Aberdeenshire man has murder sentence reduced

Liam Hay, who was 20 years old at the time of the murder and at the time of sentencing,  argued that the sentence was excessive on account of his youth and the potential for rehabilitation.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Turnbull.

Long-standing drug habit

The appellant entered the home of the deceased, Anthony McGladrigan, at 4:30am on 26 June 2019 while pursuing another man with whom he had been drinking and abusing drugs. He used a baseball bat to smash in a glass panel in the door before attacking the deceased with a knife. 

The deceased’s spouse, who had watched part of the incident on CCTV, called the police, who arrived to arrest the appellant. The appellant repeatedly told the police that there was someone behind them and maintained that they were not genuine.

Mr McGladrigan later died at Aberdeen Royal Infirmary despite the best efforts of medical staff. The cause of death was identified in the post mortem as multiple stab wounds to the back and chest.

The appellant pled guilty to the charge of murder at Peterhead Sheriff Court in December 2019. In mitigation, senior counsel for the appellant referred to the appellant’s use of drugs and alcohol over the preceding days creating a false perception of reality, the appellant’s long-standing habit of drug use, and the considerable remorse he expressed.

The sentencing judge imposed a sentence of 19 years’ imprisonment, reduced from 20 for the guilty plea. It was submitted for the appellant that this sentence was excessive having regard to his youth and the circumstances of the offence.

It was submitted that the psychiatric report prepared on the appellant, while it excluded diminished responsibility, showed there was evidence that the appellant was suffering transient psychotic symptoms at the time of the incident, including hallucinations.

The trial judge had said she felt a longer period in custody would be in the interests of his rehabilitation, however she did not explain in what way a longer period in custody would serve his best interests. It was submitted that the appellant appeared capable of rehabilitation and had a good network of support, and that the low discount on the sentence ran contrary to the need to avoid double counting in sentencing.

Different approach to sentencing

The opinion of the court was delivered by Lady Dorrian. Noting that the sentencing judge had some regard to the youth of the appellant, she said: “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.”

On the sentencing judge’s comments about a longer sentence being in the appellant’s interest, she said: “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.”

She continued: “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 of his rehabilitation or otherwise required by circumstances.”

On the approach taken to the discount, she said: “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 accordance with the principles enunciated in [Gemmell v HM Advocate (2012)].”

Thus, the court concluded that the issue of sentence was at large. Addressing the appropriate sentence in this case, Lady Dorrian said: “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.”

She continued: “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.”

For those reasons, the appeal was successful to the extent of reducing the punishment part of the sentence.