David Barnes v. His Majesty’s Advocate [2024] HCJAC 23

Note of appeal against sentence:- Following a trial at the High Court of Justiciary, the appellant was convicted of a charge of murder (charge 4) and, on 13 December 2023, he was sentenced to life imprisonment with a punishment part of 23 years backdated to 24 December 2021. In relation to a charge of attempting to defeat the ends of justice (charge 8) the appellant received a sentence of 5 years to be served concurrently with the sentence of life imprisonment. The appellant appealed against the sentence imposed it being contended that it was excessive having regard to:- (1) the mechanism and cause of death could not be established due to the condition of the remains of the deceased which were only found a year after death; (2) the appellant’s limited record of previous convictions; (3) a comparison with the sentence in Chalmers v H.M.A. 2014 J.C. 229 where the appellant received a punishment part of 23 years where he had dismembered and concealed the body of the deceased and had a previous conviction for murder; (4) in Cameron v H.M.A. 2011 SCL 633 it was said that a punishment part should be limited where the means by which death was caused cannot be ascertained; and (5) the concurrent sentence of 5 years on charge 8 was excessive having regard to the circumstances in Chalmers. Here the court refused the appeal. The court noted that the sentencing judge, having heard the evidence during the trial, took the view that the murder of the deceased had been financially motivated, took place in the deceased’s own home and a breach of trust was an aggravating feature. The court considered that, whilst the appellant’s previous convictions were not as serious as those present in Chalmers, the sentencing judge was entitled to find that the appellant’s previous convictions, which included theft, fraud and assault to injury, were of some relevance to a financially motivated murder was correct to have regard to them in selecting the punishment part. The court also noted that in the cases referred to on behalf of the appellant the court did not endorse a principle that an inability to ascertain the cause of death necessarily limits the selection of the punishment part. The court also reiterated, referring to Owens v H.M.A. 2022 S.C.C.R. 246, that there has been a recent upward trend in the imposition of punishment parts for murder. The court agreed with the trial judge’s approach in relation to financial motivation being an aggravating factor and described the appellant having committed a “calculated, premeditated murder for economic gain by inveigling his way into his victim’s trust, which he then abused” albeit being unable to say anything about how the appellant murdered the deceased or the level of violence he used against him. In relation to the concurrent sentence of 5 years imprisonment in relation to charge 8 the court did not consider that it was excessive albeit recognised that the three years the sentencing judge attributed to the punishment part for charge 8 was a moderately higher proportion than those seen in Chalmers and in Collins v H.M.A. 2020 S.L.T. 465 but considered that the exercise carried out is a broad one.