BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Irish Court of Appeal


You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosecutions v P. B. (Approved) [2023] IECA 305 (05 December 2023)
URL: http://www.bailii.org/ie/cases/IECA/2023/2023IECA305.html
Cite as: [2023] IECA 305

[New search] [Printable PDF version] [Help]

 

THE COURT OF APPEAL

 

Neutral Citation: [2023] IECA 305

Record Number: 75/2020

The President.

McCarthy J.

Kennedy J.

 

 

 

BETWEEN/

 

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

 

RESPONDENT

 

- AND -

 

P.B.

 

APPELLANT

 

JUDGMENT of the Court delivered on the 5th day of December 2023 by Ms. Justice Isobel Kennedy.

1.         The appellant pleaded guilty to the murder of Cameron Blair, a 20 year old student and, on the 20th April 2020, was sentenced to detention for life with a review after a period of 13 years. The appellant was less than a month away from his 18th birthday at the time of sentence. He was four months shy of his 18th birthday at the time of the murder. He now appeals the severity of his sentence.

Factual Background

2.         On the evening of the 16th January 2020 Cameron Blair and some friends travelled by taxi to a house on Bandon Road in Cork for a house party. There was a lot of coming and going at the party and Mr Blair and one of his friends, Mr David Sheehan, positioned themselves at the front door to monitor who was coming in.

3.         At around 7:00pm, the appellant and two of his companions, were walking along Bandon Road when they came across a homeless man. They began walking with him. This man banged on the door of the party looking for an individual whom he called Barry. He was told that the person was not there and was asked to leave. The door was closed but the lock was damaged and so he was able to push the door open again. One of the house tenants came out and told the man to leave and pushed him away at which point he fell to the ground.

4.         The appellant and his two companions remonstrated with the student who had refused entry to the man. In an effort to diffuse the situation, Mr Blair invited the three youths into the party. They entered the party and sat in the sitting room. The appellant says that at some point during the course of the night, he and his friend somehow got the impression that they were under threat from someone at the party and went to the kitchen to arm themselves with kitchen knives. There was no evidence of any threats to them. The appellant placed a large kitchen knife down his trousers and returned to the sitting room where he kept it down the side of the sofa where he was seated. When the appellant left the house to purchase alcohol, he took the knife with him.

5.         At approximately 9:00pm, one of the attendees at the party approached one of the appellant's older friends and asked him if he could buy some cannabis from him. This friend made a phone call to another man and told the attendee that he could get three grams for him for €50.

6.         The attendees of the party became uncomfortable with the presence of the appellant and his two companions because they were becoming louder and more intoxicated. A plan was contrived whereby the students would pretend that the party was over and that the group was going to a nightclub in town and so they would go outside and once the three young men had left, the students would then return to the house and the party would resume.

7.         In keeping with the plan, a number of students left the house and stood outside on the footpath. A dispute then arose over the cannabis arrangement. Just prior to this dispute, the appellant and Mr Sheehan had left the house to purchase alcohol. It was necessary for the appellant to be accompanied by Mr Sheehan as he was underage. Mr Sheehan was to tell the appellant while they were out of the house together that the party was over, and he and his friends were to leave. On the way back to the house, the pair encountered gardaí, the appellant showed Mr Sheehan the knife and asked him to carry the alcohol in case they were stopped.

8.         When they arrived back at the house, a loud argument had unfolded on the footpath outside in relation to the cannabis and Mr Blair had positioned himself in the doorway blocking people from re-entering. The younger of the appellant's two companions pushed against Mr Blair in an attempt to re-enter the house. He then produced a knife. A couple passing the house and witnessing the younger man armed with a knife and Mr Blair in the doorway, called the gardaí.

9.         The appellant, who was initially standing across the road, crossed over towards the house with a knife in his right hand. CCTV footage shows the appellant standing on the edge of the footpath, tapping a long knife against his leg.

