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When deciding a sentence, a judge must deal with the offence that the offender has been convicted of, taking into account the unique circumstances of each particular case. The judge will carefully consider the facts that are presented to the Court by both the prosecution and by the defence.
Read more about victims of crime and sentencing.
HMA v Gavin McKay
Sep 12, 2023
“You have been found guilty of 20 charges. Taken together, they reflect a serious, violent and abusive course of conduct towards three people over a period in excess of 24 years. Another person featured as a complainer in the case on a charge of stalking, albeit over a 4 year period.
The charges involved the rape as well as the serious physical, emotional and psychological abuse from 1995 to 2020. You also behaved in a controlling and coercive manner towards them with, for example, threats of suicide and cutting your wrists used to try to get your own way.
I have seen Victim Impact Statements prepared on behalf of your victims. These also give details of the impact on others, for example your victims’ children. One complainer explains the removal of her self-confidence because of you. Another describes existing in a life that is not hers any more. A third complainer describes constantly looking over her shoulder. These statements confirm the serious, continuing and likely lasting consequences of your conduct. It is well known that the consequences of rape and serious domestic abuse for victims or survivors can be significant and lifelong.
When you were convicted, the Crown made a motion for a risk assessment order to have you assessed for an order for lifelong restriction. Before making such an order, I asked for a Criminal Justice Social Work Report with a risk assessment. The risk assessment in that report was such that I considered that it was indeed appropriate to obtain a risk assessment report.
I now have the detailed Risk Assessment Report. I note that you maintained the same position in interview with the author of the report as you did in your evidence, namely that you are innocent and did nothing wrong. Despite overwhelming evidence, you maintain that you have been set up by people who have all told lies about you. That account was of course rejected by the jury and I proceed to sentence on the basis that you are unrepentant and lacking in any insight into the considerable damage that you have caused over many years. The question of serious risk of harm to the public is clear from the risk assessment report.
In the Summary of the Risk assessment Report, it says:
‘…Mr McKay presents as a high risk towards the public. Mr McKay’s behaviour indicates an enduring propensity to seriously endanger the lives, physical or psychological well-being of the public at large. Mr McKay’s offending against multiple victims has been committed over a number of years including whilst he was under supervision. He has few protective factors and despite receiving support and supervision continued to offend. He has experienced trauma which has resulted in problematic and pervasive traits, which will take concerted efforts and time to change/manage. Mr McKay is motivated to undertake treatment but does not view himself to be a risk of serious offending. He is amenable to treatment, but his difficulties are entrenched, and it will take a long period of time and a great deal of support to stabilise him. It is difficult to foresee why standard measures would be successful in the future as regardless of any positive treatment effects, he will also require strict monitoring and risk management. It is my opinion that concerted long-term measures are more appropriate to manage the risk that Mr McKay presents.’ I agree with this assessment.
You are 44 years old and have a number previous convictions, including analogous offences. You have an indictment conviction relating to possession of a knife and a stun gun for which you were sentenced to 8 months imprisonment. You have 2 convictions in 2020 with domestic aggravations.
Today, Mr Martin addressed me in mitigation. I note that from what he said and the RAR that there may be some protective factors you can develop and that you are said to have good levels of motivation for treatment.
Mr Martin mentioned your troubled and traumatic early years which are detailed in the CJSWR and Risk Assessment Report. It appears that you have suffered from insecurity, anxiety and low self-esteem. Some of that background may help to explain but, as rightly acknowledged by Mr Martin does not excuse your attitudes and conduct which have involved taking over and ruining the lives of others, including removing their self-esteem and leaving them in continuing states of fear, anxiety and depression.
I have considered carefully all that is said in the 2 reports and victim impact statements and all that has been carefully said on your behalf by Mr Martin.
Having regard to the whole circumstances of the case, in particular the gravity and duration of your offending, only a custodial sentence is appropriate. This is necessary to punish you and to seek to deter you and others from behaving in this way and in particular to protect the public from you.
Each of the 13 charges of rape, indecent assault and violence on the indictment is extremely serious in itself, with the rapes and assaults carrying maximum sentences of life imprisonment. The other 7 charges are serious but not of the same order of gravity. Life sentences are possible for breach of the peace but each of the other charges carries only a maximum sentence of 5 years imprisonment. I will deal with these charges by imposing concurrent custodial sentences of lesser duration.
It is clear that the nature and circumstances of the offences on this indictment are such as to demonstrate that there is a likelihood if you were at liberty that you would seriously endanger the physical and psychological well-being of members of the public, in particular any partners. The risk criteria in section 210E are therefore met in I am satisfied that an Order for Lifelong Restriction is the only sentence which will provide protection from that risk.
Had I been sentencing you to a determinate sentence, I would have imposed a cumulo extended sentence, that is one covering all of the charges involving sexual and violent offences. That extended sentence would have been of 18 years duration on charges 3, 4, 5, 6, 8, 9, 10, 11, 12, 16, 23, 24 and 27, consisting of a custodial term of 12 years and an extension period of six.
The element of public protection would have been in the extension period.
In order to fix the punishment period of the life sentence I impose today, I halve the 12 years to 6 years to allow for the possibility of early release.
In short, I impose an Order for Lifelong Restriction in respect of charges 3, 4, 5, 6, 8, 9, 10, 11, 12, 16, 23, 24 and 27, with a punishment part of 6 years to run from 11 May 2023.
You should be aware that this does not mean that you will be released after that 6 year period. The sentence is an order for lifelong restriction which is a life sentence. Whether you are released after that 6 year period will depend on an assessment of your risk by the Parole Board for Scotland. Unless you work to address and reduce your risk, you may never be released.
On each of charges 1, 7, 17, 18, 19, I impose concurrent sentences of 4 years imprisonment, and on charges 20 and 28, I sentence you to imprisonment for 5 years with the sentences on charges 20 and 28 being greater by 1 year in respect of an aggravation.
As a consequence of this sentence for the rapes, you will be subject to notification requirements indefinitely.
In addition, I must consider whether to make a non‑harassment order in relation to the 4 complainers. I will make such an order. The order will be for an indeterminate period.”