Thursday 21 November 2019

Shane Phelan: 'Judge aims to strike a difficult balance by ordering sentence reviews for teen killers'

 

The Central Criminal Court in Dublin. Photo: PA
The Central Criminal Court in Dublin. Photo: PA
Shane Phelan

Shane Phelan

During a lengthy and nuanced sentencing speech, Mr Justice Paul McDermott spoke of the difficult balance he had to strike in imposing terms of detention on Boy A and Boy B for the murder of Ana Kriegel.

On the one hand he had to be mindful of the young age of the offenders, who are now both 15, and their prospects for rehabilitation.

On the other he said he had to give proper weight and importance to the fact a child's life had been taken in a most brutal fashion.

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Over the course of an hour and 40 minutes, Mr Justice McDermott went into great detail explaining his decision. Boy A received a life sentence for Ana's murder, which will be reviewed after 12 years, at which point he can be released or kept in custody. He also received an eight-year concurrent sentence for aggravated sexual assault.

Boy B got 15 years detention for murder, to be reviewed after eight years.

What shone through from the judge's address is that the length of time the boys ultimately end up being detained for will very much depend on their attitude and whether they face up to their crimes. The judge explained there may be capacity for improvement, development or change by the boys, despite the awful nature of the offences committed.

Ordering reviews after specified periods was the court's way of dealing with the potential for young offenders to change.

Mr Justice McDermott explained that for adult murder convictions, an automatic life sentence applies. However, there is a different sentencing regime for children who murder and the courts have discretion on the length of detention.

The judge said little guidance was available to him from previous court decisions, as there had been so few cases of this type.

But he explained children must be treated differently to adults and that the age of the defendant is a substantial mitigating factor.

There was a bias, he said, against custodial sentences in the 2001 Children Act, and these should only be imposed as a last resort and be consistent with the rehabilitation and the best interests of the offender.

He also referred to a ruling by former Chief Justice John Murray, which outlined issues to be considered.

This said that in a case where a young offender commits a very serious crime, the court must have particular regard to the prospect of rehabilitation.

Mr Justice Murray said that where the offence is egregious, the sentence may reflect a punitive element, a deterrent element, as well as the need to protect society and individuals. But he also said young offenders who commit grave offences may mature and develop into very different personalities as they reach adulthood.

While taking the Murray judgment on board, Mr Justice McDermott said the court could not lose sight of the magnitude of the offences. "It must give proper weight and importance to the fact a child's life has been taken," he said.

The judge said there was nothing to suggest either of the boys suffered from a mental disorder and no issues were raised as to their competence to stand trial.

There was nothing in their previous histories to suggest they might be capable of these crimes.

Balanced against the mitigating factor of their young age were a whole host of aggravating factors.

While Boy A had belatedly admitted some level of acceptance he was responsible, he continued to deny certain elements, including that he sexually assaulted Ana.

Boy B does not accept any responsibility for the murder at all. Although culpable, there was no evidence he engaged in the assault on Ana and this was reflected in his sentence.

The judge said that how both boys face up to their culpability while in custody will be a factor in determining how long they will eventually end up being detained. A review of Boy A's sentence will take place in January 2029, while Boy B's term will be reviewed in January 2026.

Irish Independent

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