Court of Appeal dismisses appeal against sentence for attempted murder, false imprisonment, and aggravated burglary. Appeal failed due to unduly severe sentence. Appeal dismissed.

An Chúirt Achomhairc Choiriúil

The Court of Appeal

Bill number CCDP0138/2021 Appeal number CCA 10/2023 Neutral Citation Number [2025] IECA 264

Charleton J Kennedy J Butler J

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

AND

Dominik Biber Accused/Appellant

Judgment of Court delivered by Mr Justice Charleton, 14 November 2025

1. This is an appeal against severity of sentence brought by the appellant, Dominik Biber, arising from his conviction on 17 October 2022 in respect of one count of attempted murder contrary to the common law, one count of false imprisonment contrary to section 15 of the Non-Fatal Offences Against the Person Act 1997 and one count of aggravated burglary contrary to section

13 of the Criminal Justice (Theft and Fraud Offences) Act 2001. Dominik Biber pleaded guilty to all counts.

2. The sentencing judge, McDermott J, imposed a headline sentence of seventeen years. After taking into account mitigating factors, the sentence was reduced to thirteen years with the last two years suspended for a period of three years on conditions. Dominik Biber now argues that an unduly severe headline sentence of seventeen years was imposed, due to the sentencing judge failing to consider the facts of this case against authorities referred to, in particular the decision in The People (DPP) v Benko [2022] IECA 3.

3. The appellant also argues that there was a failure to afford sufficient weight to the various mitigating factors outlined by the court, meaning that an inadequate reduction from the headline sentence was applied in the result.

Background

4. This case arose from events that took place on 11 November 2021. Dominik Biber consumed drugs and attacked the victim, his roommate, with whom he was living as a favour by the victim to his father, stabbing him in the face, neck and head while repeating “I’m going to kill you, devil”. Dominik Biber took a knife from the kitchen and placed an armchair against the kitchen door and told the victim that “(he) would not leave this place”. The victim, defenceless, was stabbed in the face, neck and head whilst sat on the couch. He then managed to break the blade of the knife and ran to a neighbour’s apartment and sought her help in calling the Gardaí. Her young daughter was also present in the apartment during this. Moments later, Dominik Biber forcefully entered the neighbour’s apartment, having now procured two knives. The neighbour and her daughter hid in the living room and eventually escaped from the apartment and called emergency services. By this time, Dominik Biber had overpowered the victim and proceeded to stab him again repeatedly in his neck until he was subdued by Gardaí. Evidence tendered by Dr Catriona Malarkey, who examined the victim the following day on 12 November 2021, attested to the fact that the injuries sustained by him constituted serious harm causing serious disfigurement.

5. When Dominik Biber was brought to Henry Street Garda Station, Gardai witnessed what they apprehended to be the appellant hallucinating and referring to himself as Jesus Christ. He was banging his head off a cell wall, as a result of which he sustained an injury. Dominik Biber ultimately admitted to his actions, stating he could not think straight and that he thought he was the son of God and wanted to kill the devil. As mentioned, he pleaded guilty.

6. The sentencing judge noted various aggravating factors present in this case. Among these were the vicious nature of the offence, the fact that it was carried out in the victim’s own home, wherein the victim expected to be safe and Dominik Biber was merely a guest, the fact that this was a “determined and sustained effort over a protracted period” to attack another person, the invasion of another individual’s home and the fright caused to the residents, and the deliberate procurement of another two knives after the first broke. Dominik Biber also had a history of drug use and had some understanding as to the effects of such, therefore the influence of drugs in the context of the attack was regarded as another factor to be taken into consideration. A headline sentence of seventeen years was imposed.

7. With respect to mitigation, a number of factors were outlined by the sentencing judge. These were the fact that there was no premeditation, an early guilty plea was entered, remorse and regret was expressed, and that Dominik Biber had no previous convictions and was relatively young at the time of the offending. The judge also considered that he had been doing well in custody, that this was an offence that seemed to be out of character, he was gainfully employed at the time of the offending, and that he had taken steps to abstain from drugs and engage with drug treatment services. In accordance with this, the sentencing judge reduced the sentence to that of thirteen years with the final two years suspended for a period of three years on conditions. The sentence was also backdated to 11 April 2021.

