Murderer with 57 previous convictions loses appeal against 23-year punishment part of life sentence

About this case:

• Citation:
  [2024] HCJAC 20
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Christoper McGowan, aged 28 at the time of sentencing, had 57 previous convictions for various offences accrued throughout the second half of his life and was a habitual user of cannabis and cocaine. He argued that the punishment part selected ought to have been shorter due to the murder not involving a weapon such as a knife.

The appeal was heard by the Lord Justice General, Lord Carloway, with Lord Matthews and Lady Wise. Jackson KC appeared for the appellant and C Fyffe KC, solicitor advocate, for the Crown.

Brutal and heartless

On 28 September 2023, the appellant was convicted of an offence that libelled that, on 28 November 2021, he assaulted the deceased Claire Inglis by striking her on the head and body, burning her face with a lighter, and eventually forcing a tissue down her throat. The locus was the flat that the deceased shared with her 7-year-old son, into which the appellant had moved about eight weeks before the murder. In his report, the trial judge commented that nothing he could say could convey the true horror of the death and he had rarely seen as brutal and heartless a killing as this one over his decades of practise in the High Court.

The appellant was a habitual abuser of both drink and drugs. The deceased also abused these substances, but to a significantly lesser extent. In the days before the murder, and during the evening leading up to its commission, the appellant was accustomed to being verbally abusive, overbearing, contemptuous and controlling of, and towards, the deceased. Of the 23 years of the punishment part, one year was imposed in respect of the bail aggravations and another by the abuse of partner aggravation.

A Criminal Justice Social Work Report prepared for the sentencing diet summarised the appellant’s 57 previous convictions, which began with a court appearance at the age of 14. At the same sentencing diet he was given nine months’ imprisonment for assault. His interactions with the criminal justice system became so frequent that it was difficult to track the many processes of which he was the subject.

It was submitted for the appellant that the punishment part of 23 years was excessive. While a substantial punishment part was appropriate, no weapon such as a knife had been used. It was noted that the case of Boyle v HMA (2010) envisaged a 16-year punishment part as a starting point for murders committed with a knife, while in MacDougall v HMA (2021), in which the victim was almost decapitated, the punishment part was reduced from 23 years to 20 where there was a significant previous conviction involving a knife.

Record considerably worse

Delivering the opinion of the court, Lord Carloway began: “The question for the court is whether a miscarriage of justice has occurred by virtue of the sentence being excessive. The court does not consider this punishment part of 23 years to be excessive, given the brutality of the attack, the appellant’s extensive criminal record and the domestic context in which the murder took place.”

Explaining this decision further, he said: “If the sentence were to have been selected prior to the commencement of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, there is little doubt that, as the judge has done here, regard would have been had to the domestic context of the crime. However, before the Act, there was a tendency by some judges to look upon that context as a mitigating rather than an aggravating factor. The Act makes it clear that the reverse should be the case by elevating that context to one of a formal aggravation.”

He continued: “The sentencing exercise, no matter how artificial it may seem in some cases, thereby becomes one of selecting a punishment part for the offence, were it to occur in a non-domestic context, and then increasing it to take account of the aggravation. In Rizzo v HM Advocate (2020), the appellant was aged 23 with one previous domestic violence conviction. It was also a brutal murder of a partner, in which the appellant showed little remorse, and continued to maintain his innocence. Twenty two years was selected as the punishment part. This appellant’s criminal record is considerably worse.”

Lord Carloway concluded: “In this case, the trial judge had added one year to a 22 year punishment part (including the bail aggravation). In doing so, it is relatively clear that he had already taken the domestic context into account in selecting the headline sentence. Given the terms of the 2016 Act, this may not be the correct approach. It results in the penalty attributable to the aggravation being seen as very slight (less than 5% of the total sentence). However, the overall punishment part is, as already explained, not excessive.”

The appeal against sentence was therefore refused.