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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> NOTE OF APPEAL AGAINST SENTENCE BY (FIRST) KEIRIN MCMILLAN OR ELLIOTT; (SECOND) ARON MCMILLAN; AND (THIRD) LEVI HUNTER OR BROWN AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_41 (04 September 2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_41.html
Cite as: [2020] HCJAC 41, 2020 GWD 34-453, [2020] ScotHC HCJAC_41
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2020] HCJAC 41
HCA/2020/000054/XC
HCA/2020/000071/XC
HCA/2020/000063/XC
Lord Justice General
Lord Malcolm
Lord Turnbull
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST SENTENCE
by
(First) KEIRIN McMILLAN or ELLIOTT; (Second) ARON McMILLAN; and (Third) LEVI
HUNTER or BROWN
Appellants
against
HER MAJESTY’S ADVOCATE
Respondent
First Appellant: K Stewart QC, Dow; WSA Bannerman Burke
Second Appellant: M Jackson QC, Nicolson; AT Gilbertsons, Dalkeith
Third Appellant: Findlay QC, Young; John Pryde & Co SSC (for Graham Walker, Glasgow)
Respondent: Farquarson QC AD; the Crown Agent
4 September 2020
Introduction
[1] These three appeals concern the appropriate punishment parts to be imposed when a
child or young offender is sentenced to detention for life. The court emphasises that the
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punishment part does not represent the custodial term after which the offender will be
released from custody. It is a minimum period during which the offender will not be
entitled to apply for parole. It represents the period of time which the court considers
appropriate to satisfy the requirements for retribution and deterrence (Prisoners and
Criminal Proceedings (Scotland) Act 1993, s 2(2)). Whether, and if so when, the prisoner will
be released from custody will, after the expiry of the punishment part, be a matter for the
Parole Board for Scotland.
General
[2] Keirin Elliott was born in January 2000, Aron McMillan in December 2002 and Levi
Brown in June 2003. On 29 November 2019, at the High Court in Edinburgh, they were all
found guilty of a charge which libelled that:
“(005) on 21 February 2019 at Flat… Clearburn Road, Edinburgh you… did assault
Alasdair Forsyth, born 10 May 1951, then residing there, repeatedly strike him on the
head and body with a screwdriver, a hammer, a wrench, a walking stick and glass
picture frames or similar items, kick him on the head and body, stamp on his head
and body… rob him of a tablet and a mobile phone and you did murder him”.
[3] In addition, Mr McMillan, who is Mr Elliott’s younger brother, was found guilty of a
number of assaults to injury in Edinburgh, viz: (001) on RM, aged 14, on 28 January 2019 at
Ferniehill Road, by knocking him to the ground, repeatedly punching and kicking him on
the head and body and robbing him of his mobile phone and a packet of cigarettes; (002) on
GS, aged 14, on 3 February 2019 at Sharpdale Loan, by repeatedly punching and kicking him
on the head and body and knocking him to the ground; (003) on AG, on 5 February 2019 at
the Cameron Toll Shopping Centre by pushing him and repeatedly punching him on the
head; (004) on DD, also on 5 February at the shopping centre, by repeatedly punching and
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kicking him on the head and body. Mr Brown was also found guilty of aspects of charges 2,
3 and 4.
[4] All three were sentenced to be detained for life with punishment parts of: (1) 18 years
for Mr Elliot; (2) 17 years and 3 months for Aron McMillan; and (3) 17 years for Levi Brown.
The sentences all ran from 25 February 2019.
Facts
Charges 1 to 4
[5] On Monday, 28 January 2019, RM had been at school. At about 8.00pm he left home
to go for a walk in Fernieside Park. He was attacked from behind as libelled by two men
who searched him and stole his mobile phone and cigarettes. He was forced to reveal the
password for the phone. In the evening of 3 February, GS was in the McDonalds at
Cameron Toll. He was asked outside by Aron McMillan and Mr Brown and attacked by
them. The trial judge comments on the brutality of the attack, as shown on CCTV, by
Mr McMillan. On 5 February, two security officers at the shopping centre noticed a group of
boys and girls pushing themselves around in shopping trolleys. Mr McMillan and
Mr Brown assaulted them as libelled.
Charge 5
[6] Alasdair Forsyth was aged 67. He lived in a second (top) floor flat. He generally left
his door unlocked. He was of an eccentric nature and had few friends. CD was the aunt of
Mr Elliott and Mr McMillan. She lived across the road from the deceased in a ground floor
flat. At 10.00pm on 21 February, all three appellants were in her flat. Mr McMillan and
Mr Brown had been there for their dinner. Mr Elliott had, unexpectedly, come with them.
