APPEAL AGAINST SENTENCE BY LIAM ALEC ROBERT HAY AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST SENTENCE BY LIAM ALEC ROBERT HAY AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_30 (08 July 2020) URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_30.html Cite as: [2020] HCJAC 30, [2020] ScotHC HCJAC_30, 2020 GWD 25-340, 2020 JC 325, 2020 SLT 1189

[1] This is an appeal against a life sentence with a punishment part of 19 years imposed

for the crime of murder, to which the appellant pled guilty in the following terms:

“on 26 June 2019 at the house known as Eynhallow, Greeness, Cuminestown, 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, Foresterhill Road, Aberdeen and you did

[2] The appellant was 20 at the time of the murder, and at the time of sentencing. The

punishment part of 19 was reduced from a headline figure of 20 to account for a plea

tendered at a continued Preliminary Hearing, although the case had not called on the

original date set. Per incuriam the sentencing judge omitted to explain that reduction as

required by section 196 (1A) of the Criminal Procedure (Scotland) Act 1995.

[3] The locus was the home of the victim who lived there with his family. The

grandparents of the appellant lived very close nearby, and his aunt had once lived in the

[4] At the end of a drink and alcohol binge which had lasted about 5 days, the last day

being at the home of the appellant’s grandparents, who were on holiday, the appellant

chased Austin Smith, with whom he had been drinking and abusing drugs to the home of

the deceased, wielding a baseball bat. This was at about 0430 hrs on 26 June. The deceased,

woken by the commotion, gave shelter to Smith, and allowed him to lock himself in the

bathroom. The appellant meanwhile tried to get into the house but was refused admittance.

He used a baseball bat to smash a glass panel in the door and entered the house. Until this

point, much of the incident had been seen by the deceased’s wife who had been watching

cctv footage from the home security system on her phone, but the footage did not capture

what happened thereafter. Once the appellant was in the house, Mrs McGladrigan, who by

now had called 999, heard her husband say “oh my God, oh my God are you crazy?” and

then “I’ve been stabbed”. She found her husband slumped to the floor and having difficulty

breathing. She tried to minister to his wounds with the advice of the 999 call operator. By

this time her husband’s lips were turning blue and he was very pale while still struggling to

breathe. Glancing at the fridge freezer she could see the reflection of a head and a hand with

blood on it and realised that the appellant was crouching at the end of the dining table,

breathing heavily. Wisely, and with considerable presence of mind, she decided not to alert

[5] When the police arrived the appellant was seen holding a blood stained knife in his

right hand. He required to be told repeatedly to drop the knife before he did so. He was

arrested and handcuffed. He repeatedly said to the police “watch the boy behind you,”

“he’s behind you”, “watch out for that one”. He resisted getting into the police car,

maintained that the police were not genuine, complained about not having his shoes (he had

arrived at the house barefoot) and gave his name as “Lewis Capaldi”. On arrival at the

police station at about 0710 he did not know why he was arrested and when told it was for

attempted murder said ”No- honestly?” He was medically examined and found fit to be

[6] Mr McGladrigan was treated by paramedics at the locus and taken to Aberdeen

Royal Infirmary where a blood transfusion was administered. Despite the efforts of medical

staff his heart went into ventricular fibrillation and could not be restarted and life was

[7] At post mortem pathologists found nine stab wounds to the face, leg and body, all of

which would have contributed to the fatal blood loss. The most significant wounds were to

the left chest wall and lower back. Underlying injuries were found to the heart, the kidney

and the spleen. The cause of death was specified as “multiple stab wounds to the back and

[8] The appellant appeared on petition at Peterhead Sheriff Court on 28 June 2019

charged with murder. The case was indicted to a preliminary hearing diet on 21 October

2019, which diet was postponed to 6 December 2019 to allow the defence to make further

enquiries into his psychiatric condition. On 6 December 2019 he pled guilty to the murder

[9] Senior counsel referred to the fact that the appellant had taken both alcohol and

drugs over a period of days leading to the offence. At the time, he thought that he was

being pursued. His perceptions that night were divorced from reality. He now realises the

horror of what he had done. He reiterated that he was ashamed, disgusted and remorseful.

