A SEX offender who escaped jail for cuddling and kissing a child has been locked up for using a mobile phone.
Josh Birnie, 22, pleaded guilty at Aberdeen Sheriff Court to defying a sexual offences prevention order issued last July, that included the prohibition from using a mobile phone.
He was sentenced to eight months in jail after admitting using his brother’s phone to make calls and use the internet between February 21 and March 1 this year.
Defence agent Chris Maitland said there were family issues, making the use of a phone critical.
Sheriff Graeme Napier, who locked Birnie up for eight months, said it was unacceptable not to notify police, adding he could have used a public telephone.
Birnie, a prisoner at Craiginches, was put on the joint sex offenders programme last year as an alternative to a custodial sentence after he previously admitted sexual activity with a child in 2011.
Aberdeen sex assault teen in new court bid
An Aberdeen teenager who abducted a schoolgirl before sexually assaulting her has launched a bid to clear his name.
Josh Birnie was sentenced to 18 months’ detention at Aberdeen Sheriff Court in January last year after being convicted of carrying out the sex attack on the 14-year-old.
The incident, which occurred on March 17, 2009, also saw his name added to the sex offenders register.
He had denied abducting the schoolgirl, kissing her, carrying out a sex attack on her or holding her against her will at his home address, which was given at the time as Arnage Place, Mastrick.
Birnie, now 19, was also charged with sending indecent and obscene text messages to a 13-year-old girl in June 2009, which he admitted.
His appeal first went to court in November last year when he argued “no reasonable jury, properly directed could have returned a verdict of guilty” to the charge of indecent assault and abduction.
The court observed the victim’s account had only been supported by Birnie’s replies, however, and in view of the Supreme Court’s ruling in the Peter Cadder case, he was given a week to lodge an additional ground for appeal.
Glasgow teenager Cadder was convicted of two assaults in 2009, but in October last year the Supreme Court upheld his appeal on the grounds the conviction was based on evidence gained before he had spoken to his lawyer and was therefore a breach of his human rights.
As the Crown’s argument in respect of Birnie, who was 17 at the time, relied on an interview conducted without a lawyer present, the court observed the Cadder ruling applied.
The Crown argued Birnie waived this right by refusing legal assistance, which he did on a number of occasions. However, yesterday Lord Justice General Lord Hamilton said a youth could not forgo such advice without having had the benefit of it first.
Birnie amended his grounds for appeal accordingly, arguing the Crown’s reliance on “utterances” made in the absence of a lawyer had “deprived him of a fair trial”.
The judgment, delivered at the High Court of Justiciary in Edinburgh, concluded the court was “satisfied” Birnie’s case had been made.