Appellant: Shead, A. Brown, Advocates; Drummond Miller

Respondent: Borthwick, A.D.; Crown Agent

17 December 2009

[1] In the early hours of Sunday 22 April 2007 a school-boy named Alexander Kindred (15) met James Kerr (53) in a parkland area in Perth. What occurred is not clear, but Kindred thereafter contacted Martin Soutar (21) by mobile telephone and alleged that he had been assaulted. Soutar responded by saying: "Don't do nothing till we get down there, I'll be down in a couple of minutes". Soutar and the appellant (19) went to the South Inch and met Kindred. The group actively searched for Mr Kerr. When Kindred saw Mr Kerr alone on a path close to the boating pond, he ran up to him, punched him in the face, and tripped him up knocking him to the ground. While he was lying there, the appellant and Soutar punched and kicked him on the head and upper body. Soutar then stopped attacking Mr Kerr, but the appellant continued to kick him on the head. Soutar searched through Mr Kerr's pockets. He found a set of keys and a lighter, which he threw into the boating pond. The three walked away, leaving Mr Kerr lying on the ground bleeding heavily from a head wound and making a snoring sound. At no time did the three try to call for medical assistance. They went to a party at Woodside Crescent, Craigie, Perth. They talked about just having assaulted someone on the Inch. One witness spoke of Kindred claiming that " ... a poof tried it on with [him]" whereupon he hit him. The three later walked past Mr Kerr, lying in the same position as they had left him.

[2] At 0430 am that Sunday, Mr Kerr was found by a passer-by. Police and para-medics were summoned. Mr Kerr was unconscious and having difficulty breathing because his airway was blocked with blood. He had lacerations and swellings to his face and head. At Accident and Emergency he was found to have lacerations to his fingers and hands, and severe head injuries including lacerations, bruising and swelling, bone fractures, and brain damage. He died later that day without having regained consciousness.

[3] During an interview with the police, the appellant admitted that he understood that someone had hit Kindred. Accordingly he, Soutar, and Kindred went looking for Mr Kerr in the park in order "to hit him" and "to hurt him".

[4] The three were subsequently charged with murder. A trial commenced. On the second day of the trial, 15 October 2007, the three pled guilty as follows: the appellant to murder; Soutar to culpable homicide; and Kindred to assault. The precise terms of the appellant's plea was as follows:

"You did assault James McNab Kerr ... punch him on the face, knock him to the ground, repeatedly punch him on the face and head, and repeatedly kick his face and head, whereby he was so severely injured that he died on 22 April 2007 at Ninewells Hospital, Dundee, and you did murder him".

[5] The trial judge (Lord Macphail) narrated the appellant's plea in mitigation at page 12 of his report in the following terms:

"Counsel for the appellant stated that the appellant deeply regretted his involvement in the offence. The appellant said that there was no homophobic element in his involvement. He had made a misguided attempt to assist Kindred, whom he believed to have been the victim of an assault. He had not intended to cause death. Counsel had offered a plea of culpable homicide on 31 August 2007, which had been refused within a day or so. On 3 September 2007 counsel had offered a plea of guilty to murder on an art and part basis with Soutar, but within a day that had also not been accepted. The plea which had now been accepted had resulted from the viewing of a DVD of an interview with a crucial Crown witness which had not been available until the beginning of the trial. The appellant had been drinking during the day before the offence. He went along with Soutar after Soutar had received the phone call from Kindred, and he became involved. His remorse was genuine. Counsel referred to the social enquiry report and observed that the appellant's background had been atrocious: he had had no support. It was to his credit that he had spent reasonable periods in employment. Despite his background, he had only one previous conviction, a contravention of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 for which he had been fined £300 in the sheriff's summary court on 21 July 2006 ..."

[6] Lord Macphail then sentenced the appellant to life with a punishment part of 18 years, reduced to 16 years because of the plea of guilty on the second day of the trial. He noted in his report at page 14:

"When considering the question of sentence I took into account the fact that this had been a killing of a callous and brutal character, which appeared to have been marked by a homophobic element.

In view of the appellant's age, I was required to sentence him to be detained in a young offenders' institution, and he is liable to be so detained for life. In fixing the period he must spend in custody before being eligible for consideration for release on licence, I took into account, in the first place, the seriousness of the offence. As far as the appellant was concerned, this was a savage and sustained attack upon a defenceless man who had done him no harm. I also took into account the facts that the appellant had only one previous conviction, at summary level, and that he had never served a custodial sentence. I also noted the stage and circumstances of his plea of guilty, and that he had been in custody since 25 April 2007. Having considered all these matters, I concluded that, but for his plea of guilty, the period the appellant would spend in custody would be 18 years. In view of the plea, I reduced the period to 16 years."