He was the eldest of a family of four, with working parents and a stable background. His

schooling had been disrupted because of dyslexia and finding it difficult to mix with other

pupils. He started a welding course after school but struggled with the computer work and

[10] A psychiatric report stated that the appellant displayed no evidence of any formal

thought disorder or delusional beliefs. He had displayed psychotic symptoms at the time of

the offence, thinking he was in danger. He also suffered hallucinations which were

apparent when he was in the police van but these symptoms were transient and resolved in

a short time. They were related to his significant use of illicit substances in the 7 days before

the murder and did not raise an issue of diminished responsibility.

[11] The appellant had a long standing habit of drug abuse. He used MDMA, cocaine,

LSD and acid. His preferred drug was M Cat (a synthetic Class B drug). The appellant

expressed considerable remorse, and also disgust at friends who continued to abuse drugs

[12] The sentencing judge imposed a sentence of 19 years, reduced from 20 for the plea.

[13] It was submitted that the sentence was excessive having regard to the youth of the

appellant and the circumstances of the offence. Whilst the psychiatric report excluded

diminished responsibility its author noted that there was evidence the appellant was

suffering psychotic symptoms at the time of the incident, including delusions that he was at

risk of harm. These symptoms included hallucinations which were evident when he was in

the police van. It was submitted that the youth of the appellant was a significant factor,

having regard to the authorities that in sentencing a young person it is to be borne in mind

that maturity may not be developed and a primary consideration has to be the welfare and

best interests of the individual, so that they can come out of prison as a responsible and

valuable member of society. The trial judge had said “I also felt 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.” However she did not explain in what way a longer period in custody would

serve his best interests. The appellant is someone who appears capable of rehabilitation, he

has a supportive family and a good network of support, he has managed a reasonable level

of achievement including passing SQA modules in 4 subjects. The offence was premeditated

and out of character. A long punishment part deprives the appellant of the chance of earlier

“I am aware that one year of discount from 20 is a low, perhaps even nominal, level

of discount. I chose that figure because of the very serious nature of the crime. “

This would appear to run contrary to the need to avoid double counting referred to in

[14] The modern treatment of the sentencing of young people can probably be traced

back to Kane v HMA 2003 SCCR 749 where the Lord Justice Clerk (Gill) noted, para 11:

“The sheriff thought that considerations of retribution and deterrence were decisive.

These are material considerations; but there is more to sentencing than sending

messages to society, particularly in the case of a young offender. The court has to

consider the personal circumstances of such an offender; his home background; the

extent to which he may not be solely responsible for his behavioural problems; and

the opportunities that a non-custodial sentence may give for rehabilitation before he

Since then there has been an increasing appreciation that whilst some general idea of the

recognised levels of sentencing ranges for specific offences may provide a useful cross-

reference, the sentencing of a child or a young person is in fact a wholly different exercise

from that of sentencing an adult. In H v HMA 2011 JC 149 (which involved the imposition of

a punishment part of 11 on a 15 year old for a concerted murder) the court (para 14) said that

“... the fixing of a punishment part in the case of a child may involve different

considerations, or at least a different method of weighing the relevant considerations,

“[18] As the trial judge duly recognised and took into account, the sentencing of

young offenders involves additional considerations from those applied when dealing

[16] These observations were picked up in Campbell v HMA 2020 JC 47:

“[26] We recognise that the trial judge identified the process of sentencing a child,

whose best interests must be taken into account as a primary factor, as a different

[30] The matter is further complicated when the offender is a child, where the

process of sentencing involves considerations which are different from those which

[17] It is because the exercise of sentencing a child or young person is different from that

of sentencing an adult, that an approach which simply addressed the sentence which would

be imposed on an adult and then applied a discount to reflect the fact that the accused is a

child or young person would be inadequate. This is a point which has been addressed

several times. In H the court noted that whilst it was not illegitimate to have regard to adult

sentencing levels to provide a background understanding of the general sentencing range

for the offences in question, nevertheless “any sentence imposed on a child, with his welfare

as a primary consideration, ought normally to be significantly below those levels”. The

“…the sentencing process should not simply involve an exercise of looking at past

cases involving adult offenders committing similar crimes and then deducting a

[18] This issue was discussed also in McCormick v HMA 2016 SCCR 308, where the trial

judge had selected the sentence by considering the length of sentence which might be

appropriate for an adult in the circumstances of this case, and applied a reduction from that.

Whilst it was not illegitimate to consider the sentence which an adult offender might attract,

in doing so the court should take careful regard of the observations in H para 15.