10.      At approximately 9:15pm, Mr Blair was trying to calm the situation. A young girl, who knew one of the appellant's friends, tried to reason with the group of three youths. She placed herself between the door and the appellant's group. The appellant's younger friend had an exchange with her and then punched her with his closed fist in the face. Mr Blair told the younger boy to move away. A couple passing by were shocked when they saw a young man pull a knife from his jacket — this was the 14 year old — and show it to his two companions. They called the Gardai. As described by the trial judge, there was now a growing fear inside the house regarding the developments outside, which also caused fear to passers-by. Mr Blair was attempting to calm the situation, the three would not be calmed.

11.      After the young girl was punched, the appellant moved himself to the middle area of the doorway directly in front of it, waving his knife about, laughing. CCTV footage shows that there was a push towards the front door and the appellant struck his knife into Mr Blair's neck in a downwards motion. Mr Blair passed away later on that night in Cork University Hospital due to the gravity of his injury. There were also areas of injury identified in the upper right forearm with a minor injury on the right hand suggestive of defensive type injuries.

12.      Mr Blair tried to restore calm throughout and was never in any way aggressive in his behaviour, quite the contrary, he was the peacemaker.

13.      The kitchen knife used in the murder of Mr Blair was 33 centimetres in length total with a blade of 21 centimetres in length. It was 2.5 centimetres wide at its widest point. The garda gave evidence at the sentence hearing that the appellant kept the knife with him for at least an hour before the murder.

14.      The appellant and his two companions ran from the scene. The appellant threw the knife and gloves he had been wearing down a steep embankment. He went home and changed his clothes and then went to stay in his grandfather's house bringing with him the clothes he had been wearing during the offence in a plastic bag. His grandfather took his mobile phone from him.

15.      The appellant initially handed over a different set of clothes to gardaí but ultimately gave them the clothes he had been wearing on the night in question. Traces of blood were found on the jacket handed over which were a DNA match to the deceased.

16.      In interview, the appellant initially maintained that he was not responsible for the killing, he then accepted he had swung the knife at Mr Blair because he had exchanged punches with one of his friends. He accepted that this blow was inflicted in a downward direction. He said he did not intend to kill Mr Blair and at the end of his interviews he added a statement of regret and apology for what he had done.

Sentencing Remarks

17.      The sentencing judge noted that the appellant and his friends were guests at the house party and for no identifiable reason armed themselves with knives from the kitchen of the house, that the murder weapon was then hidden by the appellant and removed from the house when going to the shop to purchase alcohol. He held it openly in the public street outside the house, he and his friends introduced knives into the situation to threaten, frighten and intimidate those at the door and in the house, he knew Mr Blair was unarmed and not a threat to him or his companions, he attacked Mr Blair in a move which the deceased clearly did not anticipate and inflicted a knife wound to his neck in a deliberate act of wanton violence carried out with speed, he then ran from the scene and took no steps to secure assistance for Mr Blair, and in the hours after showed very little interest in his welfare or any regret for what he had done, he disposed of the knife and the gloves he wore when committing the offence in an effort to dispose of evidence and he lied to gardaí by trying to suggest that Mr Blair was exchanging punches with him and his younger friend.

18.      In terms of mitigation, the court took into account, the appellant's plea of guilty and the value thereof and that he expressed sorrow for the offence and its consequences. The judge noted that for the purposes of the Children Act, 2001, as a person under the age of 18 years, the appellant's age must be considered a mitigating factor and that a lengthy period of detention is something that may appear more daunting to a person of his age than to an older offender. The judge took the view that despite being before the court on a number of public order matters which were related to his abuse of alcohol, he had to consider the appellant as a young person who does not have previous recorded convictions. Account was taken of the fact that shortly after sentencing, the appellant would be transferred for a lengthy period in an adult prison which would be difficult for a young person with no previous experience of detention or history of serious offending. Regard was also had to the contents of the Probation Report.