Grounds of Appeal

8. Three grounds of appeal are now argued before this Court:

(i) The headline sentence of seventeen years constituted an error in principle as it was unduly severe in all the circumstances of the case;

(ii) The sentencing judge erred in law or in fact when imposing sentence when considering the facts of this matter against the authorities opened to the court from this jurisdiction;

(iii) The sentencing judge erred in law and or in fact in failing to give sufficient weight, recognition, and/or reduction from the headline sentence for considerable mitigating factors in this case. Appellant's submissions

9. The crux of Dominik Biber’s argument is that that the headline sentence imposed was unduly severe, as it did not align with other sentences imposed in other cases of similar offending in this jurisdiction. The decision in Benko is cited as one such comparator case. There, Andrzej Benko was convicted of attempted murder after procuring a lump hammer and hitting his wife on the temple three to four times while she lay sleeping. The victim was left with life-altering injuries including skull fractures and a brain injury. She was left confined to a wheelchair and unable to care for herself. Andrzej Benko was sentenced to fifteen years imprisonment and appealed the sentence on grounds of severity. Ní Raifeartaigh J noted the absence of case law on sentencing for attempted murder and set out some factors that may be taken into account at [56]:

(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.

10. Regarding the first of these above factors, it is argued that the headline sentence nominated in this case was too high, given that the victim’s injuries were non-life-threatening. The argument is that the extent of a victim’s injuries in such cases is closely tied to the intent of the offender, and therefore, in turn, their culpability. Moreover, given the factors outlined in Benko pertaining to sentencing for attempted murder, Dominik Biber also argues that the sentencing judge unnecessarily gave regard to sentencing guidelines from England and Wales and a report from the Judicial Studies Board of Northern Ireland. The report, Sentencing in Cases of Manslaughter, Attempted Murder and Wounding with Intent by Sir Anthony Hart, outlines guideline decisions given by the Northern Ireland Court of Appeal. It is contended that the caselaw detailed in these reports is not relevant to the facts in the present case. In relation to these reports, the following was stated by the sentencing judge:

The case can be considered and contrasted with other cases considered by the court of appeal in the judgment opened to me, again in the case of Benko, in which much more severe injury was inflicted on the victims and, in which the cases mentioned in that report concern offences in which firearms were used, sometimes in a very planned and organised way which would attract much more severe penalties than this case. It is clear that in this jurisdiction, we have yet to develop a range or start of appropriate sentences for cases of attempted murder. And no doubt the Judicial Council will address in the future. However, much of the sentencing guidance in England and Wales, which relates to factors similar to those in this case and identifies the appropriate penalty for the offence, as identified by its sentencing advisory council and by appellate courts in Northern Ireland, albeit under a different statutory structure, has produced sentences for attempted murder ranging from six to 20 years and sometimes extending to life imprisonment. I would also refer to the report by Sir Anthony Hart on sentencing in cases of manslaughter, attempted murder, and wounding with intent, published by the Judicial Studies of Northern Ireland on September 13, 2013. I am satisfied that the appropriate sentence in this case, considering both the offence of attempted murder and the other offences, is 17 years' imprisonment before mitigation.

11. Regarding mitigation, Dominik Biber contends that some mitigatory factors were considered, but that the sentencing judge failed to consider his regretful and remorseful nature after the offending and the apology expressed by him to the victim soon after the offending. It is also submitted that the personal circumstances of Dominik Biber as regards the fact that he had no family in this jurisdiction are relevant, as this would make prison time more difficult without a network of familial support, referring to observations by Professor O’Malley, Sentencing Law and Practice (2nd ed, Dublin 2006) at paragraph 6-52. Although it is acknowledged that the sentencing judge had noted various other factors, such as Dominik Biber’s work history, good character, absence of previous criminal convictions, early plea, and cooperation with the Gardaí, it is argued that, nonetheless, an inadequate weight was afforded to these factors, thus resulting in an unduly severe sentence.

The Director of Public Prosecutions’ submissions

12. The Director of Public Prosecutions accepts that Benko serves as a useful starting point in determining the headline sentence. However, it is highlighted that the court in Benko noted the following at [40]:

...A small sample of cases in which sentences were imposed for the particular offence cannot necessarily be taken as indicative of overall patterns of sentencing. Nor has there been any judgment to date in the nature of a “guideline” judgment with regard to the offence of attempted murder. These caveats must be borne in mind when looking at the authorities cited to the Court, although of course such authorities are useful in general terms for giving some indication of what the Court has previously considered appropriate in terms of length of imprisonment and the type of relevant factors to be taken into account.

13. Therefore, it is contended that the Benko factors are not comprehensive, and they need not be the ultimate considerations to which a court should have regard. It is also emphasised that the court in Benko noted that a headline sentence of twenty years or perhaps life-imprisonment in that case would also fall within an appropriate range, having regard to the offences committed in that case the result of those offences. The Director of Public Prosecutions also argues that parallels can be drawn between the aggravating and mitigating factors in the instant case, suggesting that the nominated headline sentence of seventeen years is appropriate. Regarding Sir Anthony Hart’s report, it is contended that the sentencing judge simply referred to the report, and that there is nothing to suggest that he had significant regard to it as claimed by Dominik Biber.