[19] In Green v HMA 2020 JC 90, the trial judge, having selected a punishment part for a

30 year old accused, proceeded to consider the appropriate sentence for the remaining

accused, aged 20 and 18. In the appeal the Lord Justice General (Carloway), delivering the

“It is then not just an exercise of comparing the personal circumstances of the other

appellants and selecting an appropriate tariff. Mr Noonan was only 20 years old at

the time of the murder and Mr Brown was just 18 years old. Although both were

technically adults, their relative lack of maturity is a significant factor. The custodial

regimes correctly treat those under 21 years old differently from those who have

reached that milestone in life (see Hammond, Literature Review of Youth Offending and

Sentencing in Scotland and Other Jurisdictions , para 3.6, 'The different stages of brain

development' (suggesting a 'young adult' stage of between 18 and 25 years old)).

[20] In the present case, the sentencing judge recognised that the youth and immaturity of

a young person, and their best interests, required to be taken into account in sentencing,

under reference to some of the authorities listed above. However, in explaining the process

“[40] I decided that an adult would have required to serve a punishment part of at

least 22 or 23 years. I reduced that to 20 years to take account of youth.”

[21] It appears therefore, that the appropriate punishment part was selected by

considering that which would be appropriate for an adult and reducing it to take account of

the youth of the appellant. As the authorities show, the problem with this approach is that it

is unlikely truly to reflect the fact that the exercise of sentencing a child or young person is

different from that of an adult. Such an approach is unlikely to result in a full and careful

evaluation of the factors which make the exercise different of the type which was conducted

in Campbell having regard to the issues identified by Lady Hale in R (Smith) v Secretary of

State for the Home Department [2006] 1 AC 159. Furthermore, in H the court noted that even if

a comparison were made between the appropriate sentence for a child or young person

compared with an adult, the former “ought normally to be significantly below” the levels of

the latter. In the present case the sentencing judge herself recognised that a headline

punishment part of 20 was a severe sentence. She explained that in selecting the relevant

“I also felt that in the interests of his rehabilitation, a long period to mark the serious

[22] This is a somewhat puzzling comment, particularly since the judge accepted as

genuine the appellant’s expressions of remorse and his difficulty in believing what he had

done. She also recognised that he was well aware of the harm he had caused, both to the

McGladrigan family and to his own family. The psychiatric report indicated no personality

disorder or serious mental illness. The only significant issue in his background is his

polysubstance abuse, which, on all accounts, has ceased during his incarceration. This

substance abuse also led to a patchy employment history. The appellant has one prior

conviction at summary level. He has a close and supportive family. He has accepted full

responsibility for the offence and in the psychiatric report and CJSWR there is no sign of any

efforts to deflect responsibility. The latter notes that he has reflected on the lifestyle choices

which resulted in the abuse of drugs and led to the self-inflicted condition in which the

offence was committed. A recognised aspect of sentencing a young person is that they

generally have a greater capacity for change, and thus rehabilitation, than an adult. In short,

there is no basis for thinking that there is in the appellant’s background any reason to

suggest that a longer period before he could even apply for parole would be in the interests

[23] We recognise that the appellant was not a child or even a teenager at the time of the

offence, and that a punishment part at the level imposed in H would not be appropriate.

Nevertheless, as was noted in Green v HMA 2020 JC 90, para 82, although not all of the same

considerations as may be taken into account for child offenders will apply to a young adult,

their youth remains a material factor in the sentencing exercise. For the reasons we have

highlighted we consider that the sentencing judge may be said to have erred in the process

by which she arrived at the sentence imposed, resulting in the imposition of a sentence

[24] The second feature of the sentence which caused us concern was the approach taken

to the discount. We accept, of course, that, per Gemmell v HMA (para 31, Lord Gill) the

granting of a discount is a matter for the discretion of the sentencing judge, but that

discretion requires to be exercised according to the broad general principles set out in that

case (para 32, Lord Gill). Central to these principles is that the only factor which is relevant

to the granting of a discount is the utilitarian value of the plea. Factors relevant to general

sentencing objectives, such as retribution, denunciation, public protection and deterrence,

are factors to be taken into account in setting the headline sentence (para 37). The same

applies to mitigating or aggravating factors such as prior convictions, planning or the

severity of the crime. As was pointed out in Gemmell (para 55), there is nothing in the

wording of section 196 of the Criminal Procedure (Scotland) Act 1995 to suggest that the

court should disaggregate any individual element from the starting figure and exclude it

from the application of the discount. In para 57 Lord Gill went on to explain that:

“if the court should reduce the discount because of a factor that it has taken into

account as an aggravating factor in its assessment of the headline sentence — the

accused’s criminal record, for example — there will be double counting, unfairly to

[25] That is what appears to have happened in this case. The sentencing judge in her

“I am aware that one year of discount from 20 is a low, perhaps even nominal, level

of discount. I chose that figure because of the very serious nature of the crime.”