19.      In an extensive and conspicuously careful ruling, the judge considered the principles applicable to the sentence of a minor for murder, recognising that a court may impose detention for life to be reviewed on a specified date. At that point, the court may determine whether release is appropriate or whether further detention is required.

20.      The judge took account of the very high level of culpability on the appellant's part, he being the person who committed the physical act of murder. He considered that his culpability should be assessed with reference to his age, being 4 months shy of attaining his majority at the time of the commission of the offence, his stage in life, development, and maturity at the time of the commission of the offence. On considering the evidence, including the CCTV footage, the pathologist's report, the plea and aspects of the appellant's account, the judge was satisfied that the appellant fully understood the nature and likely consequences of his actions in stabbing Mr Blair.

21.      Consequently, the judge imposed a sentence of detention for life with a review after a period of 13 years, at which point his release will depend upon his behaviour and response to services whilst incarcerated.

22.      The court further directed the preparation of detailed reports under the supervision of the Probation Service and with the cooperation of the prison authorities and other relevant professional services at intervals during the appellant's custody, to be submitted at various intervals to the court.

Personal Circumstances of the Appellant

23.      The appellant resided with his father after his parent's separation when he was very young. His grandmother took on a maternal role but died when the appellant was 16 years of age. His father found it difficult to control the appellant's behaviour after her death. The appellant began drinking alcohol at 15 years of age and developed a problem. He left school early on in fifth year of secondary school and worked in various jobs. He was referred by the Probation Service to the Health Services Young Persons Substance Abuse Service in February 2019 after two public order offences.

Grounds of Appeal

24.      The appellant relies on three grounds of appeal as follows:-

1.   The learned sentencing judge erred in imposing a sentence upon the appellant which deprived him of his rights pursuant to the Parole Act 2019

2.   The sentence imposed on the appellant was in all of the circumstances disproportionate, excessive and out of kilter with sentencing norms

3.   The learned sentencing judge erred in failing to have any or any sufficient regard to the various mitigating factors in the case

Submissions of the Parties on the Appeal

Ground 1

The Appellant

25.      The essence of the argument made is that the sentencing judge sentenced the appellant in such a way so as to deprive him of his right to consideration for parole after 12 years, a right which he would have had were he an adult at the date of sentence. This, it is said runs contrary to the scheme and purpose of the Children Act, 2001. It is important to note at this point that the relevant provisions of the Parole Act, 2019 were not commenced at the date of the appellant's sentence.

26.       It is submitted that in circumstances in which the sentencing judge fixed the appellant's earliest possible release date as the 24th January 2033, he deprived the appellant of his entitlement to apply for parole after the elapse of 12 years in accordance with s. 24 of the Parole Act, 2019. Which provides as follows:-

"(1) Subject to this section and section 6(2), the following persons shall be eligible for parole:

(a) a person serving a sentence of imprisonment for life who has served at least 12 years of that sentence;

(b) a person serving a sentence of imprisonment of a term equivalent to or longer than such term as is prescribed in regulations made by the Minister under subsection (3), who has served at least such portion of the sentence as may be prescribed by the Minister in accordance with that subsection."

27.      The appellant points out that while those provisions of the said Act were not yet commenced on the date of the appellant's sentence, they would have applied were it not for the sentence imposed by the sentencing judge on account of s. 24(2) of the Act which provides that:-

"(2) Subsection (1) shall apply to a person regardless of whether the sentence of imprisonment being served by the person was imposed prior to or after the commencement of this section."

28.      It is further pointed out that the sentencing judge was aware of these provisions and reference in this regard is made to remarks made by him during the sentencing hearing.

29.      It is submitted that in circumstances where the sentencing court specifically and exclusively retained to itself seisin to review the appellant's sentence such that he not be released until after the elapse of at least 13 years, the right of the appellant to apply for parole and the jurisdiction of the Parole Board to grant it after the statutory period of 12 years was effectively ousted.

