MCKENNA MURDER: Full transcript of His Hon Justice Globe's sentencing of killer Gary Finlay

You are to be sentenced upon pleading guilty today to two offences committed on Saturday 10th January 2009, namely

-the murder of your 45 year old brother-in-law, Graham McKenna, and

-the attempted murder of your 14 year old nephew, Michael McKenna.

The statements in the case and the victim personal statements from the family reveal the full effect of your wrongdoing. Graham McKenna was a serving soldier for over 20 years. He retired from the army in 2005, at which time he moved with his family to the Claughton area of the Wirral, where he quickly integrated into the community, joining the Territorial Army and spending much time helping others. He was a hard working and devoted family man. His death has caused shock and devastation amongst his family and many friends. An indication of the regard in which he was held comes from the fact that his funeral was attended by over a thousand people. Immediate family members are lost without him. Their lives have been irreparably damaged. They may never come to terms with his death.

His son, and your nephew Michael, will bear both the physical and mental scars of your attack for the rest of his life. You entered the McKenna family by marrying Gillian McKenna’s sister. Your wife left you in 2004 amidst allegations of your excessive drinking, abuse of drugs, jealousy and violence. There were acrimonious and drawn out divorce proceedings which were not concluded until 2007. In the course of those proceedings, Graham and Gillian McKenna were due to, but didn’t actually, give evidence in the proceedings against you on behalf of your ex-wife. Their willingness to intervene was a matter with which you became obsessed. There is evidence from various witnesses in the case, and in part it is substantiated in the psychiatric report that has been prepared and supplied to the court on your behalf, that you became very bitter, hated the McKenna family and sought revenge for what you perceived was the injustice of losing your divorce case. Various intimidating acts are referred to in the statements of Gillian McKenna and your niece, Amy, including driving past them and staring whenever you saw them unexpectedly. Ominously, one of your friends, Mr McKenzie, has spoken of your hatred of the McKenna family and of your knowledge of where Graham McKenna got the soccer bus with his lad, which is where you stated “that’s where I’ll get him”.

At about 12.45 on Saturday 10th January, Graham and Michael McKenna were walking along Upton Road on their way to Claughton Village to catch the football bus to take them to an Everton football match. They saw you in your car parked across the road. You got out of the car armed with a long-bladed kitchen knife and attacked Graham McKenna. Witnesses describe you running at Graham McKenna, pulling him to floor and attacking him with the knife. You were straddling him and stabbing him repeatedly. Graham McKenna managed to struggle away from you and go up the path of someone’s house, where you attacked him again with the knife until he slumped to the floor fatally wounded. You stabbed him 18 times. Some of them were deep wounds piercing bone and required the application of considerable force. That is consistent with the account of the witnesses who saw the ferocity of your attack.

Having finished your attack on Graham McKenna, you walked away and turned your attention to his young son Michael, who you then attacked with force that was described by one witness as unbelievable. You pushed him to the ground and stabbed him repeatedly until members of the public intervened and caused you to stop. Michael McKenna suffered numerous stab wounds to his stomach, chest, arm and back and a fractured rib. He was in intensive care for a time and required in-patient treatment for over ten days. He was extremely fortunate to survive your attack upon him. The physical and mental scars remain.

Having ceased your attack upon Michael, you were observed walking away to your car, wiping the blood from the knife on your trousers as you did so. You then drove away from the scene. You knew what you had done because minutes later you rang your sister telling her that you had killed Graham McKenna. However, you then went missing for a period of just over six weeks. Gillian McKenna describes the terror of living in fear of your return to cause more pain and suffering during that six week period. The family were afraid to go out of the house. Michael was incapable of sleeping alone. A press conference had to be organised to obtain public information about your whereabouts. Police protection had to be provided, which in itself wasted valuable police resources. Your failure to surrender yourself to the police during that six week period is an aggravating factor that I need to take into account in passing sentence upon you. Having eventually surrendered yourself to the police, you told them that since the incident you had been sleeping rough. You were unable to describe the attack, but claimed it had not been planned. It is your case that the knife had been left in the glove box of your car after a fishing trip. Even if that be the case, there is no excuse for removing it from the glove box and taking it with you when you left the car that afternoon. To that extent at least, if no other, I am satisfied that you intended then to use it and did use it with extreme violence against an unarmed man and an unarmed young boy.

And so, it is against that factual background that I now have to pass sentence.

In relation to the offence of murder, there is only one sentence that can be passed and that is a sentence of life imprisonment.

In relation to the offence of attempted murder, it is categorised as a serious violent offence as specified within Schedules 15 of the CJA 2003 as amended. The offence is punishable with a maximum sentence of life imprisonment. I am satisfied from the particular circumstances of the case, and from all the information I know about you, that there is a significant risk to members of the public of serious harm being occasioned by the commission by you of further specified violent offences. As such, I consider the seriousness of the case is such as to justify the imposition of a sentence of life imprisonment for the attempted murder as well as the mandatory sentence of life imprisonment which must be imposed for the murder. In relation to both life sentences, I am required to set out in court the minimum term of those life sentences that you must serve as the punitive and deterrent term of your sentence before consideration – and I stress that word CONSIDERATION – can be given to your release within the ambit of the statutory early release provisions.