The serious nature of the crime is a factor which requires to be, and in this case was, taken

into account by the sentencing judge in selecting the headline sentence. To select that factor

as a reason for restricting the discount attributed to the utilitarian value of the plea is not in

[26] We have therefore concluded that the sentencing judge erred and that the issue of

sentence is at large for this court. In addressing the appropriate sentence we recollect the

reasons for distinguishing the sentencing of a child or young person from that of an adult, as

identified in Smith and summarised in Campbell v HMA (para 27), namely (i) lack of maturity

and an underdeveloped sense of responsibility, with a concomitant degree of impetuosity

and recklessness; (ii) a greater likelihood of falling under negative influences, from peers or

otherwise, including the difficulty of extricating themselves from a criminogenic setting; and

(iii) that personality traits of the young are more transitory and less fixed than in adults,

resulting in a greater capacity for change, with a higher prospect of reintegration and

“These factors require to be examined, not from the standpoint of the risk the

individual may present, but so that, where appropriate, the court may ensure that

the sentence imposed properly allows for the process of maturation, with the

possibility of the development of responsibility and the growth of a healthy adult

[27] Looking at the three factors referred to in Smith, it seems that the influence of peer

pressure may have played a role in the appellant’s first starting to use drugs, but in terms of

the offence itself it appears to have no bearing. The appellant was himself responsible for

his choices in taking drugs and participating in a prolonged “bender”. The first factor is

clearly a relevant one, a lack of maturity and an underdeveloped sense of responsibility

being found in youth much more often than in adults, often resulting in impetuous and ill-

considered actions and decisions. This has a bearing on the drug use; not that it excuses in

any way his behaviour or offers mitigation for it, but that it is one type of reckless and

irresponsible behaviour to which youth may be more prone than adults. The third element

is clearly a significant one in the present case, having regard to the factors favourable to a

good rehabilitative outcome, to which we have already referred. As it was put in Smith

“… an important aim, some would think the most important aim, of any sentence

imposed should be to promote the process of maturation, the development of a sense

of responsibility, and the growth of a healthy adult personality and identity. … It is

important to the welfare of any young person that his need to develop into a fully

functioning, law abiding and responsible member of society is properly met. But that

is also important for the community as a whole, for the community will pay the

price, either of indefinite detention or of further offending, if it is not done.”

[28] At the same time, we understand that the welfare of the young person, and the

“not the only primary consideration, since the legislation requires that the

seriousness of the offence be taken into account and that the period selected satisfies

the requirements for retribution and deterrence…..” (H, para 14)

The Guideline on the Principles and Purposes of Sentencing issued by the Scottish

Sentencing Council, and approved by the High Court of Justiciary (November2018) states

that amongst the purposes of sentencing are punishment (which includes deterrence), and

disapproval of offending behaviour. Having regard to these purposes and to the statutory

requirement to specify a punishment part by reference to deterrence and retribution, we

“Even with a child offender, the minimum period of custody for the crime of murder

is likely to be significant in recognition of the need for retribution for the deliberate

[29] This was a serious, unprovoked and distressing offence, aggravated by having been

committed in the victim’s own home and in the presence of members of his family. Having

regard to the circumstances and the relative difference in age, it is clear that a punishment

part well in excess of that imposed in H was appropriate. Having regard to all relevant

factors we consider that an appropriate headline sentence would have been 18 years. There

is usually a considerable utilitarian value in a plea of guilty to a charge of murder. Having

regard to the timing of the plea at what was the first calling of a preliminary hearing we

consider that a discount of 2 years was merited, resulting in a punishment part of 16.

[30] As with all punishment parts, this is not an indication of the date when the appellant

will be released. It specifies rather the period which must pass before the appellant may

even apply for parole, a process which is not easy. We shall allow the appeal to the extent of

substituting a punishment part of 16 years for that of 19 years imposed by the sentencing

Scottish High Court of Justiciary Decisons