30.      It is argued that the sentencing judge has effectively sentenced the appellant in a manner which has deprived him of an entitlement which he would have had were he an adult at the date of sentence and further that he has been sentenced to a life sentence subject to a minimum period of incarceration which is in fact greater than the minimum period of incarceration an adult person would be required to serve if subject to such a sentence. This, it is submitted, runs contrary to the scheme and purpose of the Children Act, 2001 and in particular s. 96(4) thereof which reads:-

"The penalty imposed on a child for an offence should be no greater than that which would be appropriate in the case of an adult who commits an offence of the same kind and may be less, where so provided for in this Part."

The Respondent

31.      The respondent points out that it was counsel on behalf of the appellant who alluded to the power of the sentencing court to incorporate a review mechanism into the sentence during the course of the initial sentence hearing on the 3rd April 2020.

32.      It is submitted that at no point during the sentence hearing was there any submission made to the court with regard to the provisions of the Parole Act 2019 and that these points ought to have been ventilated on behalf of the appellant in the lower court particularly as there was engagement and discussion with the sentencing judge on the various modes of disposal available to him.

33.      Attention is drawn to the interpretation section of the 2019 Act which sets out as follows:-

"(3) In this Act—

(a) a reference to a person serving a sentence of imprisonment shall be construed as including—

(i) a person upon whom a sentence of detention was imposed by a court when he or she was a child where he or she has been transferred to a prison to serve the remainder of the sentence in accordance with section 155 of the Act of 2001."

It is submitted that this section makes it clear that any period of detention can be included in the calculation of imprisonment.

34.      The respondent makes the observation that it appears that the appellant is of the view that a term of detention for life would have been preferable to the sentence actually imposed. It is submitted that this argument is fundamentally flawed. The respondent outlines that every effort was made to ensure that the appellant herein would be sentenced expediently and in advance of his 18th birthday. Attention is drawn to the fact that at the initial sentence hearing of the 3rd April the final peer reviewed autopsy report was not yet to hand.

35.      Ms Rowland SC, during the hearing of this appeal drew this Court's attention to the following portion of the Court of Criminal Appeal's decision in People (DPP) v DG [2005] IECCA 75:

"[...] However, in the Court's view the learned trial judge provided for this in determining that the sentence imposed should be reviewed by the Court in the year 2014, ten years after he had been taken into custody in connection with the offence. For young persons like the appellant who fall into the special category referred to above the provision for a later review of the sentence imposed may be appropriate when it is inappropriate for other categories of cases. Moreover, the imposition of a sentence, in this instance a life sentence, subject to a review by the Court, does not in any way impinge on the autonomous power of the Executive to exercise clemency or to provide for special or early release pursuant to statutory powers as and when the relevant authorities deem appropriate."

It is submitted that this excerpt makes clear that the appellant is entitled just as any other prisoner serving a life sentence to apply under the section for parole at the expiration of 12 years.

36.      It is also refuted that the sentence imposed by the sentencing judge was contrary to s. 96(4) of the Children Act, 2001. The appellant was not subjected to a mandatory term of life imprisonment but instead sentenced to a life term incorporating a review after 13 years. It is submitted therefore that the provisions of s. 96(4) were engaged as the appellant's sentence was no greater than that which would have been appropriate for an adult who committed the same offence. It is further submitted that it is evident that the sentencing judge was extremely mindful of the 2001 Act and all it entails.

Ground 2

The Appellant

37.      It is submitted that the sentence imposed on the appellant was disproportionate and excessive in light of the circumstances of the case and of the appellant and not in keeping with comparator cases in this area.

38.      Reliance is placed on the decision of the Court of Criminal Appeal in DG in which case the appellant was a 15-year-old boy who had killed a 14 year old boy by striking him repeatedly over the head with a hammer after luring him to a secluded area. The appellant pleaded not guilty to the offence and the trial judge took the view that there was no evidence of remorse; said view was endorsed on appeal. The appellant was sentenced to life imprisonment with a review date after 10 years. This sentence was upheld on appeal.