By minimum term, I mean the term that must be served before your cases may be referred to the Parole Board for a consideration of your release upon licence. Whether or not you will be so released after such a term will be a matter entirely for the Parole Board to consider at that time and they will not do so unless satisfied that you are no longer a risk to the public and are ready for release into society. If you are so released, you may be recalled to continue serving your life sentence if you breach any licence conditions that are set for you.

In relation to the murder, I first of all have to consider what is the appropriate starting point for the minimum term of that life sentence pursuant to the provisions of paragraphs 4-7 of schedule 21 of the CJA. If the weapon that you had used had been a firearm or an explosive, the starting point for my consideration would have been a minimum term of 30 years. There is no starting point specified for murder with a knife. In the absence of any other specific factor that brings your case within a 30 year starting point, the starting point is therefore one of 15 years. Within the course of the last few weeks, the Government has indicated that this is a matter which is to be reviewed. The Justice Secretary, Jack Straw, has acknowledged that there are considerable concerns about the issue and he has stated that he will be conducting a full review to see if the Criminal Justice Act provisions which I have just mentioned require amendment. This is neither the time nor the place for me to express any views about whether or not the provisions should be amended. I have an obligation to sentence you in accordance with the provisions as currently laid down by Parliament. As such, the starting point is one of 15 years, although that is prior to the consideration of any aggravating and mitigating circumstances.

In relation to aggravating circumstances, paragraph 10 of the Schedule lists a number of specific aggravating factors. It is important to understand, though, as restated by the Lord Chief Justice as recently as 10th June in the case of Morley [2009] EWCA Crim 1302 that these factors are neither conclusive nor exclusive.

There are three factors specified in paragraph 10 which need consideration.

Pursuant to paragraph 10(a) it is an aggravating factor if there has been “a significant degree of planning or preparation”.

For the reasons I have already identified, there is evidence that you did plan and prepare for these attacks. I note in mitigation, that although reference has been made to what Mr McKenzie has said you threatened to do, in that I am asked to bear in mind that it was allegedly said months before your offences, it has not been suggested to me that you that you say Mr McKenzie’s account is wrong.

The case set out in your basis of plea is that you were driving in the area in order to visit your mother. You saw what you believed was an offensive gesture being made towards you by Graham McKenna, which caused you to lose your temper. You stopped your car, armed yourself with your fishing knife, got out and attacked in an explosion of anger rather than in a premeditated attack.

There isn’t any evidence of your route or your arrival and act of stopping the car. I have a strong suspicion that your presence in the road at the relevant time wasn’t a coincidence. I also strongly suspect that you deliberately chose that time of day knowing and/or hoping that Graham McKenna and Michael McKenna would be walking along the pavement towards the soccer bus. However, suspicion is not the standard by which criminal cases are decided. As such, I give you the benefit of the doubt about your presence being a coincidence and not a planned event.

There is only your word that there was some offensive gesture made towards you, and I note the phraseology in your written basis of plea, namely, that you believe you saw such a gesture. Even if such a gesture was made, and I am not convinced one was made, your actions were thereafter grossly disproportionate and are indicative of you being ready to display violence in response to the least possible act of disapproval towards you. There was no need to stop the car. There was no need to get out of the car. There was no need to take a large knife with you. Even if you had left it in the glove box and forgotten to take it out of the car at some earlier time, you immediately appreciated it was there in what you seek to say was the spur of the moment. And, there was certainly no need to use the knife in such a dangerous manner. All of this suggests to me prior mental processes of considering the use of violence against Graham McKenna at some time. In my view, that finding conflicts with your suggestion of a spontaneous explosion of anger.

To this extent, therefore, I am not prepared to accept that there was no premeditation in your mind sufficient to provide you with a mitigating circumstance, but I am prepared to accept that it doesn’t come within the aggravating factor “significant planning and preparation”.

In the course of submissions with counsel earlier, a measure of agreement was reached as to this being the appropriate approach to the issue of premeditation.

Pursuant to paragraph 10(b) it is an aggravating factor if “the victim was particularly vulnerable because of age or disability”. Graham McKenna wasn’t particularly vulnerable. However, in the context of the attempted murder, and the overall circumstances, Michael McKenna was particularly vulnerable. He was a young lad who, at the material time, was just standing in the street listening to music on his iPod when you walked up to him and launched an unprovoked attack upon him. Pursuant to paragraph 10(c) it is an aggravating factor if “there was mental or physical suffering inflicted on the victim before death”. This is not a case of one stab wound causing death. There were two prolonged attacks with a total of 18 different stab wounds inflicted upon the body of Graham McKenna. Witnesses were amazed that Graham McKenna was able to escape from your first attack and stagger away in the hope of safety. Having done so, you followed him and deliberately attacked him a second time, causing further pain and suffering upon him until he was mortally wounded. It is beyond doubt that your clear intent at that time was to kill him.

