Children Court: Sentencing of boy for offences while in Special Care Unit not double penalty

About this case:

• Judgment:
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Finding that the boy had a fair trial, Judge John O’Connor stated that a custodial sentence was not appropriate in the boy’s circumstances, but that due to the recent deterioration in the boy’s mental health and wellbeing, it was appropriate to refer the case to the health board pursuant to section 77 of the Children Act 2001.

Background

Under the direction of Tusla, the 17-year-old defendant, AB, resides in a residence run by a charitable organisation.

AB is said to have a positive relationship with the staff of the residence, and has “very supportive and stable parents who have struggled to manage their child’s significant needs particularly as he entered adolescence”.

AB has a diagnosis of Autism Spectrum Disorder, Oppositional Defiant Disorder, Attention Deficit Hyperactivity Disorder, and Conduct Disorder. Consequently AB has severe difficulties managing his feelings and behaviours; has a background history of below average intellectual ability, speech and language impairment and dyslexia; a history of violent and aggressive behaviour; and has experienced emotional disability and suicidal ideation in the past.

Charges

AB was tried in the Children Court in respect of:

There were also several charges against AB which were dismissed on their merits.

Double Penalty

At the conclusion of the trial, the defence solicitor applied for a dismissal on the basis that at the time of the charges, AB was either detained, or about to be detained, in a Special Care Unit as a result of his challenging behaviour and that it was precisely the escalation of his behaviour that facilitated a successful application to the High Court.

His detention in a Special Care Unit acknowledged that his personal circumstances were of such magnitude that a less secure structured environment would not meet his needs.

Therefore, the defence solicitor submitted for the Court to convict AB of the charges would amount to a double penalty.

While not invoking the doctrine of double jeopardy, the defence stated that AB would be criminalised for conduct which is compounding the effects of his civil detention.

The defence solicitor also submitted that the court must have a doubt as to the mens rea of the defendant while he was residing in a Special Care Unit and in the period leading up the successful application to the High Court.

The prosecution argued that this was a criminal trial and the charges and summons were separate from the legal issues placed before the civil proceedings in the High Court.

‘End point’

Judge O’Connor emphasised that the Children Court was at the “end point of the juvenile justice system in Ireland”, and considered judgments DPP (Murphy) v. PT 3 IR 254 and HSE v. D.K. (a minor) IEHC 488. A referral to the Children Court should not be regarded as an automatic response to alleged offending behaviour by a child in a Special Care Unit, irrespective of the child’s history.

As per Section 77 of the Children Act 2001, if it considers that the child before it needs care and protection, the court can adjourn proceedings and direct a Child and Family Welfare conference.

Sentencing

Judge O’Connor considered D.P.P. v. T.C. IEDC 7, and the relevant sections of the Children Act 2001 which mirror the United Nations Convention on the Rights of the Child 2007

Finding that the charges were validly before the court, and that it was not appropriate to dismiss them on the grounds of double penalty; Judge O’Connor was satisfied that AB had a fair trial and he was found guilty on the specific charges. Judge O’Connor also found that AB had the requisite mens rea to commit the offences alleged.

Finding that a custodial sentence would not be suitable, Judge O’Connor stated that despite the difficulty in drafting a suitable alternative sentence to detention, he did “not accept that this difficulty would be sufficient grounds in imposing a custodial sentence”.

Due to the nature of AB’s personal circumstances, a Family Conference under section 78 of the Children Act 2001 or a restorative type justice programme was not achievable.

In relation to the options under section 98 of the Children Act 2001, the court was initially of the view that the only suitable option in this case was a Probation Bond, which would allow the AB to do specified work personally adapted for him based on his circumstances and which the Probation Service and the child had discussed in detail.

However, Judge O’Connor noted that “very recently AB’s behaviour has seriously deteriorated and to such an extent that it isn’t possible for the AB and the Probation Service to work together”. In addition, some of the behaviour is of such significance that there are serious concerns for his well-being and mental health.

Judge O’Connor was satisfied that it was appropriate to refer the case to the health board pursuant to section 77 of the Children Act 2001.