Two teenagers charged in relation to the killing of Tristan Sherry in a Dublin restaurant on Christmas Eve have taken High Court challenges aimed at halting their trials until new laws protecting their rights have been enacted.
Noah Musueni, of Corduff Park, Blanchardstown, Dublin, and David Amah, of Hazel Grove, Portrane Road, Donabate, Dublin, have been charged with Mr Sherry’s murder. They have been sent forward to trial before the non-jury Special Criminal Court.
Both were minors at the time of the alleged offence but have since turned 18.
Mr Sherry, from Finglas, was killed after he carried out a gun attack on Jason Hennessy snr inside Browne’s Steakhouse in Blanchardstown on December 24th last. Mr Hennessy died on January 4th.
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Mr Musueni and Mr Amah’s High Court proceedings allege the State has failed to have in place a sentencing regime that allows judges to take into account that a person convicted of murder was a child at the time of the alleged offence.
Represented by Mark Lynam SC, the two claim that if they are found guilty of murder they would face a mandatory life sentence as they would be sentenced as adults. Such an outcome, it is submitted, would amount to breaches of their rights. It has been recognised that such a grave penalty is not appropriate for children, they argue.
Both men turned 18 before having the opportunity to indicate any plea they may wish to make. They claim that if they were to be found guilty on the current approach, they would be denied the prospect of a sentence review or a determinate sentence. Judges are entitled to consider imposing such measures on people who are minors at the time of sentencing.
It is argued that the two applicants have been prejudiced by current legislation, that they say is adversely affecting their lawyers’ ability to advise them on how to proceed in respect of the charges they face.
It is claimed that, due to oversights, the law in the Republic regarding the sentencing of children who have committed offences is “replete with lacunae”, leading to much uncertainty, stress, unjust outcomes and a lack of clarity regarding sentencing powers.
Counsel said his side was anxious that the applications be heard as soon as possible and that the issues raised be ruled on before the point comes where the applicants have to indicate a plea in respect of the charges they face.
This is why the applicants are also asking the courts for orders preventing their trials from taking place until the laws are amended so that judges are given sentencing powers capable of reflecting the fact that they were children at the time of the alleged offences.
In their judicial review proceedings against the Director of Public Prosecutions, Ireland and the Attorney General, the two seek various declarations and orders from the court. These include declarations that their constitutional rights have been breached due to the State’s failure to have a statutory sentencing regime in place to allow judges to take into account that a convicted person was a child at the time the offence of murder was committed.
They also seek declarations that parts of the 2001 Children’s Act breach their constitutional rights and rights under the European Convention on Human Rights due to the failure to provide for the imposition of a determinate sentence or a review of a life sentence for someone who was under 18 at the time a murder was committed but over 18 by sentencing.
The Irish Human Rights and Equality Commission is a notice party to the actions.
The cases on Monday came before Mr Justice Garrett Simons, who on an ex parte basis granted the applicants permission to bring their actions. The matters will return before the court later this month.
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