Kinland and Boland v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Menzies,Lord Brodie |
| Judgment Date | 11 July 2019 |
| Neutral Citation | [2019] HCJAC 47 |
| Docket Number | No 22 |
| Court | High Court of Justiciary |
| Date | 11 July 2019 |
[2019] HCJAC 47
Lord Justice-General (Carloway), Lord Menzies and Lord Brodie
Advocate (HM) v Boyle [2009] HCJAC 89; 2010 JC 66; 2010 SLT 29; 2010 SCCR 103; 2010 SCL 198
Bruce v HM Advocate [2016] HCJAC 25; 2016 SCL 492; 2016 GWD 11-228
Greig v HM Advocate [2012] HCJAC 127; 2013 JC 115; 2012 SCCR 757; 2012 SCL 1095
Hibbard v HM Advocate [2010] HCJAC 111; 2011 JC 149; 2011 SLT 247; 2011 SCCR 25; 2011 SCL 246
Laurie v HM Advocate [2019] HCJAC 3; 2019 GWD 5-70
McCormick v HM Advocate [2016] HCJAC 50; 2016 SLT 793; 2016 SCCR 308; 2016 SCL 651
R (on the application of Smith) v Secretary of State for the Home Department [2005] UKHL 51; [2006] 1 AC 159; [2005] 3 WLR 410; [2006] 1 All ER 407; [2005] HRLR 33; [2006] 1 Prison LR 12
Roper v Simmons 543 US 551 (2005)
Walker v HM Advocate 2003 SLT 130; 2002 SCCR 1036; 2002 GWD 35-1170
Scottish Sentencing Council, Principles and Purposes of Sentencing: Sentencing guideline (Scottish Sentencing Council, Edinburgh, November 2018) (Online: https://www.scottishsentencingcouncil.org.uk/media/1964/guideline-principles-and-purposes-of-sentencing.pdf (8 August 2019))
United Nations, Convention on the Rights of the Child (United Nations,, New York, November 1989), Arts 3(1), 40 (Online: https://www.unicef.org.uk/what-we-do/un-convention-child-rights/ (8 August 2019))
Justiciary — Sentence — Life sentence — Punishment part — Approach to be taken to sentencing of young offenders for murder
Daniel Kinlan and Darren Boland were charged on indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, with murder. They were convicted after trial, on 19 September 2018. On 26 October 2018, they were sentenced to life imprisonment, the relevant part of their sentences for the purposes of sec 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (cap 9) being ten years and nine months and nine years and eleven months respectively. The appellants appealed, on the grounds that those periods were excessive.
On 23 November 2015, the appellants pled guilty to the attempted murder of Adekunle Tella on 1 August 2015. At the time of the attack, the appellants were both 15 years old. On 7 January 2016, the first appellant was made the subject of an extended sentence of eleven years and nine months with six years and nine months as the custodial element. The second appellant was given an extended sentence of ten years with six years as the custodial element. Both sentences were subject to a 25 per cent discount for a guilty plea at a preliminary hearing.
Mr Tella had been assaulted by the appellants at night outside the block of flats in which he lived. Both appellants repeatedly punched him on the head and body. The first appellant kicked and stamped on Mr Tella's head more than 20 times, persisting after the second appellant stopped. The second appellant pulled the first appellant away. The appellants then ran away. Mr Tella was taken to hospital and subsequently transferred to a care home. On 7 December 2016, Mr Tella died.
On 19 September 2018, both appellants were convicted of his murder following a trial at which the issue was the cause of death. On 26 October 2018, both appellants were sentenced to life. The first appellant's punishment part was set using a starting point of 14 years, and the second appellant's punishment part set using a starting point of a 13 years (with deductions then made to reflect time already spent in custody). In determining the sentences, the trial judge took into account the appellants' best interests, noting that neither appellant's personality would have been fully formed at the time of the attack. She considered that lengthy periods should be imposed for punishment and deterrence. The appellants appealed against sentence.
For the appellants, it was contented that the punishment parts were excessive and that inadequate weight had been placed on their age and the desirability of reintegrating them into society.
Held that: (1) the sentencing of young offenders involved additional considerations from those applied when dealing with adults, including having regard to the best interests of the child as a primary consideration and to the desirability of the child's reintegration into society, with sentences requiring to be fair and proportionate in addition to taking account of the young offender's lack of maturity, capacity for change, the offender's best interests and rehabilitation (paras 18, 19); (2) the only mitigating circumstances derived from the appellants' youth and their acceptance of responsibility for the attack, and in all of the circumstances the starting point for the assessment of the punishment parts at 14 and 13 years was excessive and that periods based on starting points of 12 and 11 years should be substituted (paras 20, 21); and appeals allowed.
HM Advocate v Boyle 2010 JC 66 considered and McCormick v HM Advocate2016 SLT 793followed.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Carloway), Lord Menzies and Lord Brodie, for a hearing, on 27 June 2019.
At advising, on 11 July 2019, the opinion of the Court was delivered by the Lord Justice-General (Carloway)—
Opinion of the Court—
[1] This appeal concerns the appropriate level of punishment part when sentencing young persons who have been convicted of murder. It is worth emphasising at the outset that, as with all decisions which fix punishment parts in murder cases, the sentence of the court is detention or imprisonment for life. The punishment part sets a period which the court considers will satisfy the requirement, in the sentencing equation, for retribution and deterrence. The court is directed by Parliament ‘to ignore any period of confinement which may be necessary for the protection of the public.’ (Prisoners and Criminal Proceedings (Scotland) Act 1993 (cap 9) (‘the 1993 Act’), sec 2(2) and (2A).) The...
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