Keirin McMillan or Elliott, Aron McMillan and Levi Hunter or Brown v. Her Majesty’s Advocate [2020] HCJAC 41

Note of appeal against sentence:- On 29 November 2019, at Edinburgh High Court, the appellants were all convicted after trial of a charge of murder. In addition, the second appellant was also found guilty of a number of assaults to injury in Edinburgh. The appellants were sentenced to be detained for life with punishment parts of: (1) 18 years for the first appellant; (2) 17 years and 3 months for the second appellant; and (3) 17 years for the third appellant. The appellants all appealed against the punishment parts selected it being contended that in respect of each the sentencing judge had given insufficient weight to their age. On behalf of the first appellant (aged 19) it was submitted that the punishment part selected was excessive and insufficient weight had been attached to his youth and troubled background. The first appellant had received the longest punishment part of the three appellants, however, it was submitted that there was no evidence that he had been the principal actor. On behalf of the second appellant it was submitted that the punishment part was excessive having regard to:- (1) he was aged 16 at the time of the offence and the courts should take a different approach when sentencing young persons because of their lack of maturity and their greater capacity to change; (2) the Criminal Justice Social Work Report prepared in advance of sentencing disclosed that he had accepted responsibility and expressed remorse; and (3) he had a troubled background as a consequence of which he lacked intellectual and emotional maturity and had been abusing valium at the time of the commission of the offence. In relation to the third appellant it was submitted that the punishment part was excessive having regard to his age at the time. It was further submitted that his best interests ought to be the primary consideration together with the need to reintegrate him into society. In addition, he too had experienced a troubled childhood with both his parents being drug abusers and he suffered from ADHD and exhibited signs of Post-Traumatic Stress Disorder, he suffered from depression and had previously attempted suicide. The sentencing judge had described the first appellant as the “leader of this gang of thugs” and the court here considered that, having listened to the evidence at trial, the trial judge was entitled to take into account his interpretation of the evidence given in the context of the jury’s verdict. The court noted that in fixing a punishment part, in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, the court’s focus is on determining a period which satisfies “the requirements for retribution and deterrence” and the issue of rehabilitation does not impact upon that. The court went on to state that in fixing a punishment part the court has regard to the issue of culpability and the courts recognise that the extent to which blame is attached to a younger person is affected by their lack of maturity and the degree of blame may be less than that of adults who commit similar crimes. As was expressed in McCormick v HMA 2016 SCCR 308 where the offender is a child, his or her best interests must be regarded as a primary consideration. Here the court noted that the case involved the brutal murder of a vulnerable person in his own home by the infliction of extreme premeditated violence. The court noted that there were a number of aggravating features in respect of all three appellants in that the first appellant had previous convictions, the second appellant was convicted of the further charges and the third appellant had previous appearances at the Children’s Hearing. The court also noted, however, that each of the appellants had experienced troubled backgrounds. Here the court considered that the trial judge had placed insufficient weight on the youth of the appellants and their backgrounds and that the punishment parts selected were excessive and the punishment parts selected were quashed and substituted with:- (1) 16 years; (2) 13 years; and (3) 13 years in relation to the first, second and third appellants respectively. The court reiterated that the punishment part selected does not equate to the period the offender will be released from custody but, rather, is the minimum period during when the offender will not be entitled to apply for parole and the question of whether an offender will be released from custody after the expiry of the punishment part will be a matter for the Parole Board for Scotland.