[2023]_IECA_305 — [2023]_IECA_305 — Ireland courts

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 2

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 3

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 4

— 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. 5

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 6

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. 7

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 8

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:- 9

“(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 10

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. 11

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 12

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. 13

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 14

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 15

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 16

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). 17

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. 18

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 19

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 20

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 21

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 22

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- 23

(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. 24