David Collins v. Her Majesty’s Advocate [2019] HCJAC 69

Note of appeal against sentence:- On 17 May 2019, at Glasgow High Court, the appellant was convicted after trial of a charge of murder and attempting to defeat the ends of justice by dismembering the deceased’s body and disposing of it. The only part of the deceased’s body recovered was the torso, from a bin outside the appellant’s flat. The appellant was sentenced to life imprisonment with a punishment part of 26 years. It was the appellant’s position at trial that he acted in self-defence and struck the deceased once on the neck with a machete he having been attacked by the deceased who was in position of a knife and attempted to take the appellant’s eye out. The appellant’s position was rejected by the jury and he was convicted of murder. The sentencing judge reported to the court that had the murder charge been the ‘only’ charge the punishment part would have been 21 years. The sentencing judge considered that a significant period should be added to reflect the seriousness of the attempting to defeat the ends of justice charge. The sentencing judge considered that a sentence of 10 years would have been appropriate and increased the punishment part to reflect the period of a sentence which would have related to retribution and deterrence. In addition, the appellant had a significant schedule of previous convictions including a conviction for culpable homicide relating to the appellant’s father for which the appellant received a 5 year sentence of imprisonment. It was submitted on behalf of the appellant that the punishment part selected was excessive with particular reference to the opinion of the court in Chalmers v HMA (No 1) 2014 JC 220. It was submitted that the correct approach was to decide whether an additional charge should increase the punishment part and, if so, the period to be imposed for the lesser charge for the element of retribution and deterrence and the loss of the opportunity for early release that a separate sentence on that charge would have given, albeit that aspect is of less relevance now. Here the court allowed the appeal. The court considered that the sentencing judge did not follow the approach as enunciated in Chalmers. In Chalmers the appellant had a previous conviction for murder and was convicted after trial of the murder of a vulnerable young woman and attempting to defeat the ends of justice by cutting the deceased’s neck and body and hiding her remains for over a year. The Appeal Court in Chalmers approved a punishment part of 23 years, 3 years of which was attributed to the attempt to defeat the ends of justice. Following the approach in Chalmers and having regard to the fact that in Chalmers the appellant had a previous conviction for murder, the court here considered that a sentence in excess of what was imposed in Chalmers was not merited. The court in considering all of the relevant factors quashed the sentence of 26 years and imposed a punishment part of 22 years, of which 3 years was attributable to the attempting to defeat the ends of justice charge, on which the concurrent sentence was 6 years.