Alesha MacPhail killer Aaron Campbell succeeds in appeal to have ‘excessive’ punishment part reduced

Aaron Campbell, who was sentenced to detention for life with a punishment part of 27 years for the abduction, rape and murder of Alesha MacPhail on the Isle of Bute in July 2018, argued that the minimum custodial period before he could apply for parole was “excessive”.

The High Court of Justiciary Appeal Court reduced the punishment part to 24 years after ruling that the trial judge Lord Matthews made “inadequate allowance” for the “mitigatory effect” of the appellant’s youth.

‘Vile crimes’

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Drummond Young, heard that the appellant, who was 16 at the time of the offence and trial, had pleaded not guilty and relied on a special defence of incrimination of a young woman, who was the partner of the deceased’s father.

He gave evidence on his own behalf in support of that defence, but was convicted by unanimous verdict following a trial at the High Court in Glasgow.

The trial judge described the evidence against the appellant as overwhelming, and during the sentencing hearing in March this year he said the circumstances surrounding the vile crimes and the manner of their commission had aroused “revulsion and disbelief”, adding that he was “shocked” when he read the contents of the criminal justice social work report and the report by a consultant forensic clinical psychologist.

In the post-trial reports the appellant admitted the crime, saying he was “satisfied” with the murder.

Having been addressed on the approach to sentencing a child under reference to McCormick v HM Advocate 2016 SCCR 308, in which dicta of Lady Hale in R (Smith) v Secretary of State for the Home Department [2005] UKHL 51 were adopted, Lord Matthews sentenced the appellant to detention without limit of time with a punishment part of 27 years.

In reaching the figure of 27 years the trial judge had regard to the case of Mitchell v HM Advocate 2012 JC 13, in which Luke Mitchell was sentenced to life with a 20-year punishment part after trial for the murder of Jodi Jones; the appellant being just under 15 years old at the date of the murder and the deceased being 14 years old.

The judge also had regard to the English case of R v Cornick [2015] EWCA Crim 110, in which Will Cornick was sentenced to a minimum of 20 years after pleading guilty to killing a teacher when he was 15 years and 10 months old – reduced from a starting point of 25 years to reflect age, guilty plea and mental health.

‘Excessive sentence’

However, counsel for Campbell argued that the punishment part selected by the trial judge bore too great a resemblance to what would have been imposed on an adult, rather than a child, and was thus “excessive”.

It was accepted that the crime was an “uncommonly grave one” which, for an adult, would have attracted a substantial punishment part, and that it was an “appalling and heinous offence”.

But it was submitted that the trial judge placed “undue weight” on the “pessimistic assessment” of the appellant’s ability to change as set out in psychologist Dr Gary Macpherson’s report, which was more a question of future risk than an aggravation to be reflected in the punishment part.

In particular and by inference from his sentencing remarks, it was argued that the trial judge “erred” in concluding that the challenges apparent in modifying the appellant’s thinking and behaviour reduced the effective mitigatory value of his youth for such terrible offending.

Further, and in any event, it was submitted that the trial judge erred in taking account of the sentence in R v Cornick, which was determined in the setting of a sentencing regime where the starting point for knife crime, set in Scotland by reference to HMA v Boyle 2010 JC 66, was much higher than in this jurisdiction.

Allowing the appeal, the judges observed that even the most experienced judge may find it difficult to identify where that balance lies between setting an appropriate punishment part to meet the requirements of retribution and deterrence and assessing future risk to the public.

‘Mitigatory effect of youth’

Delivering the opinion of the court, the Lord Justice Clerk said: “In the present case, whilst we are satisfied that the trial judge was searching for this balance, we have reached the conclusion that the detailed information suggesting the extent to which the appellant is likely to present a future risk, coupled with the appalling nature of the crime and the bleak prospects for change, led the trial judge to make inadequate allowance for the mitigatory effect of youth, even in such a shocking offence as the present.

“Acknowledging as we have done the difficulty in comparing one case with another, from these cases it can be seen that even for an adult a punishment part of 27 years would be reserved to mark only very serious crimes. One would expect the sentence on a youth for comparable crimes to be proportionately lower.”

Lady Dorrian concluded: “Against the cases to which we have made reference, a punishment part in excess of 20 years was plainly merited. We have concluded that a punishment part of 24 years would be appropriate to reflect the appellant’s youth. We will accordingly allow the appeal to the extent of substituting that period for the sentence imposed.

“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.

“As the trial judge had observed, and as was recognised by counsel for the appellant, ‘whether [the appellant] will ever be released will be for others to determine but as matters stand a lot of work will have to be done to change [the appellant] before that could be considered. It may even be impossible’.”