitle the
respondent to a one-third discount: Geddes v HM Advocate 2015 SCCR 230 at para 21. The
delay between first appearance and the tendering of a section 76 letter was 12 months, with
plea discussions only commencing some 8 months after the respondent appeared on
petition, by which time a significant amount of preparatory work had already been
undertaken. Early pleas in cases involving only police witnesses should attract, at most, a
significant majority of witnesses whom the Crown would have cited, had the case proceeded
to trial, were police officers.
The Respondent
[19]
The judge took the correct approach by (i) considering the appropriate sentence for
the totality of the 2024 conviction and the 2023 conviction, (ii) subtracting the period of
5 years' from that total; and (iii) making an appropriate allowance for the use of section 76
procedure. The Crown was wrong to suggest that the trial judge concluded that the 2024
conviction ought to have been prosecuted on the same indictment as the 2023 conviction.
Instead, the trial judge had simply had regard to the totality of the offending when arriving
at the headline sentence. The trial judge had sufficient information to carry out that exercise.
[20]
The judge took proper account of the relevant sentencing guidelines. When
assessing the seriousness of the offence, the judge took into account all matters which were
highlighted by the Crown. It was for him to assess the weight to be given to those.
7
[20]
The disclosed material in the case was significant. From the commencement of
discussions between the Crown and the defence it was understood that the matter would be
resolved by way of a plea. The respondent's incarceration limited opportunities for
consultations. A discount is afforded to reflect the utilitarian value of a plea: Gemmell v
HM Advocate. The trial judge did not err in discounting the headline sentence by one-third.
Analysis and Discussion
[21]
At the time of sentence for the current offences, the respondent was serving a
sentence of imprisonment for an analogous offence committed more than three years
previously. That is clearly a factor which must be recognised by the sentencing judge, who
will require to address whether the sentence about to be imposed should be made
consecutive to the sentence currently being served, and, if so, whether the sentence should
be attenuated in any way to reflect the totality principle.
[22]
In the present case the trial judge relied on the case of Ibbotson v HMA to conclude
that
"in circumstances such as those which pertain in the present case, the interests of
justice do not require both sentences to duplicate the same sentencing purposes."
This is a direct quote from Ibbotson, and seems to have been relied upon by the sentencing
judge to conclude that the offending before him should be viewed as being apiece with the
offending which led to the sentence already being served. In his report, the sentencing
judge suggests that this is not what he intended to do, and that he was seeking merely to
apply the totality principle. It does seem however, that he went beyond this, when one
takes account of his sentencing remarks, viz:
"The present offence was committed by you between March and May 2020 that is
prior to your first appearance in relation to the matter which gives rise to your
8
analogous previous conviction, that being on 9 September 2020, that case not being
indicted until the beginning of January 2022.
The analogous offence related to events from the period September to
December 2016."
[23]
Senior counsel for the respondent submitted that the sentence quoted from Ibbotson
meant that an individual should not be punished twice for the same conduct: stated thus,
this is an uncontroversial proposition. Looking at the comment in Ibbotson in its full context
it appears that this is indeed what the court intended to convey, in other words, that it was
merely intending to state the totality principle:
"[4]
Before proceeding to sentence, the court closely assesses the individual
circumstances of each case. That includes considering (a) any existing sentences to
which the individual is subject, and (b) the cumulo effect of consecutive sentences: see
for example Graham v HM Advocate, 2019 SCCR 19 at para [57].
[5]
Approaching the matter on that basis, we conclude that the cumulo sentence is
not proportionate. The interests of justice do not require both sentences to duplicate
the same purposes of punishment, deterrence, protection of the public and
rehabilitation."
[24]
The facts of Ibbotson certainly support the interpretation that it was essentially an
illustration of the totality principle: the appellant was convicted, on separate indictments, of
two instances of rape, on separate complainers two years apart. At the time of sentencing
for the second offence he was already serving a sentence of 5 years for the first, and the court
held that a consecutive sentence of 6 years for the second was not overall proportionate. It
was, perhaps an oversight in Ibbotson that the court did not refer to the Guideline on the
Sentencing Process issued by the Scottish Sentencing Council and approved by the High
Court of Justiciary with effect from 22 September 2021, which dealt with the totality
principle at paras 29 to 34, or the Guideline on Principles and Purposes of Sentencing which
identifies the core principle that sentences "must be fair and proportionate". The reference
9
to duplication of the sentencing purposes is, at best, superfluous. It is also unhelpful and
confusing and should be disregarded.
[25]
In the present case the respondent was not being punished- or sentenced - twice for
the same conduct. He appeared for sentence on different conduct, committed more than
three years after the conduct which resulted in the sentence he was already serving. The
core details of the most recent offending are summarised above. The offending which led to
the sentence already being served involved taking steps which he knew or suspected would
enable or further the commission of serious organised crime, by using technology to trace
the location of a mobile telephone, and direct an individual to continue with previously
arranged plans, all between 13 September and 23 November 2016. The subsequent
offending occurred three and a half years later and, whilst it involves a breach of the same
statutory provision, it is much more sophisticated, much more organised and operated on a
commercial basis, creating considerable risk to the wellbeing of the individuals whose
details he traced and sold.
[26]
There was absolutely no basis at all to consider that it was necessary to address what
might have been an appropriate sentence had the 2016 offending been dealt with at the same
time as the 2020 offending. The judge therefore required to consider the nature of the
offending before him, assess the seriousness of it by reference to culpability and harm,
including potential harm, and determine what would be an appropriate sentence to reflect
these factors. He required to consider the extent of any discount which should be applied as
a result of the plea. And finally, he had to determine how the fact that the respondent was
already serving a sentence should be dealt with. This did not require him to consider the
circumstances of that earlier offending, or bring it within some hypothetical overall sentence
by combining two quite separate and distinct instances of offending. Had he approached
10
the matter as he ought to have done, the judge would have identified an appropriate
sentence for the offending in question, having regard to its sophistication, extent and
severity and in light of the serious nature of the prior convictions, as one of 8 years. The
plea came very late in the day in a case where the main witnesses would be police officers
and we cannot see that a utilitarian value of more than one-sixth should have been
attributed to it, resulting in a sentence of 6 years and 8 months. Reflecting on the fact that
the respondent was currently serving a sentence of 5 years, and the effect of making the
sentence consecutive, it would have been reasonable to reduce that further and to pass a
consecutive sentence of 5 years and 6 months. We shall therefore quash the sentence
imposed and substitute such a sentence.
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