About this case:

• Citation:
  [2025] IESC 11
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Iseult O'Malley

Delivering judgment for the Supreme Court, Ms Justice Iseult O’Malley determined: “A sentencing court does not have jurisdiction to reserve for itself a power to review a sentence. The power under the Children Act 1908 to review the detention of a child convicted of murder no longer exists.”

Background

In January 2021, the appellant was just 14 years old when he murdered mother of two, Ms Urantsetseg Tserendorj, by slashing her neck having failed to obtain money when he attempted to rob her. The appellant committed two other offences that same evening involving threatening women with a knife.

The appellant was convicted of murder by a jury on 11 November 2022.

Sentencing

At sentencing, the judge indicated that his only option was to impose a life sentence, expressing concerns about adopting a review mechanism in light of inter alia questions about the lawfulness of same as a result of People (DPP) v Finn [2001] 2 I.R. 25 and where the court in People (DPP) v. A.S. [2017] IECA 310 had made it clear that on review, the sentencing court could not suspend the balance of the sentence, leaving only unconditional release or continued detention as options.

The judge was not satisfied that a possible source of jurisdiction arose from State (O) v O’Brien [1973] I.R. 50 as same related to the provisions of the Children Act 1908, which had been repealed.

The judge deferred his final decision pending enquiries as to whether a legislative solution was under consideration, and on 16 February 2023, the Minister for Justice stated that the Children Act 2001 would be amended to ensure that there were sufficient alternative sentencing options to fully and partially suspended sentences.

The trial judge was satisfied that an appropriate statutory provision would be in place by the date proposed for review, and he proceed to sentence the appellant to life in detention with a review after 13 years.

The Court of Appeal

The appellant unsuccessfully appealed his conviction and proceeded to appeal the severity of his sentence, arguing that same breached inter alia Article 42A of the Constitution which promotes the “best interests of the child” in court proceedings, Article 13.6° of the Constitution which confers the right of pardon and the power to commute or remit punishment on the President, and breached the UN Convention on the Rights of the Child.

The Court of Appeal was satisfied that the imposition of a life sentence with review did not impinge on the executive’s power of clemency or to provide for special or early release, and that such a sentence was appropriate in the case before it.

The appellant appealed to the Supreme Court. The central questions for the Court where whether a sentencing court could reserve to itself a future power to modify a sentence by way of a review procedure, whether a sentencing court could suspend or part-suspend a custodial sentence imposed on a child, and whether a life sentence could be imposed on a child.

The Supreme Court

As to the review procedure, Ms Justice O’Malley noted that it is the task of a sentencing judge to impose a sentence, and in principle the judge is functus officio when that has been done and so a sentence “cannot be altered thereafter unless it is either replaced by an appellate court or is commuted or remitted by the executive”.

Pointing out that the jurisdiction of the court to review the detention of a child under the 1908 Act no longer exists, the judge continued:

On that basis, the court was satisfied that the trial judge did not have a power to order a review date.

Turning to the issue of whether suspended sentences could be lawfully in relation to detention, Ms Justice O’Malley confirmed, having regard to inter alia the “general powers” of the sentencing court  and the express powers of the Court of Appeal pursuant to s.3 of the Criminal Procedure Act 1993 (as amended) to deal with persons who have “aged out” during the court process, that there was nothing to prevent the sentencing court from suspending part of the period composed of imprisonment in accordance with s.99 of the Criminal Justice Act 2006.

As to the propriety of imposing a life sentence on a child, the court considered that having regard to the protected status of children, “a life sentence should be imposed on a child only in exceptional cases where the evidence shows that the child’s intentions and actions can fairly be equated with those of an adult”.

Ms Justice O’Malley explained that evidence of premeditation, planned efforts to conceal guilt, intention luring or exploitation of the victim, or an intention to inflict sexual violence or brutal physical violence could demonstrate such “adult levels” of planning and foresight as to consequences, to be contrasted with evidence demonstrating that death was caused by “an impulsive, angry lashing out by a child”.

The judge pointed out that while offenders subject to a life sentence have potential recourse after 12 years to the processes of the Parole Act 2019, the threshold was the same for those who committed an offence in childhood as for adult offenders and so sufficient recognition was not given to the status of childhood and to the principles in respect of sentencing children.

In this regard, the Supreme Court emphasised that this aspect “should be the subject of urgent reconsideration by the legislature”.

The court expressed difficulty with the correctness of suspend a life sentence either in whole or in part where this did not appear to be contemplated by s.99 of the 2006 Act which requires consecutive sentences to be imposed where a person reoffends while subject to a suspended sentence.

Ms Justice O’Malley concluded that other than in exceptional cases which merit a life sentence, the most appropriate form of sentence for a child convicted of murder is a determinate one with a part-suspended element, with the “length of the custodial element should be tailored to reflect the age of the child at the time of the offence”.

Conclusion

Accordingly, the Supreme Court indicated that it would allow the appellant’s appeal against his sentence and indicated that remittal to the Court of Appeal would be appropriate, inviting the parties to make submissions as to the appropriate final orders.

The court also allowed the element of the appellant’s appeal relating to his anonymity under s.93 of the 2001 Act having regard to its conclusions in a case heard at the same time as his appeal, People (DPP) v. P.B. [2025] IESC 12, finding that the appellant was entitled to retain his anonymity despite having “aged out” during the criminal process and that his identity could not be publicly reported.

Director of Public Prosecutions v. C.C. [2025] IESC 11