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Cite as: [2005] IECCA 75

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Judgment Title: D.P.P.-v- D.G.

Neutral Citation: [2005] IE CCA 75

Court of Criminal Appeal Record Number: 198/04

Date of Delivery: 27/05/2005

Court: Court of Criminal Appeal

Composition of Court: Murray C.J.
O'Sullivan J.
O'Leary J.

Judgment by: Murray C.J.

Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
Murray C.J.	Refuse appeal

Outcome: Refuse Appeal

THE COURT OF CRIMINAL APPEAL

Murray C.J.
O’Sullivan J.
O’Leary J.

198/04
BETWEEN

THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

D.G.

APPELLANT

JUDGMENT of the Court delivered the 27th day of May, 2005 by Murray C.J.

On the 19th day of July, 2004 the appellant, after trial by jury before the Central Criminal Court, was convicted of the offence of murder, contrary to common law as provided by s. 4 of the Criminal Justice Act, 1964. The appellant was remanded in custody pending sentence. On the 15th day of October, 2004 the appellant was sentenced to be detained for life, the sentence to commence from the 12th day of November, 2003 and the Court further ordered that the matter be listed before the Central Criminal Court in July 2014 for the purpose of reviewing the sentence imposed.

Summary factual background
At 11:10 p.m. on the 11th day of November, 2003 the body of the victim of this murder, Darragh Conroy, was found on the banks of the river Owness adjacent to Mountmellick, Co. Laois by the Gardaí. The deceased was a boy aged 14 years. The appellant, himself aged 15 years at the time, had lured Darragh Conroy down to the banks of the river and struck him over the head with a hammer approximately seven times. According to the report of the Deputy State Pathologist the deceased would appear to have been struck a first blow when he was upright, or partly so, and this caused him to collapse to the ground in probably an unconscious condition. There then followed five separate blows inflicted in rapid succession when the deceased was lying on the ground. He had been struck with considerable force with the hammer involving extensive damage to the skull and underlying brain injury. According to the pathologist the deceased would have been immediately unconscious and would have died rapidly.

There was no apparent motive and certainly the appellant never claimed he was motivated by any animosity towards the deceased victim as such and at one time had referred to the deceased boy as being “the wrong person, in the wrong place, at the wrong time”.

The facts relating to the offence are not in issue. In the course of sentencing the learned trial Judge stated

“Mr. [G.] you killed an innocent 14 year old in a premeditated brutal, vicious and callous manner. Not alone did you deprive Darragh Conroy of his life at a time when in the normal of course of events he would have had the entire of his future to look forward to, but you also devastated the life of his mother, who will grieve and mourn to her dying day for her only child.

You have brought shame and disgrace upon your family. Wrong and all as it maybe, but having regard to human nature they will find themselves branded for the rest of their lives as the parents of a murderer and you have ruined your own life.

You pleaded not guilty to the offence. That was your right and I do not hold that against you. It would be entirely wrong of me to hold that against you. But by contesting your trial you gave me the opportunity to observe your attitude and demeanour throughout the trial. To say the least, your attitude was one of total indifference to what was going on about you and more probably was one of absolute scorn and contempt for the trial process in particular and for society in general.

In the general run of matters or as a general rule where a person either pleads guilty to murder or is found guilty of murder by a jury a judge must impose a mandatory life sentence because the Oireachtas have determined the appropriate sentence for murder in one of life imprisonment.

However, having regard to your age I have a discretion on the question of the sentence. At this stage I must, in the first instance, consider what is the appropriate sentence for your offence. What is the appropriate sentence for a 15 year old who kills a 14 year old.

Having regard to the fact that this was a premeditated murder and having regard to the viciousness with which you beat to death an unarmed innocent young man without any form of provocation or justification, and there could not be any form of justification for your conduct, I consider that the appropriate sentence for an offence and for this particular offence in general terms is that of life.

I must look, Mr. [G.], and see what mitigating circumstances, if any, arise in relation to you. Apart from your age, I cannot see any. It has been urged upon me that you are remorseful for what has happened. I would have thought that if you were remorseful for your offence that remorse would have manifested itself before the trial commenced. Having read the various reports that are before me I find it hard to believe that any expression of remorse by you is real or genuine.

From the reports that are before me it is clear that you are an intelligent young man. It is clear that you harbour feelings of anger and resentment, in particular towards your father, and it is clear from the reports that are before me that you are a danger to society and you are certainly a danger to your father. In particular I have before me the report of Mr. Andrew Conway, senior clinical psychologist, who has assessed you since the date of your offence. In one of the paragraphs of his report it reads as follows;

“In discussing the incident for which he has now been convicted [D.] stated that Darragh Conroy was “in the wrong place at the wrong time”. In response to a question as to what would have happened if Darragh Conroy had not been there at that time, [D.] stated that he would have killed his father instead. [D.] was of the opinion that if he hadn’t killed Darragh Conroy he would have killed his father and so would have ended up in prison either way. Asked if he could click his fingers and swop Darragh’s life for his fathers would he, and [D.] stated he would”. In conclusion Mr. Conway states “on this occasion [D.] presented as a young man who is now at the initial stages of coming to terms with the consequences of his actions which resulted in the death of Darragh Conroy. [D.]’s deep seated feelings of resentment towards his father remain and it is felt that until [D.] begins to address these feelings that he will continue to constitute a significant risk to his father’s well being in the future. It is also felt the [D.]’s positive feelings towards engaging with a psychologist on an ongoing basis should be encouraged and provided for within the confines of whatever or wherever he completes his sentence”.