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He had previously left a bag of tools there. Mr Elliott repeatedly asked CD if the deceased
“had money in his books”. He had done this before over the previous months.
Mr McMillan was “pretty gone”. Mr Elliott said to the other two: “are we going to do that
job”. They then left the flat.
[7] The three had gone to the deceased flat and attacked him. As they left the deceased’s
flat, the police arrived and arrested them. Mr McMillan had been bare chested and had the
deceased’s blood on his hands. He had escaped the clutches of the police, but only
temporarily. He said that he had just been in the close to split up a fight. Mr Elliott and
Mr Brown had the deceased’s blood on their clothes and footwear. Mr Elliott said that “this
is all over my sister who got locked in the stairwell. The tools I had were for bikes…”. Later
that night he said that he had been the last to arrive at the flat and had tried to stop the other
two. A screwdriver, a wrench, a hammer and Mr Brown’s mobile phone were found in the
close. Mr McMillan had had a tablet computer in his possession with the deceased’s blood
on it. Forensic science suggested that picture frames, a broom and a walking stick, as well as
the wrench and hammer, had been used to attack the deceased. The deceased had a total of
80 injuries. The cause of his death was blunt force trauma to the chest.
[8] At interview, Mr Elliott said that he had been the last to arrive in the deceased’s flat.
He had tried to stop the other two. He denied having a weapon but later told his mother
that he had had the wrench although he had not used it. Mr McMillan and Mr Brown made
no comment. In a subsequent phone call from detention, Mr McMillan has said that “it wiz
fur money”. The plan had not been to attack the deceased. However, they were all “oot our
nut” and just “flew in and started setting about him”. Only Mr Brown testified. He said
that Mr Elliott had attacked the deceased. Mr McMillan had not done anything. He and
Aron McMillan had searched the house; stepping over the deceased’s body.
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[9] The trial judge took the view that Mr Elliott had been the “leader of this gang of
thugs”.
Mitigation
[10] Mr Elliott was 19. He had had a troubled background and had latterly had poor
mental health with previous episodes of self-harm and attempts at suicide. He had been
convicted of hamesucken at the age of 15 and received a Community Payback Order, which
he breached. Mr McMillan was 17. He too had had a troubled childhood. He had been in
care until 6 months before the murder. Violence was a feature of his life. Levi Brown had
been 15 at the time of the murder. His parents were chronic substance abusers. He had
been brought up by relatives. He had ADHD, which had been diagnosed when he was 9.
He had attempted suicide while on remand.
[11] In selecting the punishment part for Mr Elliott, the trial judge took his age into
account. He considered that there were several aggravating factors. First, as well as being
the oldest of the three, he was the prime mover and leader of the group. Secondly, the
murder was committed in the course of a planned robbery in which weapons were taken to
commit the crime. Thirdly, the murder involved an attack on a vulnerable and innocent
man in his own home. Fourthly, the violence was merciless and excessive. Fifthly the
previous conviction of Mr Elliott for hamesucken had also involved the home of a pensioner.
He had other convictions for dishonesty, drug taking, disorder and violence. Sixthly,
Mr Elliott had lied about his involvement and had shown no remorse. Finally, he was under
supervision at the material time.
[12] In relation to Mr McMillan, while the trial judge took account of his age, he also had
regard (as he was bound to do: Prisoners and Criminal Proceeding (Scotland) Act 1993,
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s 2(2)(a)) to the other convictions for assault and robbery. As with Mr Elliott, the planned
robbery aspect of the murder and the level of violence on a man in his own home were
aggravating features. Weapons had been carried and used. Although he had no previous
convictions because of his age, Mr McMillan had a history of violence as set out in the
Criminal Justice Social Work Report. He was also on bail at the material time. The judge
Although this was not a stabbing, it was as bad a murder by stabbing.
[13] The trial judge took similar features into account in selecting the punishment part for
Mr Brown. These included the other convictions, the planned nature of the robbery, the
attack on a man in his own home, the level of violence and the weapons carried and used.
Although the youngest, Mr Brown also had a history of disorderly behaviour, drug taking
and violence. He was the subject of a supervision order at the time. He had shown a lack of
insight and victim empathy. Kinlan and Boland (supra) and Mitchell v HM Advocate (supra)
again feature in the judge’s reasoning.
Submissions
Mr Elliott
[14] The contention was that the punishment part was excessive. The exercise of
sentencing a child or young person was different from that of an adult (Hay v HM Advocate
[2020] HCJAC 30 at para [21]). Mr Elliott was in an acknowledged category of “young
Advocate (supra) at para [1]). The origins of the modern approach to the sentencing of young
offenders stemmed from Kane v HM Advocate 2003 SCCR 746 (at para [11]). Retribution and
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deterrence are not the only material considerations (see Hay v HM Advocate (supra) at
[15] The trial judge had afforded insufficient weight to the youth of the appellant and his
troubled background. Mr Elliott and his family were known to the local social work
department. His parents’ relationship was characterised by violence, domestic abuse,
substance misuse and poor mental health. He had had insufficient care as an infant and was
later the subject of compulsory measures of care. He had poor mental health.