39.      It is submitted that the appellant in DG received a more lenient sentence than the appellant herein despite the presence of significant aggravating factors in that case including the premeditation involved and the attitude displayed by the appellant and an absence of the mitigation which is present here. It is accepted the appellant in DG was of a younger age, but it is submitted that this factor alone is insufficient to explain this disparity.

40.      Reliance is also placed on the more recent decision of this Court in People (DPP) v BH [2021] IECA 129 in which case the appellant was a 16-year-old boy who pleaded guilty to the murder of his 20-year-old associate. An argument had developed between the pair and on the day of the murder, the appellant had sought out the deceased and brought with him a knife. While the appellant in that case initially gave an untruthful account to gardaí he ultimately accepted his role in the killing. There was a Probation Report before the sentencing court which dealt with the appellant's dysfunctional background. His sentence of life imprisonment with a review date after 10 years was upheld on appeal.

41.      It is submitted that the appellant's case bears a number of similarities to that of the appellant in BH by way of both aggravating and mitigating factors but that the significant aggravating factor in BH of bringing a knife to a confrontation with the deceased is absent here. While it is accepted that the appellant herein did arm himself with a knife earlier in the evening, reliance is placed on the following comment of the sentencing judge:-

"He said he did not intend to kill Cameron Blair and it is submitted to the Court that he did not go out that night from his home with a knife or with the intention to do anything like that which I accept."

42.      It is submitted that the ultimate sentence imposed in BH was considerably more lenient than the sentence imposed in the present case despite the fact of the significant aggravating factor in that case as identified. Again, it is noted that that appellant in BH was a year younger, but it is submitted that same cannot justify the difference of three years

43.      Reference is made to the sentencing bands for manslaughter as set out by Charleton J in People (DPP) v Mahon [2019] 3 IR 291. While it is acknowledged that the offence at issue here is one of murder and not manslaughter it is said insofar as it is possible to draw any comparison, the facts herein might place the offence at issue here toward the lower end of the second category, being offences, which would attract headline sentences of between 10 and 15 years. Further reference is made to cases which resulted in actual sentences of between 7 and 8 years.

44.      It is submitted that the offence herein was without such aggravating factors as might in other circumstances justify a minimum period of incarceration of 13 years. Attention is drawn to the impulsivity, immaturity and serious lack of judgment by which the offence was characterised. It is submitted that these factors bring it into a lower category than that for which the sentence actually imposed would be appropriate.

45.      The appellant also makes references to the respective cases of Boy A and Boy B who were sentenced to periods of life imprisonment with a review after 12 years and a determinate sentence of 15 years with review following 8 for the murder of Ana Kriegel. It is submitted that that offence must be considered very significantly more egregious than those the subject matter of this appeal.

The Respondent

46.      It is submitted that the sentence imposed was appropriate in all the circumstances and in line with sentence imposed on other juvenile offenders convicted of murder.

47.      The respondent highlights various aspects of the evidence adduced at the sentencing hearing including that the appellant armed himself with a very large knife an hour before he inflicted the fatal wound, that he ran from the scene and dumped the knife and gloves he had been wearing and initially denied responsibility for the killing and then later tried to suggest that the stabbing occurred in the course of a fight. The compelling evidence of the deceased's family members: his mother, Kathy, father, Noel and brother, Alan, and the devastation which the offence has brought upon their family is also highlighted.

48.      It is submitted that in light of all of the evidence adduced at the sentence hearing including the plea in mitigation, the sentence imposed by the sentencing judge was proportionate and appropriate.

49.      It is further submitted that contrary to what the appellant asserts, the sentence imposed in this case accords with sentences imposed in other similar cases. The respondent cites the case of People (DPP) v Callum Coakley which concerned a juvenile accused who was also sentenced to detention for life with a review after a period of 13 years. The case of Boy A is also cited, the juvenile accused in that case was sentenced to detention for life with a review after 12 years.