14. In relation to mitigation, it is submitted that the discount on the sentence adequately reflected the mitigating factors put forth by Dominik Biber. The Director of Public Prosecutions argues that the headline sentence appropriately reflects the seriousness of the crime and impact on the victim, and that a thirty-five percent overall deduction to the headline sentence was apt in this case.

Impact on the victim

15. The attack suffered by the victim left him disconnected from his family, most of whom reside in Poland. He explained, in his victim impact report, that he was afraid to tell his mother about the incident, for fear that it would worry her. The victim also explains having to ring friends and family to inform him that he had not died in the attack. The victim was also unable to attend his work as a general labourer for eight months and describes losing many clients due to the facial scarring he suffers from, aside from the time he had to spend out of work. He also mentions a persisting pain in his leg since the attack. In an attempt to address his injuries, the victim has spent around €4,500 on travelling to Poland for expert medical assistance. Since the attack, the victim now resides with a new tenant and describes still having to see the blood stains on the wall from his attack in his apartment, and being unable to now live on his own since the incident.

Analysis

16. While the decision in DPP v Benko provides guidance in sentencing cases involving attempted murder, it serves as an aid, and not as precedent which must be strictly observed. Sentencing must remain responsive to the facts of each case, and it is an evolving process, informed, rightly, by other cases, but ultimately grounded in the specific facts which come before the court. The contention that, since the victim in this case was not left after the attack, as in Benko, largely confined to a wheelchair, or left with a reduced cognitive function, the headline sentence should not have been set at seventeen years is not a tenable argument. It must also be borne in mind that the remaining counts were taken into consideration and contributed to the overall headline sentence, as they involved related conduct during the same incident: producing a knife with intent to intimidate at two apartments (counts 3, 4, and 5), causing criminal damage to a neighbour’s door frame (count 7), and obstructing a Garda during arrest (count 8). Furthermore, the aggravating circumstances in this case were clear. Here there was violence, violation of the safety of two separate homes, and a prolonged attack carried out, all of which resulted in employment difficulties, familial disconnect, a fear of independent living, and serious injuries including permanent disfigurement and scarring for the victim. In Benko, no headline sentence was identified by the sentencing judge. A 15-year post-mitigation sentence was the only identified sentence. It is difficult therefore to compare the reduction afforded from the headline sentence to the ultimate sentence imposed. There, the aggravating factors were the severity of the injuries, that the appellant was the victim’s husband which constituted a breach of trust, that the victim was asleep and defenceless, and the fact that the behaviour resulted from a build-up of emotions which could have been addressed before violent steps were taken.

17. Evidently, the extent of the victim’s injuries were of particular importance in sentencing Andrzej Benko. Although the injury inflicted on a victim are a highly relevant consideration in sentencing attempted murder cases, it will not always be the factor given the most weight when setting a headline sentence. The offence of attempted murder is defined by the intent to kill, and where that intent is manifested through a sustained and violent course of conduct, the gravity of the crime is not diminished merely because the injuries, though serious, fall short of having been of a life-altering nature. In this case, the attack was prolonged, involved repeated stabbing, and the violation of two homes, creating terror for multiple occupants. This elevates Dominik Biber’s moral culpability and justifies the fixing of a headline sentence within the high range, notwithstanding the fact that the physical consequences, thankfully, were less extreme than those evidenced in other cases. Sentencing must reflect the offending in question, and not solely the medical outcome, or harm done.

18. Even if it were to be accepted that the headline sentence was placed at the higher end of the range, the Court must assess the overall sentence ultimately imposed. The sentencing judge afforded substantial mitigation, applying a reduction of approximately 35 percent to reflect factors including, inter alia, the appellant’s youth at the time of the offence, his early guilty plea, expressions of remorse, and positive conduct in custody. These considerations resulted in a final sentence of thirteen years, with the last two years suspended on conditions. In light of this significant discount, the sentence as imposed cannot be regarded as disproportionate or unduly severe when viewed in its totality.

19. Lastly, while the decision in Benko is instructive, it need not be considered in isolation. Sentencing judges are entitled to draw on other sources of guidance, including comparative resources such as the guidelines issued by the Sentencing Council of England and Wales and reports from the Judicial Studies Board of Northern Ireland. These materials provide useful benchmarks and statistical data, particularly in a jurisdiction where information regarding sentencing ranges for attempted murder have yet to be established. Unlike England and Wales, where such guidelines are binding save where the interests of justice require departure, no such obligation exists here. In any event, it cannot be said that these external sources were anything but a relative benchmark for the sentencing judge, considered appropriately and in a manner consistent with the task of sentencing.

Result

20. In the result, no error of principle has been identified. This Court cannot, therefore, adjust the sentence. The appeal is dismissed.