The foregoing summarises the essential elements arising from the circumstances of this crime which the trial judge took into account in determining the sentence to be imposed.

Submissions
At the outset counsel for the appellant pointed out that there were particular factors in this case which made it not only in the interest of the appellant but in the public interest that there should be a full trial of the issues leading to verdict and that the plea of not guilty by the appellant should not be held against him. There were also mitigating factors to be found in court documents before the trial court but not admitted in evidence, which should be taken into account.

At this point the Court considers it sufficient to say that the learned trial judge expressly stated that he was not holding against the appellant the fact that he pleaded not guilty, and it is furthermore clear that he took into sufficient account all relevant mitigating factors.

However, the main submission by counsel for the appellant was that the appellant was a very young person of 15 years of age at the time when the offence was committed and in principle the trial judge in imposing sentence should have left him with, as it was put, some light at the end of the tunnel so that he could identify some point at which he would be released. This would give him hope for the future and encourage his rehabilitation. This can only best be met by the imposition of a determinate sentence for a specified number of years even if, having regard to the seriousness of the offence, it was a very long term.

Counsel for the Director of Public Prosecutions submitted that the imposition of a sentence subject to the review of the balance of that sentence at some specified date in the future is not good sentencing policy and is not one which in principle should be applied by the Courts.

Decision
The Director of Public Prosecutions and counsel for the appellant accept that the sentence imposed by the learned High Court Judge was one which in law he was entitled to impose (and see State (O) –v- O’Brien [1973] IR 50, D.P.P. –v- V.W. (unreported C.C.A. 13th July, 1998 and D.P.P. –v- A.S. (unreported C.C.A. 23rd March, 1998).

Each however, from their different perspectives, submit that he ought not to have exercised his discretion in the manner in which he did but that a custodial sentence for a specified number of years was, in principle, more appropriate to the case. It was not in issue that given the gravity and circumstances of the offence that any such sentence would necessarily be for a long number of years and without provision for a review by the Court of trial. Such a sentencing approach would no doubt be convenient and appropriate from the prosecution point of view in that the prosecution proceedings would be finally determined and terminated leaving the appellant to serve the sentence imposed subject to any remission to which he may become entitled or any executive clemency which might be exercised by the Government, and in particular by the Minister for Justice, Equality & Law Reform pursuant to his statutory powers. As already indicated, from the appellant’s point of view it was submitted that it would provide him with “a light at the end of the tunnel”.

The Court does not accept that the learned trial judge was wrong in principle in the sentence in which he imposed. This was an unprovoked murder of a 14 year old boy in a cold-hearted and callous manner. The trial judge found that the appellant had not shown any remorse for his actions. He was found not to be suffering from any formal psychiatric illness and there was evidence before the Court that he remained a potential danger to others. The learned trial judge also had before him, when sentencing, evidence of the appellant’s severely dysfunctional relationship with his father and, to say the least, the very negative attitude which he had towards him.

In particular the trial judge concluded, which he was clearly entitled to do on the evidence then before him, that the appellant was a continuing danger to society and in particular a danger to his father.

On the other hand the trial judge had to take into account, as he clearly did, that the appellant himself was 15 years of age when he committed the offence. Whatever about his psychiatric health he clearly has dysfunctional traits to his personality. A person of that age is by definition immature, being a significant number of years 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 who will have a 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. In principle a sentence is not imposed with regard only to the nature of the offence but is imposed on the particular person who committed such an offence having regard to its gravity (which of course includes the consequences for the victim or victims) and the particular circumstances of the individual who committed the offence. In the case of a particularly young offender, in this case one of 15 years of age at the time, who has committed a very serious crime which would normally warrant a severe and long sentence, perhaps, as in this case, life imprisonment, the Court must have particular regard to the prospect of rehabilitation. Very young offenders who commit grave offences of this nature may, in the circumstances indicated above, mature or develop into very different personalities as they reach adulthood and grow older, than that which they had at the time when the offence was committed. Accordingly when the circumstances and the seriousness of the crime indicate the imposition of a very long sentence this is a factor which must be taken into account. Invariably, each case will depend on its own particular circumstances and especially the age of the offender at the time when the crime was committed.

Suffice it to say for present purposes that when a Court imposes a custodial sentence on an offender for a grievous offence such a sentence may reflect a punitive element, a deterrent element as well as the need to protect society and individuals. It must also take into account in the length or form of the sentence the need to facilitate, so far as this can reasonably be done, the rehabilitation of the offender so that he may at the conclusion of his sentence return to society as a law-abiding person. That is in the public interest.

Children or very young offenders convicted of serious offences which would normally involve lengthy custodial sentences must be considered as falling into a special category insofar as there is a special onus on the Court to have regard to their rehabilitation and welfare for the future because of their young age at the time and the reasons outlined above. In one sense counsel for the appellant is correct that there should be “a light at the end of the tunnel” for the appellant. 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.

The Court is satisfied having regard to the callous and unprovoked nature of the murder, and the disposition of the appellant as found at the time of the sentencing, that the trial judge was correct in imposing a life sentence subject to review by the Court in the year 2014. The review means that the Court retains seisin of the case as regards sentencing so as to enable it to review the length of the sentence having regard to the matters, in particular rehabilitation, referred to in this judgment.

In the circumstances the Court is satisfied that, in taking all material factors into account, the learned trial judge exercised his discretion correctly. For these reasons the application is refused.