50.      The respondent says that the case of DG can be distinguished from the present case on the ground that the accused in that case was held by the Court of Criminal Appeal to have "dysfunctional traits to his personality" and that that factor loomed large in the court's assessment of the rehabilitative component of the sentence. The following comments of the Court of Criminal Appeal are highlighted:-

"Whatever about his psychiatric health he clearly had dysfunctional traits to his personality. A person of that age is by definition immature, being a significant number of years away from adulthood. It may be the case, and certainly one would hope it would be the case, that with further education, counselling and specialist assistance, that he will mature or evolve over time into a man with full understanding of and insight into the gravity of the offence he committed and in particular, one who will have a full understanding and respect for moral and legal norms which law-abiding citizens observe in their relationships with others."

51.      It is submitted that these comments stand in stark contrast to the determination of the sentencing judge in the present case that the appellant herein "fully understood the nature and likely consequences of what he was doing when he stabbed Cameron Blair."

52.      The respondent says that BH can also be distinguished as the accused in that case made lengthy admissions in interview and had attended at the garda station on the evening of the incident to hand himself in. This is contrasted with the fact that the appellant herein discarded the murder weapon and his gloves in the aftermath of the offence, provided gardaí with different clothing to that he was wearing on the night in question and initially denied responsibility for the killing when first engaging with gardaí.

53.      The respondent asks this Court to have regard to the ages of the juvenile accused in the comparator cases relied upon by the appellant.

54.      Reliance is placed on the following remarks of this Court in BH in relation to comparator cases:-

"While this Court accepts that the D.G. case is a relevant comparator, and that consistency of sentence is of course a desirable objective, the Court is of the view that the outcome of one comparator case cannot necessarily be decisive in a later case. The Court is of the view that the sentence imposed in the present case, taking account of all the material factors, was within the range of sentence available to the sentencing judge, given the serious offending involved. The fact that a different Court might have imposed a slightly earlier review date does not provide a basis for intervention by this Court. Indeed, even if it were the case that this Court or individual members might have considered a different sentence, that would still not lead this Court to intervene. It would be necessary for the sentence imposed to fall outside the available range, which is not the case here."

Ground 3

The Appellant

55.      It is submitted that the sentencing judge failed to attach any of any sufficient weight to the various mitigating factors advanced on behalf of the appellant. This can constitute and error in principle as per People (DPP) v O'Sullivan (Unreported, Court of Criminal Appeal, 22nd March 2002).

56.      It is submitted that amongst the various mitigating factors present in the appellant's case were the following;

  • His early guilty plea
  • His acceptance of responsibility during interview
  • His expressions of genuine remorse
  • His dysfunctional background and family life
  • His youth and immaturity
  • His lack of previous convictions.

57.      While it is accepted in relation to the second factor that the appellant's account developed over the course of his interviews, it is submitted that the appellant did ultimately accept responsibility for the murder and additionally expressed remorse for what he had done. In connection with this, it is submitted that the sentencing judge appeared to have regard to the interviews of the appellant only insofar as they contained untruths or prevarications.

58.      In relation to the appellant's youth and maturity, it is complained that the sentencing judge failed to sufficiently consider same as an independent item of mitigation and that he sought to emphasise that the appellant was approaching his majority and drew a distinction in this regard between those in their early or mid-teens and those in their late teens. It is submitted that the judge failed to have sufficient regard to the specific issue of the appellant's age and level of subjective maturity.

The Respondent

59.      It is submitted that it is abundantly clear from the sentencing judge's ruling that significant weight was placed on the mitigation in the case with explicit reference having been made to each and every relevant factor.

60.      The contention that the sentencing judge only had regard to the interviews insofar as they contained untruths or prevarications is refuted, it is pointed out that the sentencing judge referenced the appellant's acceptance that he inflicted the fatal wound.

