While a life sentence is mandatory for adults found guilty of murder, the same is not the case for those who were children, or under the age of 18 years, at the time of the crime.
In Ireland, as in most European jurisdictions, courts seek to avoid jailing children. However, a judge can order a child found guilty of murder to be detained for life if they feel it is justified in the circumstances.
In 2005, Mr Justice Barry White sentenced a teenage boy to life for murder, but ordered that the decision be brought before him again in a decade for review.
An appeal by Darren Goodwin, Graigue, Mountmellick, Co Laois, who was 15 when he murdered Darragh Conboy (14) in his home town, against the severity of that sentence failed, in part because of the teenager’s disposition at the time of conviction, but also because of the callous nature of what he had done.
It is mandatory for trial judges to seek and consider a probation report prior to the sentencing of a child.
The reports cover areas such as the level of insight the child has into the offence they committed, whether they accept their conviction, and whether they are displaying remorse for what they have done.
If a life sentence is given to a child, they serve their detention period in Oberstown detention centre until they are past the age of 18, after which they are moved to an adult prison.
Average sentence
Decisions on release then become a matter for the minister for justice, who receives recommendations from the prison parole board. Life sentences currently average around 18 years, and are longer than they were some years ago.
If a child is ordered to be detained for a set period, then the judge seeks to arrive at a balance between conflicting objectives when deciding on duration.
On the one hand he must take into account the seriousness of the offence, the issue of deterrence, and the need to show society’s abhorrence for what has been done.
On the other hand he must bear in mind the age of the offender, the issue of rehabilitation, and the effect that imprisonment has in terms of institutionalising a person who will be spending key development years in detention.
The age of the child “front loads” the issue of institutionalisation, as a sentence of any significant duration will see the child kept incarcerated into adulthood.
The court has to bear in mind the aspiration that at some stage the child will live as an independent adult and lead as fruitful a life as is possible in the circumstances.
A judge is not allowed penalise an accused for having pleaded not guilty. However, pleading not guilty does mean that mitigation of sentence for having pleaded guilty is no longer an issue.
In England, the judiciary and the home secretary had a long tussle over the sentence that should be served by Robert Thompson and Jon Venables, who were both 10 years old when they killed two-year-old James Bulger in Liverpool in 1993.
The trial judge sentenced the boys to detention “at Her Majesty’s pleasure” but recommended to the home secretary that this be at least eight years. This was later increased to 10 years by the Lord Chief Justice. The home secretary eventually increased the recommendation to at least 15 years.
The European Court of Human Rights eventually criticised the UK for the way in which the home secretary came to his decision in the matter. The system in the UK has since changed.
The sentencing council for England and Wales produces guidelines on sentencing for the judiciary, and also aims to increase public understanding of sentencing.
Its guidelines for the sentencing of children and young people say that while the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to being “offence focused”.
For a child or young person the sentence should focus on rehabilitation where possible. A court should also consider the effect the sentence is likely to have on the child or young person, both positive and negative, as well as any underlying factors contributing to the offending behaviour, the guidelines say.
“Domestic and international laws dictate that a custodial sentence should always be a measure of last resort for children and young people and statute provides that a custodial sentence may only be imposed when the offence is so serious that no other sanction is appropriate.”
“It’s a difficult balancing act,” said one Irish barrister who practises criminal law and did not wish to be named.
“It’s not a popularity contest and judges should not be swayed by public opinion. If everyone is slightly unhappy [with a decision] that might mean that they have found the middle ground in terms of what everyone can tolerate.”
