Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. GARY JOSEPH McGOWAN [2001] ScotHC 66 (26th July, 2001)

[1] This is an appeal by the Lord Advocate in terms of Sections 108(2)(a) and 110 of the Criminal Procedure (Scotland) Act 1995 against the sentence imposed on the respondent, Gary Joseph McGowan, who pled guilty, on 30 January 2001, at the High Court at Glasgow to a charge of murder. The murder was committed on 19 June 2000 at a time when the respondent was 15 years of age. By the time he pled guilty he was sixteen. The presiding judge adjourned the diet and ordered that advice from the Children's Panel and a Social Enquiry Report should be made available. Eventually, on 16 February 2001 the judge imposed a sentence of detention without limit of time and in terms of Section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ordered that the respondent should serve a period of six years in custody before the provisions of Section 2(4) and (6) of the 1993 Act should apply.

[2] The Lord Advocate appealed on the ground that the judge had erred in failing to take account of the decision of this court in Murray v. H. M. Advocate; Simpson v. H. M. Advocate 2000 J.C. 102. In his report to this court the sentencing judge admitted that he had indeed made this mistake and, when the appeal first called before the court on 24 May 2001, counsel for the respondent conceded that the judge had indeed erred in this way. In the circumstances the court continued the appeal and requested the sentencing judge to provide a supplementary report detailing the circumstances of the offence as narrated to him and the submissions made in mitigation.

[3] That report is now to hand. It shows that on the day in question the victim, a lady of 67, had spent the day with her husband in Glasgow city centre. On their way home they walked across the Suspension Bridge and, as they were going up the stairs near the Sheriff Court building, the deceased's husband became aware that someone wearing an anorak with a hood up had come up behind them. He appeared to be weaving from side to side. The deceased's husband heard a disturbance and looked round to see his wife engaged in a struggle with the respondent who had a knife in his hand. The respondent seemed to be trying to grab his wife's handbag but she was resisting by striking him with her bag of shopping. When she did this, the respondent thrust a knife into the side of her temple and ran off up the stairs with the handbag. It was apparent to those who saw the incident, including the deceased's husband, that the respondent was under the influence of drink or drugs or both. The deceased had suffered an incised wound measuring 4.4 cm. in the left temple area and she never regained consciousness. The sentencing judge describes this as a classic mugging by an intoxicated youth armed with a knife which he used with fatal consequences on an entirely innocent member of the public going about her lawful business.

[4] At the initial hearing counsel indicated generally that the respondent had a disturbed background both in family and in educational terms. He had been under the supervision of the local authority from time to time, particularly in relation to his educational needs. Early in his teens he had developed an addiction to both drugs and alcohol and that problem did not appear to have been resolved at the time of the crime. As we have indicated, the judge adjourned to obtain the advice of the Children's Panel and a Social Enquiry Report. At the further hearing counsel for the respondent simply referred to the terms of those documents.

[5] In his further report, the judge says that he took a very serious view of the matter, despite the respondent's age and disturbed background and addiction. In these circumstances, since the only real mitigating factor was the respondent's age, he considered that, having regard to the guidance in Murray rather than O'Neill, it was appropriate to specify the whole of the period of twelve years in terms of Section 2(2).

[6] As the court pointed out in Murray 2000 J.C. at p. 109 H, the appropriate part in terms of Section 2(2) of the 1993 Act is the period to be served before the prisoner obtains the right to require his case to be referred to the Parole Board. This does not mean that after that time his release will be ordered forthwith, since the Board must then consider whether, and if so when, he should be released. In this case the question therefore comes to be whether it was excessive to specify that the respondent should spend twelve years in custody before being able to require that his case should be referred to the Parole Board.

[7] As Mr. McBride acknowledged when making his submissions as to the appropriate period to specify for the purposes of Section 2(2), the sentencing judge was fully entitled to treat this as an appalling murder of an entirely innocent lady, carried out for the purposes of effecting a robbery. Such a crime plainly requires to be met with a very substantial period in custody. None the less, Mr. McBride argued that a period of less than twelve years should have been specified. He pointed, first, to the fact that the respondent had been only fifteen years of age when he committed the murder. Secondly, as was apparent to the bystanders who witnessed the crime, at the time the respondent was under the influence of drugs. And indeed the robbery had been committed to try to obtain money to pay for drugs. Since being in custody, for the first time in his life, the respondent had been able to make some progress towards adopting a more stable way of living. And he had come to appreciate the appalling nature of what he had done. Finally, in fixing the appropriate period, account should have been taken of the fact that the appellant had tendered an early guilty plea. When all these factors were taken into account, the period of twelve years could properly be regarded as excessive.

[8] We have come to the conclusion that, as Mr. McBride submitted, the period of twelve years can properly be regarded as excessive. In so deciding, we again emphasise that the period which is to be fixed in terms of Section 2(2) is the period to be spent in custody before the respondent can require that his case be referred to the Parole Board. Even once it goes to the Parole Board, however, any release date is likely to occur some considerable time, and probably at least two years, after that. So, any period fixed under Section 2(2), is not a period after which the respondent will be immediately released but rather a period after which his release will have to be considered by the responsible authorities. Against that background, we also consider it right to take account of the fact that the respondent was only fifteen at the time of the crime and had had what can only be described as an appalling childhood. Last but by no means least, we take account of the fact that, young though he was, the respondent acknowledged his responsibility for his crime and tendered a plea of guilty. Taking all these factors into consideration, we are of the opinion that it would be appropriate to specify a period of ten years in terms of Section 2(2).

[9] We shall, accordingly, allow the appeal by the Lord Advocate and quash the period of six years specified by the sentencing judge in terms of Section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 and substitute a period of ten years.