61.      It is noted that the sentencing judge incorporated the review element into the sentence due to one of the main mitigating features in the case: the appellant's youth.

62.      It is submitted that the emphasis placed on the appellant's youth by the sentencing judge and his repeated references to the Children Act, 2001 demonstrate that the sentencing judge viewed the appellant's age as one of the chief mitigating features in the case and structured the sentence accordingly to reflect this important factor.

Discussion

63.      Murder is one of the most serious offences on our statute books. In cases of an adult, the penalty is that of a mandatory sentence of life imprisonment. This is ameliorated in cases of a juvenile, vesting a discretion in a court to impose a determinate or indeterminate sentence. In other words, a period of detention which a court considers appropriate in the circumstances.

64.      The appellant in the present case was aged 17 years and 8 months when he committed this terrible offence, extinguishing the life of a decent and upstanding young man. A young man who did nothing but seek to restore peace to a situation which was not of his making. The appellant's actions deprived this young man of his life, and took him away from his loving parents, family and friends. It is profoundly sad. The appellant's conduct in arming himself, displaying the knife and tapping it against his leg while laughing and then delivering the fatal blow was shocking and deliberate. His actions were cowardly and callous. While the appellant appears to have formed the intention proximate to the murder, his actions prior aggravate the offending.

65.      The casual, but deliberate use of knives requires deterrence. People are entitled to socialise without the fear that an individual may decide to have recourse to a deadly weapon. The fact that this appellant appeared to have no hesitation in displaying the knife as he did by tapping it against his leg prior to the vicious attack is most concerning.

Grounds 2 and 3

66.      We will address grounds 2 and 3 first. In essence it is said that the sentence imposed was excessive and that the judge failed to have any or any sufficient regard to the mitigating factors.

67.      It is argued that the sentence is disproportionate and excessive in the circumstances and the appellant draws upon various cases in support of this contention. It is said that this offence is without certain aggravating factors which might in different circumstances justify a minimum period of incarceration of 13 years, including DG and BH. However,  it must be recalled that every case is fact dependent and aside from the different facts, in both cases to which the appellant refers, the appellant was not proximate to majority, as in the present case. In DG, this Court specifically considered the immaturity of the appellant in terms of his age. The factual issues in BH were quite different to the present case.

68.      What is of importance in each case is a careful assessment of the facts in order to determine the culpability of the young offender. It is readily apparent that the judge in the present case considered the matter with conspicuous care and diligence, taking account of all material matters. There must be an error of principle before this Court will intervene; that may occur if the sentence imposed is outside the range of sentence available to a sentencing judge and as will be seen hereunder, we do not find that the sentence was excessive or disproportionate in the present circumstances.

69.      It cannot be gainsaid that the judge's approach to sentence was considered, careful and measured. Before setting out the facts, he considered the law in respect of sentencing juveniles for the offence of murder. The judge kept to the forefront of his mind that the appellant was a juvenile when he committed the offence and a juvenile at the time of sentence. He assessed his age and maturity; he carefully considered the report prepared by the Probation Service.

70.      The appellant was 4 months shy of attaining his majority when he committed this offence and the judge properly recognised that he was not a very young child or at the commencement of adolescence. He was at the other end of that spectrum. The appellant's culpability had to be assessed in terms of his age and level of maturity and the judge was careful to do so.

71.      The fact that the appellant was a minor when he committed the offence does not detract from the gravity of the offending. What it does is to require a judge to look to an offender's culpability in terms of his age and maturity. Had the appellant been sentenced a few weeks later, he would have been subject to the mandatory sentence of life imprisonment. As he was under 18 years, the judge had a discretion as to the appropriate sentence and determined on detention for life but with a review after 13 years.

We are not persuaded in light of the aggravating factors and the appellant's age and maturity, that the judge erred in his approach to sentence or indeed on the ultimate sentence imposed.

