High Court takes two years off punishment part of sentence after appeal by man who killed partner in front of their daughter

About this case:

• Citation:
  [2024] HCJAC 50
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Doherty

Colin Kennedy was convicted of the murder of Catherine Stewart on 7 August 2024 at the High Court in Glasgow after a defence of diminished responsibility was not accepted by the jury. He argued that 25 years was an excessive punishment part having regard to the circumstances of the case and the lengths of punishment parts given in similar previous cases.

The appeal was heard by Lord Doherty, Lord Armstrong, and Lord Beckett. The appellant was represented by Cobb, advocate, and the Crown by Prentice KC, advocate depute.

Admitted the killing

In or around September 2020, the relationship between the appellant and the deceased began to become strained after she developed a closeness with a son of the appellant from a previous marriage, A. The appellant and A had been estranged for many years, and he was unable to accept that the deceased and A had formed a bond. This culminated in the irretrievable breakdown of the relationship.

On 4 July 2021, the appellant and the deceased argued over when the appellant would leave their home. In the presence of their 17-year-old daughter B, the appellant attacked the deceased with a kitchen knife and stabbed her from behind so forcefully that she received a fatal injury to her aorta. B attempted to move the appellant but when she left to get help from the neighbours the appellant returned to the kitchen and continued assaulting the deceased.

At trial the appellant’s defence was that he suffered from a mental disorder, namely a delusional disorder of the jealous type, and so was guilty of culpable homicide by reason of diminished responsibility. The jury did not accept his defence and convicted him of murder.

The sentencing judge considered that the appellant had carried out a planned execution of a vulnerable domestic partner, noting that the deceased had a history of arthritis and breast cancer and required the use of a stick to walk. He described the case as the worst case of domestic violence that he had seen, and selected a punishment part of 24 years, with a one-year aggravation for partner abuse.

For the appellant it was submitted that a punishment part of 25 years was excessive for the murder of a single adult victim, being more appropriate for multiple murders or the murder of a child. There were mitigating factors present in that the appellant admitted the killing from the outset and had been suffering from considerable stress. A comparison was drawn with the third respondent in HM Advocate v Boyle (2010), who was given a punishment part of 22 years for the premeditated murder of an elderly woman with the aggravation of attempting to conceal the crime.

Impulsive response

Lord Doherty, delivering the opinion of the court, began by noting: “As the sentencing judge observed, this was a case where extreme violence involving a knife was used against a partner. The attack was merciless. Other aggravating factors were that the murder took place in the deceased’s home; that although 6 years younger than the appellant, the deceased was more vulnerable than him; that the attack took place in the presence of B; that there was evidence of a degree of premeditation; and that in the immediate aftermath of the killing the appellant showed no signs of remorse.”

However, he continued: “There was evidence that before the murder the appellant had had some thoughts about killing the deceased, but what occurred on the day of the murder appears to have been more an impulsive response to heated argument that day than a killing which was planned in advance. When the police arrived the appellant appeared calm; but when he was interviewed 5 days later by Dr Steven he wept inconsolably, and he expressed deep regret about what he had done.”

Comparing the appellant’s case to Boyle and other previous cases, Lord Doherty said: “Rizzo v HM Advocate (2020) concerned the exceptionally brutal and premeditated murder of a partner. The appellant had a previous conviction for domestic violence. He showed no remorse. The only mitigating factor was his relative youth. The court held that the punishment part of 22 years was not excessive.

He concluded: “While in some respects Rizzo was a worse case, the appellant there was a relatively young adult of 23 at the time of the murder. Here, had there not been the partner abuse aggravation, an appropriate punishment part would have been 21 years, a figure which falls between the punishment parts given to the first and third respondents in Boyle. In light of the partner abuse aggravation the appropriate punishment part is 23 years.”

The court therefore allowed the appeal, quashed the original punishment part and substituted one of 23 years.