Punishment parts imposed on teenage murderers were ‘excessive’, appeal court rules

Daniel Kinlan and Darren Boland, who were sentenced to detention for life with punishment parts of 10 years and nine months and nine years and 11 months respectively for the murder of Adekunle Tella in 2015, claimed that the punishment parts imposed were “excessive” having regard to their age.

The High Court of Justiciary Appeal Court agreed that the starting points for the assessment of the punishment parts were excessive, given that the appellants were 15 at the material time and 18 and 19 at the time of sentencing, and therefore reduced their punishment parts by two years.

Frosty Jack Cider

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Brodie, heard that in November 2015 the appellants both pled guilty to the attempted murder of Adekunle Tella on 1 August 2015 by repeatedly punching him on the head and body, knocking him to the ground rendering him unconscious and thereafter repeatedly kicking, stamping and jumping on his head to his severe injury, permanent disfigurement, permanent impairment and the danger of his life. 

The pair had been out with friends when they came across Mr Tella, who had been making his way home to his flat in Springburn, Glasgow after a nigh-time vigil at the Redeem Christian Church.

Mr Kinlan had been drinking Frosty Jack Cider and may have taken drugs, while Mr Boland had also been drinking alcohol and had taken ecstasy, when they set upon their victim.

In January 2016 Mr Kinlan was made the subject of an extended sentence of 11 years and nine months, with six years and nine months as the custodial element, while Mr Boland was given an equivalent sentence of 10 years with six years’ custodial, and three-month concurrent terms for bail aggravations consecutive to the principal term.

Both sentences had been subject to a 25 per cent discount for pleading guilty at a preliminary hearing. 

But Mr Tella died in December 2016, having never fully regained consciousness following the unprovoked attack, ultimately succumbing to pneumonia.

After a trial in September 2018 both appellants were convicted of murder and the following month they were sentenced to detention for life.

Mr Kinlan’s punishment part was set at 10 years nine months, which took, as a starting point, a punishment part of 14 years, reduced by three years and three months to take into account the period spent in custody. 

Mr Boland’s punishment part was nine years and 11 months, which was calculated on the basis of a 13-year punishment part, reduced by three years and one month. 

There was no discount in either case, given that there was no plea of guilty to the murder charge and hence, “no utilitarian benefit” to the court.

‘Excessive sentence’

However, both appealed against sentence, arguing that the punishments parts imposed were “excessive”.

It was submitted that “inadequate weight” had been placed on the age of the appellants and the “desirability of re-integrating them into society”.

The court was told that in determining the punishment parts, the trial judge took into account the “best interests” of the appellants, having noted that neither appellant’s personality would have been fully formed at the time of the attack. 

The judge also took into account the “need for rehabilitation and re-integration” of the appellants into society, but considered that lengthy periods should be imposed as “punishment and deterrence”. 

In Mr Kinlan’s case, he had kicked and stamped on Mr Tella’s head more than 20 times, persisting after Mr Boland had stopped and tried to stop him.

On behalf of Mr Kinlan, although he had said that he could not recall the circumstances of the offence because of his ingestion of alcohol and drugs, it was said that he had “accepted responsibility” upon viewing CCTV images of the assault.

It was also submitted that Mr Kinlan’s ADHD may have had some impact, and that he had expressed remorse.

For Mr Boland, it was accepted that he had acted in concert and he had accepted responsibility for the attack.

It was pointed out that there was no pre-planning or use of weapons, he had not been the “major attacker” and had tried to drag Mr Kinlan away.

Mr Boland, it was said, would be going into a penal institution as an adolescent and would emerge as a man, but there was a “basis for hope” upon maturity.

‘Best interests of the child’

Allowing the appeal, the judges referred to the case of HM Advocate v Boyle 2010 JC 66, in which the court disapproved the idea, derived from the case Walker v HM Advocate 2002 SCCR 1036, that a punishment part of 12 years should be “the norm for most cases of murder”.

Boyle set the norm at 16 years for offences involving the carrying of knives in public, but contemplated a period of less than 12 years even in those cases where the offender was a child.

Delivering the opinion of the court, the Lord Justice General said: “It is striking that, after Boyle, the level of punishment parts has increased substantially. For murders involving repeated stamping, periods in excess of 16 years have been deemed appropriate. 

“No doubt each case will turn on its own facts and circumstances, but it is nevertheless instructive to revisit Boyle in order to understand the reasoning of the Full Bench.

“As the trial judge duly recognised and took into account, the sentencing of young offenders involves additional considerations from those applied when dealing with adults. The first is that the court must have regard to the best interests of the child as a primary consideration.

“The sentence must be fair and proportionate, in line with the guideline, which has been approved by the court, on the ‘Principles and purposes of sentencing’. 

“It must in addition take account of the young offender’s lack of maturity, capacity for change and the offender’s best interests. Rehabilitation is an important consideration.”

Lord Carloway added: “There are no mitigating circumstances relative to the offence itself. The attack on Mr Tella was entirely unprovoked. It was brutal and, especially given his early incapacitation, cowardly. 

“The only mitigation is derived from the appellants’ youth and their acceptance of responsibility for the attack. These matters were all taken into account by the trial judge.”

However, the court concluded: “In all the circumstances, and having regard to the dicta in Boyle (supra), the starting points for the assessment of the punishment parts at 14 and 13 years can be seen as excessive. 

“The court will take as its starting points 12 and 11 years. This will result in punishment parts, which will run from the date of the trial judge’s sentences, of eight years and nine months for Mr Kinlan and seven years and 11 months for Mr Boland.”