His Majesty’s Advocate v. Craig Rayburn [2023] HCJAC 11

Note of appeal under sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995:-On 17 January 2023, at Edinburgh Sheriff Court, the appellant pled guilty under the accelerated procedure under section 76 of the 1995 Act to a contravention of section 113(1)(a) of the Sexual Offences Act 2003, namely, that he breached the terms of a Sexual Offences Prevention Order by downloading a mobile application from the internet and repeatedly installed a separate browser and then deleted the application and browser. The sheriff imposed a a fine of £1,000 discounted from £1500 on account of the plea of guilty. The Crown appealed against the sentence imposed on the grounds that it was unduly lenient it being submitted that 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 and the sentence failed to satisfy the purposes of sentencing in the Scottish Sentencing Council’s Principles and Purposes of Sentencing Guideline, in particular, the protection of the public, punishment, rehabilitation and the expression of disapproval of offending behaviour. It was further submitted that the offence was serious and had significant aggravating and no mitigatory features and merited a substantial period of imprisonment particularly given the respondent had previously been sentenced to 15 months for an identical offence. On behalf of the respondent it was conceded that the sentence imposed was indeed unduly lenient and the court should consider the sentence de novo. It was submitted on behalf of the respondent that he had no convictions prior to 2017 and had complied with the SOPO since 2020 and had committed the offences during a particularly troubled period of his life and there was no suggestion that the offences were committed with the intention to commit further criminal acts. In addition, he had pled guilty at an early stage and had already paid the fine. Here the court considered that the sentence had been unduly lenient and allowed the appeal. Given the respondent had recently committed an identical offence for which he received a custodial sentence of 15 months imprisonment a further custodial sentence was inevitable and the court imposed a sentence of 12 months' imprisonment, discounted from a headline sentence of 18 months to reflect the plea of guilty.