Daniel Kinlan and Darren Boland v. Her Majesty’s Advocate [2019] HCJAC 47

Note of appeal against sentence:- On 23 November 2015, both appellants pled guilty to the attempted murder of Adekunle Tella on 1 August 2015. On 7 January 2016, Kinlan was made the subject of an extended sentence of 11 years 9 months, comprising of a custodial element of 6 years and 9 months and an extension period of 5 years. Boland was given an extended sentence of 10 years comprising of a custodial element of 6 years and an extension period of 4 years. Both appellants’ sentence were discounted by 25% to reflect their pleas of guilty. On 7 December 2016, Mr Tella died. On 19 September 2018, both appellants were convicted of his murder. The issue at trial had been the cause of death and a joint minute had agreed that the appellants had behaved in the manner libelled and had previously pled guilty to attempted murder. The position was that the deceased had died of pneumonia, as he was vulnerable to infection due to his lowered state of consciousness, immobility and tube feeding. Both appellants were subsequently convicted of murder. On 26 October 2018, both appellants were sentenced to detention for life. Kinlan’s punishment part was set at 10 years 9 months reduced from a punishment part of 14 years by 3 years and 3 months to reflect the time spent in custody. Boland’s punishment part was 9 years and 11 months reduced from a 13 year punishment part by 3 years and 1 month to reflect the period he had spent in custody. No discount was allowed in light of their respective pleas of ‘not guilty’ to the murder charge as the sentencing judge was of the view there was no utilitarian benefit. Both appellants appealed against the respective punishment parts imposed on the grounds they were excessive. The sentences were not backdated and were the equivalent of 14 and 13 years. It was further contended that inadequate weight had been placed on the age of the appellants and the desirability of re-integrating them into society. Here the court, having regard to what was said in HMA v Boyle 2010 JC 66, considered that the starting points for the assessment of the punishment parts at 14 and 13 years were excessive. The court noted that since the full bench decision in Boyle the ‘norm’ of punishment parts has increased substantially. The court reiterated here that the best interests of the child is the primary consideration and to the desirability of the child’s reintegration into society. The sentence must be fair and proportionate and take into account the child’s lack of maturity, capacity for change and the offender’s best interests. In relation to the present case the court noted that there were no mitigating factors attaching to the offence itself, the attack on the deceased being unprovoked and cowardly. The court considered that the sentencing judge was entitled to distinguish between both appellants and Kinlan’s repeated stamping on the deceased’s head justified that distinction. The court quashed the sentences previously imposed and substituted punishment parts of 8 years and 9 months for Kinlan and 7 years and 11 months for Boland to run from the date of the imposition of the sentences reduced from starting points of 12 and 11 years respectively to reflect the periods both appellants had spent in custody.