Three young offenders have punishment parts of life sentences for murder reduced 

Keiran McMillan (or Elliott), Aron McMillan, and Levi Hunter (or Brown) were found guilty of murder in November 2019. They argued that the sentencing judge had attached insufficient weight to their youth in determining the punishment part of their sentences. 

The appeals were heard concurrently in the Appeal Court of the High Court of Justiciary by the Lord Justice General, Lord Carloway, sitting with Lord Malcolm and Lord Turnbull. 

80 injuries 

All three appellants were found guilty of the same charge, which libelled that they assaulted Alasdair Forsyth at his flat in Edinburgh, striking him with several implements, and stole a tablet and a mobile phone from him. Mr McMillan, who was the Mr Elliott’s younger brother, was also found guilty of a number of assaults to injury on other children, sometimes alongside the Mr Brown. 

The three had been at a relative of the first and second appellants’ flat for dinner. Afterwards, Mr Elliott said to the other two: “are we going to do that job”. They then entered the flat of Mr Forsyth and attacked him. The cause of death was reported as blunt force trauma to the chest, with a total of 80 injuries being noted. 

The police arrived and arrested them as they left Mr Forsyth’s flat. All of them had the deceased’s blood on them. During interviews and in subsequent phone calls from detention, they commented that they had attacked the deceased for money, and described themselves as being “oot our nut” at the time of the offence. 

The original punishment parts were set at 18 years for the first appellant, 17 years and 3 months for the second, and 17 years for the third. In selecting the punishment parts, the trial judge noted that Mr Elliott was the leader of the gang, had a troubled childhood, and had previous convictions, including one for the offence of hamesucken, also at the home of a pensioner, from when he was 15. 

At the time of the murder, Mr Elliott was 19 years old. Mr McMillan was 17, and Mr Brown was 15. The latter two also had troubled childhoods, with violence being a feature of Mr McMillan’s life while Mr Brown’s parents were chronic substance abusers. In sentencing them, the trial judge took account of their age and circumstances as well as the planned robbery aspect of the murder, the use of weapons, and the fact that Mr McMillan and Mr Brown were subject to bail and supervision orders respectively. 

On appeal, it was submitted for Mr Elliott that the trial judge had afforded insufficient weight to his youth and background, with his family being known to the local social work department. Further, there was no evidence he had been the principal actor in the offence.  

Submissions based on the age of the other two were also made. While Mr Elliott could be classed as a young adult, Mr McMillan and Mr Brown were young persons, and had a greater capacity for change. Mr Brown had thus far had no normal life at all, while Mr McMillan significantly lacked intellectual and emotional maturity. 

Brutal nature 

The opinion of the court was delivered by Lord Carloway. On the nature of any sentence generally, he said: “Given the brutal nature of this murder of a vulnerable person in his own home using extreme violence in pursuit of a pre-planned criminal objective, the punishment parts would, irrespective of the ages of the perpetrators, require to be substantial in the case of all three appellants.” 

He continued: “The previous convictions of Mr Elliott and the findings of guilt on the other charges, and their own Children’s Hearing appearances, in respect of Mr McMillan and Mr Brown were correctly identified by the trial judge as aggravating factors. On the other hand it must be recognised that the degree of blame should be tempered by the troubled backgrounds to which all three appellants were subjected.” 

On whether Mr Elliott could be identified as the ringleader, he said: “In selecting comparative sentences for the appellants, the trial judge was entitled to take into account his own interpretation of the evidence given, in so far as consistent with the jury’s verdict. He was thus able to find that the leader of the group was Mr Elliott, based partly upon his age relative to the others and to [witness] evidence, which he was entitled to accept despite the criticisms made of it.” 

Lord Carloway concluded: “Balancing all of these factors, the court is persuaded that the trial judge has placed insufficient weight on the youth of the appellants and their backgrounds and that the punishment parts selected were accordingly excessive. This is especially so in the case of the child offenders.” 

For these reasons, the punishment parts of all three sentences were quashed. In their place, new punishment parts were imposed of 16 years for Mr Elliott and 13 years each for Mr McMillan and Mr Brown.