Sentencing Guidelines for Punishment Parts

HMA v Boyle & Others

This is a five bench decision in a Crown Appeal against sentence. The actual circumstances of the cases involved are not of the greatest importance however the case is of considerable significance to all criminal practitioners.

All of the appellants had been convicted of murder. The basic proposition of the Lord Advocate (who argued the appeal) was that punishment parts for murder were generally speaking too low. The Appeal Court basically agreed. There are a number of points to note.

1. In so far as previous cases may have suggested that 30 years is the maximum punishment part which could be imposed for murder that is disapproved. The Lord Justice General states that circumstances can be envisaged where a sentence in excess of that would be appropriate. Terrorism is specifically mentioned.

2. 12 years will not be the starting point for punishment parts in murders. It will be expected to be higher. Where the murder involves the use of a knife or similar instrument the starting point will be 16 years other than in exceptional circumstances (such as accused being a child).

3. The discount to be applied to punishment parts will be one sixth where the plea is tendered at the first available opportunity, presumably by s76, up to a maximum of 5 years.

4. In the cases the court was dealing with here, the punishment parts were increased from 15 years to 20 years, 12 years to 18 years and 15 years to 19 years. In the first two cases these were sentences imposed after trial. In the final one the accused pled guilty at the first Preliminary Hearing. His sentence was discounted from 22 years due to his plea.

It is difficult to know exactly what the effect of this decision will be. However it is important to know of its terms in order that appropriate advice can be tendered to those appellants who have outstanding appeals and those awaiting trial for murder who may be considering tendering a plea.

Brian McConnachie QC