Liam Alec Robert Hay v. Her Majesty’s Advocate [2020] HCJAC 30


Note of appeal against sentence:- The appellant pled guilty to a charge of murder at a Preliminary Hearing. The charge was in the following terms:- “on 26 June 2019 at the house … Turriff you Liam Alec Robert Hay did repeatedly strike the rear door with a baseball bat, smash a window in the door, unlock the door, force entry to the house and there assault Anthony Edward Stewart McGladrigan, residing there and repeatedly strike him on the head and body with a knife and he was so severely injured that he died later that day at Aberdeen Royal Infirmary … and you did murder him.” Following the obtaining of a Criminal Justice Social Work Report the sentencing judge imposed a life sentence with a punishment part of 19 years, reduced from a headline sentence of 20 years on account of the plea of guilty. At the time of the commission of the crime the appellant was 20 years of age. The appellant appealed against the sentence imposed it being contended that the punishment part imposed was excessive in light of the age of the appellant and the circumstances of the offence. It was submitted that whilst a psychiatric report obtained did not disclose any evidence of any formal thought disorder or delusional beliefs and excluded diminished responsibility there was evidence the appellant was suffering psychotic symptoms at the time of the incident, including delusions and hallucinations that he was at risk of harm. In relation to his age it was submitted that this was a significant factor which the sentencing judge had given insufficient weight to. It was submitted that when a court is sentencing a young person regard should be had to the fact that maturity may not be developed and the primary consideration should be to be the welfare and best interests of the young person, so that on leaving prison they might be a responsible and valued member of society. It was further submitted that the appellant was someone who was capable of rehabilitation and enjoyed a supportive family and support network and had gained some college qualifications and that the offence was out of character. It was submitted that the discount of one year which had been limited by the sentencing judge on the basis of the very serious nature of the crime was contrary to what was said at paragraph 57 of Gemmell v HMA 2012 JC 223 and the risk of “double counting”. Here the court allowed the appeal. The court restated the sentencing practice in relation to young people and referred to a number of cases. The court highlighted the difficulty in selecting a punishment part which would be appropriate for an adult and reducing it to take account of the youth of the offender, rather, it is necessary to make a full and careful evaluation of factors which are different to those involving an adult (Campbell v HMA 2020 JC 47). These include:- (1) a lack of maturity and an underdeveloped sense of responsibility; (2) a greater likelihood of falling under negative influences and difficulty of extricating themselves from a criminogenic setting; and (3) that personality traits of the young are more transitory than in adults with a greater capacity for change, reintegration and rehabilitation. The sentencing judge also stated that “…in the interests of his rehabilitation, a long period to mark the serious nature of what he had done could be to his advantage…”. The court queried the appropriateness of that comment in light of what the sentencing judge had accepted were genuine expressions of remorse on behalf of the appellant. The court considered that the sentencing judge had erred in the sentencing process and the headline punishment part selected of 20 years was excessive having regard to all of the factors. In addition, the court considered that the sentencing judge had given insufficient weight to the utilitarian value of the plea of guilty at the Preliminary Hearing. Whilst the issue of discount is a matter for the discretion of the sentencer it is necessary to have regard to the general principles as set out in Gemmell v. H.M.A. and in using the serious nature of the crime as a reason to restrict the applicable discount, when that factor had already been used in determining the headline figure, the sentencing judge had fallen into error. Having regard to all of the relevant factors, the court considered that a headline sentence of 18 years was appropriate and a discount of 2 years to reflect the utilitarian benefit of the plea should be allowed resulting in a punishment part of 16 years.