Christopher McGowan v. His Majesty’s Advocate [2024] HCJAC 20

Note of appeal against sentence:- On 28 September 2023, following a trial at Stirling High Court, the appellant was convicted of a charge of murder whilst on bail which offence was aggravated in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 in that the offence involved the abuse of his partner.On 25 October 2023 the appellant was sentenced to life imprisonment with a punishment part of 23 years selected. The sentencing judge reported to the court that one year concurrent sentences were imposed for the bail and abuse of partner aggravations, however, the court minutes recorded that, of the 23 years punishment part imposed, one year was imposed in respect of the bail aggravations and one year for the abuse of partner aggravation. The appellant appealed against the punishment part selected it being contended it was excessive. It was submitted on behalf of the appellant that whilst a significant punishment part was merited there had not been the use of a weapon and reliance was placed on what was said by the court in Boyle v H.M.A. 2010 J.C. 66 where a 16 year punishment part was envisaged as a starting point for murders committed with a knife. Here the court refused the appeal. The court pointed to the “the brutality of the attack, the appellant’s extensive criminal record and the domestic context in which the murder took place.” The court considered a number of authorities where punishment parts had been imposed. The court observed that the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 makes it clear that, rather than a domestic setting for a murder being seen as a mitigating factor, the Act makes it clear that a domestic context is an aggravating factor that requires to be reflected in selecting the appropriate punishment part. The court noted that whilst there is no fixed percentage or particular level of additional penalty stipulated in respect of an abuse of partner aggravation Parliament must be assumed to have intended that the courts should normally add a significant penalty to a similar non partner abuse aggravated crime. Here the court noted that in adding one year to a 22 year punishment part it was clear that the sentencing judge had already taken the domestic context into account in selecting the headline sentence, albeit in light of the 2016 Act such an approach may have been incorrect given the penalty attributable to the section 1 aggravation being very small. The court considered, however, that the punishment part of 23 years was not excessive.