Criminal lawyers not surprised Jozef Puska did not plead guilty to Ashling Murphy’s murder

Some people may be bemused as to why Jozef Puska, given the weight of evidence against him, did not plead guilty to the murder of school teacher Ashling Murphy but criminal lawyers are not among them.

“To me, it’s completely self-evident why Jozef Puska did not plead guilty,” says well-known criminal defence solicitor Dara Robinson.

Advising a client to plead guilty to a murder charge is “almost the last thing” most criminal defence solicitors would do, according to Robinson, who has advised many clients facing murder charges over 40 years in practice.

“That’s because of the consequences. A guilty plea means a mandatory life sentence, now about 18 years in prison, with no entitlement to even be considered for parole for 12 years.

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“Is the mandatory life sentence a disincentive to a guilty plea? For sure it is, if for no other reason than that the offender will be in prison for a minimum of 18 years. That is a very long time.”

The offence of murder, Robinson believes, should be replaced by one of culpable homicide, with guilt or innocence determined by a jury and the trial judge deciding the appropriate sentence.

“I have great faith in juries and I believe the trial judge, who hears all the evidence in the raw, is best placed to impose the term of sentence.”

The Law Reform Commission, in a report in 2013 on mandatory sentences, split over retaining the mandatory life sentence for murder. A majority, three, recommended retention of the mandatory term and two disagreed. The report also advocated judges be empowered to recommend the minimum term a convicted offender must serve.

The fact the UK allows “whole of life” sentences for some murders shows policymakers there recognise some murders “are worse than others”, Robinson adds.

An offence of culpable homicide would, he believes, encourage more guilty pleas, meaning families of victims would not have to endure the trauma of a trial. It would also reduce the substantial legal and other costs of trials.

The mandatory life sentence for murder was legislated for in 1964, at the same time Ireland abolished the death penalty. The mandatory provision reflected concerns among some politicians that judges should not be left at large when sentencing for such a serious crime.

Such concerns, Robinson believes, are addressed by the fact the Director of Public Prosecutions can appeal sentences on grounds of leniency, and convicted offenders can appeal their convictions and/or their sentences. He is firmly of the view, because trial judges have heard the evidence and read victim impact statements and other reports, they are best placed to impose sentence.

The fact judges here, unlike in Britain and Northern Ireland, cannot specify a minimum term when imposing the mandatory life sentence for murder, was highlighted by Mr Justice Tony Hunt when he imposed the mandatory sentence on Puska for the murder of Murphy (23) at Cappincur, Tullamore, on January 12th, 2022.

Murphy died from loss of blood and cardiac arrest caused as a result of 11 stab wounds in the neck. Puska had pleaded not guilty to the murder but he was convicted by unanimous jury verdict on foot of what the prosecution described as “overwhelming” evidence, including admissions to murder made by him, DNA, eye-witnesses and CCTV.

When jailing him, Justice Hunt said it was “long past time” judges should have some say in setting the minimum terms for life sentences, adding he would have considered a whole of life term in this case if he could.

Minister for Justice Helen McEntee has said that, over the past 10 years, people serving life sentences have been imprisoned for 20 years and, in some cases, for considerably longer.

As part of her Review of Policy Options for Prison and Penal Reform 2022-24, her department is examining proposals that would give judges discretion to set minimum tariffs for life sentences for murder and other serious crimes. The proposals did not include “whole of life” terms as those involved “complexities”, she said.

Senior counsel Seán Guerin, who has prosecuted many murder cases, said the rate of guilty pleas for most indictable crimes is about 90 per cent with about half of the remaining 10 per cent convicted. The rate of guilty pleas to murder, in his experience, is much lower.

[ ‘My heart was ripped from my body’: Ashling Murphy’s mother tells court of heartbreak ]

Because homicide is such a serious offence, he understands why policymakers wanted that seriousness reflected in the sentence imposed.

While he could not say whether the mandatory life sentence acts as a disincentive to a guilty plea, he believes it affects the calculation an accused person might make when deciding on their plea. Other factors that might affect such weighing-up exercises included the seriousness of the offence of murder and the delays in getting criminal cases on, he said.

Dr Tom O’Malley, a senior counsel and associate professor of law at University of Galway who is a recognised expert on sentencing law and policy, says a guilty plea in murder cases is very rare.

“I can see why. If the charge is contested, there is the possibility of manslaughter or acquittal.”

Because of the mandatory life sentence, a trial judge cannot give an offender credit for a guilty plea that contrasts with other offences where a guilty plea can reduce the sentence by up to a third, he notes. A guilty plea can influence a decision on parole later on, he says.

O’Malley was in the Law Reform Commission minority in 2013 in favouring giving trial judges discretion when sentencing for murder rather than retaining the mandatory life sentence.

There is “a lot to be said” for abolishing the mandatory life sentence in favour of a presumptive life sentence, with the specific term set by the trial judge, he says. That would allow the judge to take factors such as a guilty plea and remorse into account.

“Having some element of judicial discretion would not necessarily make sentences more lenient,” he adds.

Under existing law, those convicted of more than one murder receive concurrent life sentences but, if there was discretion, a trial judge might consider they should be jailed for longer terms, he points out.

He believes there is no public or political appetite for abolishing the mandatory life sentence and there appears to be a mounting demand for a tougher “law and order” approach, particularly in the case of violent offences.

He expects the Government will proceed with the legislation giving trial judges’ discretion to specify a minimum tariff that convicted murderers must serve and says that should be subject to guidelines on sentencing, currently being prepared by the Judicial Council, or from the courts.

O’Malley does not favour having a “whole of life” sentence option, saying such sentences impact differently on young and older offenders and are incompatible with sentencing principles and the European Convention on Human Rights. The UK is acting in violation of the convention in having such sentences, he says.

In the debate about mandatory sentencing, people “should not lose sight of the purpose and principles of sentencing”, which include giving offenders the opportunity for rehabilitation and release into the community, according to Saoirse Brady of the Irish Penal Reform Trust (IPRT).

There is “little or no evidence” mandatory sentences act as a deterrent, whatever the crime might be, and the trust believes mandatory life sentences for murder may discourage guilty pleas.

Mandatory sentencing removes the opportunity for judges to impose sentences appropriate to the circumstances of individual cases, impact negatively on imprisonment rates and can undermine the integrity of the criminal justice system by having judges, prosecutors and defence lawyers “negotiate justice”, according to the IPRT.

The trust shares O’Malley’s view that whole of life sentences are incompatible with sentencing principles and European human rights law.

The European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment has said a prison sentence that offers no possibility of release precludes “one of the essential justifications of imprisonment itself, the possibility of rehabilitation”.

The IPRT believes the mandatory sentence for murder should be replaced with a discretionary maximum sentence of life imprisonment that would empower judges to recommend a defendant serves a minimum specific term of imprisonment having regard to the particular circumstances of the case, Brady says.

Overall, the IPRT believes there is a need for a wider public debate on sentencing and its purpose, Brady said. She would like to see the Government proceed with establishing a penal policy consultative council with inputs from organisations like her own, lawyers and victims’ groups.

“We all want safer communities and prison serving the purpose it was intended for.”