Hay v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lord Justice Clerk (Dorrian),Lord Brodie |
| Judgment Date | 08 July 2020 |
| Neutral Citation | [2020] HCJAC 30 |
| Docket Number | No 32 |
| Date | 08 July 2020 |
| Court | High Court of Justiciary |
[2020] HCJAC 30
Lord Justice Clerk (Dorrian), Lord Brodie and Lord Turnbull
Campbell v HM Advocate [2019] HCJAC 58; 2020 JC 47; 2019 SLT 1127; 2019 SCCR 367
Gemmell v HM Advocate [2011] HCJAC 129; 2012 JC 223; 2012 SLT 484; 2012 SCCR 176; 2012 SCL 385
Green v HM Advocate [2019] HCJAC 76; 2020 JC 90; 2020 SCCR 54; 2019 GWD 39–631
Hibbard v HM Advocate sub nom H v HM Advocate [2010] HCJAC 111; 2011 JC 149; 2011 SLT 247; 2011 SCCR 25; 2011 SCL 246
Kane v HM Advocate 2003 SCCR 749; 2004 GWD 8–179
Kinlan and Boland v HM Advocate [2019] HCJAC 47; 2019 JC 193; 2020 SLT 97
McCormick v HM Advocate [2016] HCJAC 50; 2016 SLT 793; 2016 SCCR 308; 2016 SCL 651
R (on the application of Smith) v Secretary of State for the Home Department [2005] UKHL 51; [2006] 1 AC 159; [2005] 3 WLR 410; [2006] 1 All ER 407; [2005] HRLR 33; [2006] 1 Prison LR 12
Scottish Sentencing Council, Principles and Purposes of Sentencing: Sentencing guideline (Scottish Sentencing Council, Edinburgh, November 2018) (Online: https://www.scottishsentencingcouncil.org.uk/media/1964/guideline-principles-and-purposes-of-sentencing.pdf (6 August 2020))
Justiciary — Sentence — Life sentence — Punishment part — Appellant aged 20 years at time of offence — Whether proper account taken of appellant's youth in selecting punishment part — Whether punishment part of 19 years excessive
Liam Alec Robert Hay was charged on indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, the libel of which set forth a charge of murder. He pled guilty at a preliminary hearing at the High Court of Justiciary in Glasgow. On 13 January 2020, he was sentenced to life imprisonment with a punishment part of 19 years, reduced from 20 years. He appealed against the punishment part of the sentence to their Lordships in the High Court of Justiciary.
The appellant pled guilty at a preliminary hearing to a charge of murder. At the time of the murder the appellant had been 20 years old. The appellant was sentenced to life imprisonment with a punishment part of 19 years, reduced from 20 years to take account of the timing of the plea. He appealed against the punishment part of the sentence.
The appellant argued that the sentence was excessive having regard to his youth and that the judge had erred in assessing the appropriate discount to reflect the timing of his early plea.
Held that: (1) the sentencing of a young person was a wholly different exercise from that of sentencing an adult, as a young person had a greater capacity for rehabilitation, and the judge had erred in selecting the appropriate punishment part for an adult and applying a discount to that to take account of the youth of the appellant, resulting in an excessive sentence being imposed (paras 14–23); (2) the judge had erred by taking into account the serious nature of the offence when restricting the level of discount, as that was only relevant to the selection of the headline sentence (paras 24, 25); (3) having regard to the appellant's youth, the appropriate punishment part was one of 18 years, reduced to 16 years to take account of the early guilty plea (paras 26–30); and appeal allowed.
Gemmell v HM Advocate 2012 JC 223 and Campbell v HM Advocate2020 JC 47applied.
The cause called before the High Court of Justiciary, comprising the Lord Justice Clerk (Dorrian), Lord Brodie and Lord Turnbull, for a hearing, on 25 June 2020.
At advising, on 8 July 2020, the opinion of the Court was delivered by the Lord Justice Clerk (Dorrian)—
Opinion of the Court— [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:
‘[O]n 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 murder him.’
[2] The appellant was 20 years old 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 sec 196(1A) of the Criminal Procedure (Scotland) Act 1995 (cap 46).
[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 home then occupied by the deceased.
[4] At the end of a drink and alcohol binge which had lasted about five 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 04.30 hours 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 closed-circuit television 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 the emergency services, 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 emergency services 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 the assailant to the fact that she knew he was there.
[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...
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