Murderer with previous conviction for killing own father has punishment part reduced on appeal

David Collins, who was previously jailed for five years after being convicted of the culpable homicide of his own father, was sentenced to a minimum custodial period of 26 years for the murder of Kevin Bishop, beheading the deceased and dismembering the victim’s body.

But the High Court of Justiciary Appeal Court reduced the punishment part to 22 years after ruling that the trial judge failed to follow the correct approach to sentencing in such cases.

‘Despicable and sickening’

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull, heard that the appellant was sentenced on 17 May 2019 following a trial at the High Court in Glasgow for what the trial judge described as a “motiveless killing”.

The “despicable and sickening” murder was committed with a machete and thereafter he dismembered the deceased’s body before disposing of the body parts in various rubbish bins, but only the victim’s torso was recovered.

The court was also told that the appellant had previous convictions for violence including the culpable homicide of his father in 2002, for which he sentenced to five years’ imprisonment.

The trial judge indicated that had the murder charge stood alone the punishment part would have been 21 years, but that was “a lower figure” selected because the trial judge intended to add a “significant element” for attempting to pervert the course of justice, but did not identify what that figure would have been.

The trial judge considered that a sentence of 10 years would have been appropriate for the remaining part of the indictment and increased the punishment part to reflect the period of such a sentence which would have accounted for “retribution and deterrence”.

The appellant challenged the sentence imposed, and the appeal judges reduced the punishment part by four years.

‘Correct approach’

The judges explained that the “correct approach” to sentencing in a case such as this was identified in Chalmers v HM Advocate (No 1) 2014 JC 220, which does not provide for a reduction in the element of the punishment part allocated to the murder to reflect a consequent increase for additional charges on the indictment.

What the court requires to do is first, decide whether the additional charge should be included in the punishment part.

Having decided that it should, the trial judge should then “make an overall judgment having regard to the punishment part that would have been appropriate if the murder stood alone; the element of retribution and deterrence attributable to the conviction on the lesser charge; and the loss of the opportunity for early release that an independent sentence on that charge would have given”.

This exercise, the judges added, also involved the application of the “totality principle”.

Delivering the opinion of the court, the Lord Justice Clerk said: “In our view the approach of the trial judge did not accord with that identified in Chalmers. The circumstances of Chalmers are of particular relevance, the appellant, having a prior conviction for murder.

“He was convicted of the murder of a vulnerable young woman not previously known to the appellant in a violent assault (described by the trial judge as a ‘depraved and dreadful crime’), and attempting to defeat the ends of justice by cutting up the body and hiding the remains for over a year, resulting in a punishment part of 23 years, three of which was attributed to the latter aspect of the indictment.

“Given that the appellant in Chalmers had a prior conviction for murder, it is difficult to see that a sentence in excess of that imposed there would be merited.”

Lady Dorrian concluded: “In our view, taking an overall judgment reflecting all the relevant factors, we consider that an appropriate punishment part would be 22 years, of which three years would be attributable to the second charge, on which the concurrent sentence will be six years.”