Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


Director of Public Prosecutions -v- Benko, [2022] IECA 3, January 13, 2022, at paragraphs 56 and 57:

Having  regard  to  the  above  cases,  and  emphasizing  again  that  this  is  a  very  small sample of cases from which to draw general conclusions, one can discern the factors which a court should take into account in a case of attempted murder, as set out below; although to a large extent, they mirror the kinds of factors that are relevant in all sentencing cases. We would suggest they are as follows:

(1) The extent of the victim’s injuries; this is particularly relevant in attempted murder cases (as it is, for example, also in assault-type offences). This is because the offence ingredients are defined by reference to the intent of the offender, thus leaving  room  for  a  wide  variety  of outcomes  in terms  of  the  injuries  caused; ranging all the way from a victim who escapes without injury to a victim who suffers serious and long-term injuries. While the intent to kill is common to all attempted murder cases, the outcome of the accused’s conduct may vary widely, and the actual outcome in terms of the impact on the victim’s physical and mental health is highly relevant to sentencing. This is not of course to say that it must  outweigh  all  other  factors,  but  it  must  be  properly  weighted  in  the sentencing exercise  within  the  parameters  of  proportionality  laid  down  in  the sentencing authorities in this jurisdiction.

(2) Whether  the  offence  was  committed  in  the  context  of a  criminal  enterprise  or other  criminal  offences (such  as  a  robbery,  or  possession  of  a  firearm) and/or whether there were multiple victims;

(3) Whether the offence was committed alone or with another;

(4) The venue of the crime (for example, a victim’s home where they are entitled to feel safe or where children might witness the event, or a crowded public place where others might be also put at risk, and so on);

(5) The overall context or motivation for the offence, insofar as this can be gleaned from the circumstances and/or admissions made;

(6) Whether or not there was a guilty plea and/or the manner in which the accused ran the trial;  

(7) Whether or not there were indications of genuine remorse after the offence, and when  these  first  manifested  themselves .  For  example,  immediate  remorse  and actions indicating that such remorse was genuine would be expected to be given greater weight in sentencing than an expression of remorse which first emerges in the mitigation speech of counsel at the sentencing hearing;

(8) Providing assistance to the Gardai, making admissions, and so on;

(9) The personal circumstances and background of the accused person.

We do not suggest this list to be comprehensive, but merely a brief summary of the kinds of factors that were referred to in the five authorities cited to the Court as well as in the facts before the Court in the present case.