[7] Soutar was sentenced to an extended sentence of 12 years (9 custodial reduced from 12 because of the plea) of which 4 months was attributed to a bail aggravation. Kindred, who was noted to have been in considerable trouble at school in relation to consumption of alcohol, failure to follow guidance and challenging behaviour towards teaching staff, was sentenced to 12 months detention (reduced from 18 because of the plea).

[8] In this appeal against sentence, two arguments were presented, namely:

(i) The starting point for the punishment part was excessive.

(ii) Regard should be had to the appeal court's reduction of the sentence in Soutar's case.

[9] In relation to the second argument, counsel drew attention to page 16 of the trial judge's report, which noted:

"The second ground [of appeal] is:

'Separatim the sentence was excessive when compared to the sentence substituted on appeal in respect of the former co-appellant Martin John Soutar ... In April 2008 the Court of Appeal reduced the custodial term of Soutar's sentence to 6 years with the extension period remaining at 3 years.'

I acknowledge the force of that consideration. No doubt your Lordships will be provided with the opinion issued by the court on that occasion."

[10] Counsel advised that he believed that an ex tempore opinion had been issued in Soutar's appeal. No copy of the opinion was available. He accepted that Soutar had been convicted of culpable homicide, not murder, and accordingly that the court was not concerned with a straight-forward question of comparative justice. He nevertheless urged the court to have regard to the reduction made in Soutar's case.

[11] In relation to the first argument, counsel submitted that the trial judge had chosen a starting point which went beyond the range appropriate for murders of this character. Under reference to Walker v HM Advocate 2002 SCCR 1036 and Flynn v HM Advocate 2004 SCCR 2, he suggested that there was a range of about 12 to 20 years. The appellant's case had none of the aggravations referred to in Walker. Moreover there were several mitigatory circumstances. First, the appellant only became a participant in the incident because of Kindred. He was in effect stimulated into action by Kindred. Secondly, no weapon had been carried or used. Thirdly, the appellant had no criminal record. Fourthly, as the social enquiry report disclosed, his home circumstances were wretched. While the sentencing judge had proceeded on the basis that the attack involved some homophobic element, it had been emphasised in the plea in mitigation that there was no homophobic element on the appellant's part. There was nothing noted in the judge's report which might suggest that Kindred's thoughts or motives should be attributed to the appellant. Had there been any real doubt as to whether the appellant was, or was not, homophobic, that issue should have been explored in a proof in mitigation. Finally, while acknowledging the care with which the judge considered the circumstances of the case, counsel submitted that the starting point was excessive, bearing in mind (a) the range of reported punishment parts fixed by the courts; (b) the appellant's personal circumstances; (c) the mitigatory circumstances, referred to above; and (d) the reduction on appeal of Soutar's sentence.

[12] We have carefully considered counsel's submissions. This was a particularly unjustified, vicious and callous attack upon someone unknown to the appellant, who had done him no harm. As the appellant explained to the police, he went looking for Mr Kerr with the avowed intent to do him harm. From the judge's report, it is clear that the appellant inflicted a significant number of forceful punches and kicks to the victim's head. Mr Kerr was then left lying on the ground with obvious head injuries, bleeding heavily and making a snoring noise. The three went off to a party, where they boasted of their exploit. Later, the three again walked past the victim lying in the same position. They made no effort to call for help for him. The sentencing judge was well entitled to take a grave view of the offence when assessing the appropriate punishment part for the purposes of retribution and deterrence. However in making that assessment, which he did with great care, it appears to us that insufficient weight was given to the appellant's youth, his lack of previous convictions (having only one, at summary level), the fact that no weapon was used, the positive features outlined in the social enquiry report, the remorse expressed by the appellant, and the fact that the appellant appears to have been "led on" to a considerable extent by his younger co-accused Kindred. Moreover there appears to have been no acknowledgement by the judge of a subtle but important difference between the appellant and Kindred, in that while Kindred may have been motivated by homophobia, there was no evidence to suggest that a similar motive affected the appellant.

[13] In all the circumstances we have reached the view that the factors outlined above should have been given greater weight. Accordingly we are persuaded that the starting point of 18 years is excessive in this particular case. In our view, the proper starting point was 16 years. Allowing the same number of years in respect of the discount for the plea (i.e. 2 years) we shall quash the sentence imposed only insofar as relating to the punishment part, and substitute therefor a punishment part of 14 years.

[14] We should add that we did not find the Appeal Court's decision to reduce the sentence in Soutar's case to be of any great assistance, particularly in the absence of a copy of the reasons given by the court. As counsel correctly acknowledged, Soutar was convicted of culpable homicide, not murder, and any decision in his case is not necessarily of relevance in the appellant's case. Finally, the five-judge decision in HM Advocate v Boyle, Maddock and Kelly [2009] HCJAC 89 was issued while this appeal was at avizandum. We do not consider that the punishment part substituted by us in this case in response to counsel's submissions requires to be re-visited because of anything said by the court in Boyle, Maddock and Kelly.