[16] The trial judge had erred in imposing a lengthier punishment part than those of the
other appellants. There was no evidence that he had been the principal actor. CD had been
hostile to Mr Elliott and her testimony, about him bringing tools to her flat and asking if the
deceased had money, had been contradicted by other evidence. The tools were irrelevant
because it was well known that the deceased never locked his door and there was no need to
break in. CD had never been in the deceased’s flat and would not have known anything
about there being money there. The appellant had been to the flat and was a friend of the
deceased. There was objective evidence that the appellant had been a moderating influence
in the McDonald’s incident. There was no evidence that age had played a part in the attack.
Mr McMillan
[17] It was submitted that the punishment part was excessive having regard to three
factors. First, Mr McMillan was only 16 at the time of the offence. The Scottish Sentencing
Council: Sentencing young people – Draft sentencing guideline recognised that a different
approach was required when sentencing young persons because of their lack of maturity
and greater capacity to change. Mr McMillan had a greater ability to rehabilitate himself
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than an adult offender. Secondly, the Criminal Justice Social Work Report revealed that
Mr McMillan had accepted responsibility and expressed remorse. Thirdly, Mr McMillan’s
troubled background required to be given weight. At the time of the offence, Mr McMillan
was an extremely damaged person. He had experienced several adverse childhood
experiences including: being aged 5 when his home was attacked and the fan lights smashed
by golf club wielding men who removed his father; taking part in an assault being
perpetrated by his father and uncle on a man in a car when he was seven, this resulting in
his father being sentenced to 6 years in jail; and being the subject of compulsory measures of
care and moved thirteen times from one environment to another (eg institution to foster
care) before being left on his own at the age of 16. Mr McMillan had acknowledged that he
had “no boundaries and no life”. He had significantly lacked intellectual and emotional
maturity as a consequence of his upbringing. He had also been abusing Valium at the time.
Mr Brown
[18] Once again, the contention was that the punishment part was excessive standing, in
particular, Mr Brown’s age. The court had to have regard to the best interests of Mr Brown,
as a child, as a primary consideration as well as the desirability of the child’s reintegration
into society (McCormick v HM Advocate (supra) at para [4]). Even the most heinous crime was
not necessarily evidence of an irretrievably depraved character. The important aim of any
sentence would be to promote the process of maturation, the sense of responsibility and the
growth of a healthy adult personality and identity (ibid citing R (Smith) v Secretary of State for
the Home Department [2006] 1 AC 159). Mr Brown was entitled to be given the opportunity to
make something of his life. So far, he had had no normal life at all. His parents were drug
abusers. He had been born suffering the effects of this. He had been brought up by
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relatives. He had developed ADHD by the age of 9. He has signs of Post Traumatic Stress
Disorder. He suffered from depression and had attempted suicide.
Decision
[19] 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 CD’s evidence, which he was entitled to
accept despite the criticisms made of it.
[20] When sentencing any offender to a period of imprisonment for a serious criminal
offence, the court will normally have regard, when selecting a substantial custodial term, to
the prospects of successful rehabilitation (Scottish Sentencing Council: Principles and purposes
of sentencing, at para 5). Where there has been a conviction for murder, the sentence is either
detention or imprisonment for life. It is not possible to modify that penalty. In setting the
punishment part, the focus is on determining a period which satisfies “the requirements for
retribution and deterrence” (Prisoners and Criminal Proceedings (Scotland) Act 1993, s 2(2)).
The issue of rehabilitation does not directly impact on the punishment part (Rizzo v HM
Advocate [2020] HCJAC 40, LJG (Carloway), delivering the opinion of the court, at para [17]).
[21] When selecting a punishment part, the court does have to have regard to the issue of
culpability. It is well recognised that, because of their lack of maturity, the degree of blame
to be attributed to a younger person or a child may be less than that of adults who have
para [23], LJC (Dorrian), delivering the opinion of the court, at para [23]). In the case of a
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child, his or her best interests must also be regarded as a primary consideration (McCormick
court, at para [18] and referring to the UN Convention on the Rights of the Child Art 3(1)).
[22] 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. 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.
[23] 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. The court will quash the punishment part of 18 years imposed on Mr Elliott
and substitute one of 16 years. It will quash the punishment parts of 17 years and 3 months
for Mr McMillan and 17 years for Levi Brown and substitute punishment parts of 13 years.