72.      Insofar as the appellant contends that the judge failed to adequately consider the mitigating factors, this is not borne out by a perusal of the transcript. The judge, at some length, considered the mitigating factors, including: the appellant's plea of guilty, his sorrow and remorse, the difficulty for a young person serving a lengthy sentence, his interaction with the Gardai in interview, and his personal circumstances. In light of his youth, the judge considered a review appropriate. It is clear that the judge considered the provisions and the spirit of the Children Act, 2001, in arriving at the ultimate sentence, in particular he had regard to the rehabilitation of the appellant and his integration into society on the conclusion of his incarceration. The appellant's response to the offending in the immediate aftermath and his personal circumstances rendered it necessary that he be carefully monitored and supervised both before and after his release to the community. The judge properly considered these factors and directed the preparation of probation reports at various intervals to assist in this endeavour.

73.      Again, we find no error in the judge's approach.

Ground 1

74.      Turning to ground 1 where it is said that the judge deprived the appellant of his rights pursuant to s.24 of the Parole Act, 2019. A person serving a sentence of life imprisonment is eligible for parole after serving at least 12 years of the life sentence.

75.      It is argued that by fixing the appellant's potential release date after the minimum expiration of 13 years, he was denied his right to apply for parole after a period in excess of 12 years had elapsed.

76.      Taking the appellant's argument to its logical conclusion means that a sentence of detention for life without any review was the better course. It can immediately be seen that the relevant provision only states that a qualifying individual shall be eligible for parole. That does not mean that the person will actually be granted parole. Moreover, if a sentence of detention for life were imposed, this in effect would mean that the appellant, as a juvenile would have been sentenced to the same sentence as an adult offender, being the mandatory life sentence.

77.      The point of a review of sentence as imposed by the sentencing judge is to enable a court to oversee the appellant's detention and to have particular regard for his rehabilitation and reintegration into society. It enables a court to assess his progress and to take the decision at the relevant time, whether or not it is appropriate to release the offender into the community with whatever relevant safeguards considered suitable in the circumstances. It is noteworthy that the appellant sought a review of sentence.

78.      In any event, it is clear from the terms of s.24 of the 2019 Act that in fact the appellant is not denied his right to apply for parole. The relevant provisions of s.24 are as follows:-

 "24. (1)Subject to this section and section 6(2), the following persons shall be eligible for parole;

(a) a person serving a sentence of imprisonment for life who has served at least 12 years of that sentence;

(b) [  ]

(2) Subsection (1) shall apply to a person regardless of whether the sentence of imprisonment being served by the person was imposed prior to or after the commencement of this section."

79.      The Director refers to the interpretation section of the Act; section 2 and in particular to subsection 3 which provides:-

"(3) In this Act-

(a) a reference to a person serving a sentence of imprisonment shall be construed as including both-

(i)           a person upon whom a sentence of detention was imposed by a court when he or she was a child where he or she has been transferred to a prison to serve the remainder of the sentence in accordance with section 155 of the Act of 2001, and

(ii)         [...]

and

(b) for the purpose of calculating the length of a sentence of imprisonment, or the portion of such a sentence served-

(i)           any period of detention served in a children detention school by the person where he or she has been transferred to a prison to serve the remainder of the sentence in accordance with section 155 of the Act of 2001,

(ii)         [...]

(iii)        [...]

shall be included."

80.      It is quite clear therefore, that the appellant's eligibility for parole after a period in excess of 12 years has been served has not been ousted by the judge applying a review date after a period of 13 years. However, it is also the position that the Parole Board may possibly be influenced by the fact that the appellant has a review date before the court proximate to a Parole Board hearing, but this does not deprive him of his rights under the 2019 Act.

Decision

81.      We are not persuaded that the judge fell into error and accordingly the appeal against sentence is dismissed.


Result:     Dismiss

 

 

 

 

 

 

 

 

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010