In my view, three other aggravating features are of relevance.

The first is the matter I have already mentioned, namely, your absence and the worry and fear that you thereby caused for a six week period prior to surrendering yourself to the police.

The second is that there were two attacks and not one. The severity of your attack and the wounds that you caused could easily have led to the death of Michael McKenna and to two murder cases rather than one. It is only through extreme good fortune and the intervention of the public that your case amounts to one murder and one attempted murder. If you had killed Michael McKenna, the fact that two people had died would have led to a starting point of 30 years by way of minimum term. In my view, your case is as close as it possibly can be to two murders rather than one murder and one attempted murder.

The third is that you carried out the attack in a public place, in broad daylight, with the dangerous weapon of a large knife. Notwithstanding its absence in the schedule as a factor justifying a starting point of 30 years, the use of a knife in these circumstances is nonetheless an aggravating factor justifying a significant increase from the starting point of 15 years.

In relation to this issue, I am in possession of a Community Impact Statement dated 30.06.09 prepared by Superintendent Michael Cloherty of the Merseyside Police. It provides an overview of the impact of knife crime within communities across Merseyside. It draws upon statistics collected during the past two years and concentrates on the twelve month period leading up to the preparation of the statement.

During that twelve month period, Merseyside Police received almost 900 knife crime reports, of which 100 were Wirral based incidents and just over 100 related to domestic incidents.

·There have been ten homicide cases; and a further 300 cases involving serious harm.

·There have been almost 500 knife-crime arrests.

One consequence of these figures is that it has had a significant impact on police resources by reason of having to investigate the complaints, as well as having to provide a level of reassurance in terms of high visibility police presence, all of which has diverted police resources from other community priorities.

Most significantly, it has damaged the lives of victims and their families and adversely affected the lives of whole communities. Neighbourhood police teams have reported rumour and uncertainty among the public. Regular reports have been received of rising fears leading to changes in behaviour of vulnerable groups. For example, elderly residents are known to fear going out after dark following a knife enabled incident and parents are known to keep young people at home for fear of an attack on the street. Local public perception surveys indicate that that the public are most worried about knife crime in there area even above gun crime and personal robbery.

Your attack in broad daylight on the street and in full view of witnesses is a demonstration of the very violence about which the public are rightly concerned.

All of what I have been saying relates to the offence of murder. A separate consideration needs to be given to the minimum term to be served in relation to the attempted murder. For obvious reasons, the same principles apply, save that I need to recognise that death did not occur. I must take account of the totality of sentencing when arriving at a total minimum term.

In terms of mitigation, I take note of the issues contained in the lengthy and helpful psychiatric report from Dr Nathan, particularly the depressed state that you have been in since the breakdown of your marriage. That said, Dr Nathan is entirely satisfied that your mental state was not sufficient to enable there to be any suggestion of any defence to murder. He is satisfied, and you have pleaded guilty, on the basis that you knew what you were doing, were intending to kill and the responsibility for your actions is not diminished. I do not regard anything in the report as sufficient to lower your degree of culpability.

Mr Menary has raised four specific issues of mitigation.

First, he submits that there was a lack of premeditation. I have already commented upon that matter and for the reasons stated reject it.

Secondly, he submits that you acted to some extent as a result of a perception that you had been provoked and had been subject to similar conduct over a number of years. I do not accept that a perception of being provoked is sufficient to mitigate your actions. Neither do I accept that your bitterness over the divorce provides you with any relevant mitigation for your extreme actions.

Thirdly, it is submitted that you have no previous convictions for offences of violence. You are 46 years of age and have only two minor convictions back in the 1980s. I accept that you have no convictions for violence and have never received any custodial sentence.

Fourthly, he submits that you should be given credit for your guilty plea. I accept that it was indicated to the court as soon as Dr Nathan’s psychiatric report was received and considered. I therefore give you a full one-sixth discount which is fully reflected in each of the two minimum terms I am about to impose.

I need to take into account what credit you should receive for having been remanded in custody since your arrest. If I don’t give you credit now, the time you have already spent in custody cannot be taken into account. The minimum terms will be reduced to take the time you have so far spent in custody into account, which I am informed is 133 days.

The sentences I pass on you must reflect a total minimum term which reflects all of your offending. The minimum term I impose in relation to the murder reflects the totality of your offending, and the minimum term I impose in relation to the attempted murder will be served concurrently with it.

Attempted murder of Michael McKenna life imprisonment minimum term 10 years; murder of Graham McKenna life imprisonment minimum term 25 years concurrently. In total, therefore, the sentence is life imprisonment with a minimum term of 25 years.