DPP v M. S. (A Minor)
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 29 July 2020 |
| Neutral Citation | [2020] IECA 178 |
| Docket Number | [260/19] |
| Court | Court of Appeal (Ireland) |
| Date | 29 July 2020 |
[2020] IECA 178
The President
McCarthy J.
Kennedy J.
[260/19]
THE COURT OF APPEAL
Sentencing – Attempted murder – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient
Facts: The appellant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, seeking to review a sentence on grounds of undue leniency. The sentence sought to be reviewed was one imposed on 4th November 2019. The sentence was one of 11 years’ detention to date from 26th December 2017, when the appellant was taken into custody, with a review of that sentence to commence on 1st January 2023. The sentence was imposed on foot of a plea of guilty to the offence of attempted murder. The Director said that she took no issue with the identification of a headline or starting sentence of the range of 16 to 19 years, while observing that a starting or headline sentence of life could well have been taken. The Director said that she acknowledged at the outset, there would have to be a significant reduction or discount to take account of the mitigating factors present. She said that full, and indeed, very generous allowance was given for those factors that were present by the reduction to a sentence of 11 years’ detention. However, she said that any reduction beyond that was certainly not justified. By way of emphasis, counsel on her behalf said that the discount of the sentence to 11 years was right at the outer limit and that any further reduction, even by a further month, would be impermissible, would give rise to an error in principle and would give rise to a sentence which should not be permitted to stand. The Director said that she recognised that had an 11-year sentence simpliciter been imposed, that the expectation would be that the respondent would earn remission, and she calculated that in that event, the respondent would actually spend eight years and three months in custody before his release into the community. The Director repeated her observation that such an outcome was at the outer limits of leniency which would be expected in this case.
Held by the Court that the sentence was simply inadequate, and while obviously the product of great care and attention, did not meet adequately the enormity of the offending behaviour. In a situation where the Court would be readdressing the question of sentence and would be required to factor into the sentence that it imposed those factors to which it attached significance, it did not think it was appropriate to expand at any length upon its reasons for coming to the view that it had. In any event, the Court thought those reasons would, in truth, be self-evident. The Court noted that a crime of attempted murder is, by definition, an offence of extreme seriousness and that there can be a conviction for attempted murder only when it is established that the offender acted with an intention to kill, an intention that is often not established where the offence is one of murder. The Court held that, in this case, the element of planning and premeditation meant that even as attempted murders go, the offence had to be seen as being at the high end of the spectrum. The Court, having concluded that the sentence imposed was unduly lenient and that the Director had met the obligation which fell on her to so establish, invited the parties to liaise with each other with a view to proceeding to the resentencing phase.
The Court held that a review offered the best prospects of a managed, supervised and guided reintroduction to society. The Court held that there should be provision for a review of the sentence of 11 years imprisonment on 1st January 2025.
Appeal allowed.
On 2nd July 2020, this Court delivered its judgment on the application by the DPP seeking to review the sentence that was imposed in this case on grounds of undue leniency. For the reasons set out therein, we concluded that the sentence was indeed unduly lenient. We took the view that the sentence imposed, which, it will be recalled, was one of 11 years’ imprisonment, but with provision for a review after the respondent had spent some five years in custody, failed to reflect the gravity of the offending that was in issue.
By definition, any offence of attempted murder is a really serious offence, involving, as it must, an intention to kill, an intention which is often not proved in cases of murder.
However, even in terms...
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