Court highlights ‘legal lacuna’ preventing the resentencing of a 20-year-old who was sentenced at 17

In a judgment delivered yesterday, Mr Justice John Edwards said there were “no legal means to resentence” a 20-year-old who was sent to a children’s detention centre at 17, even though the court had determined that his original punishment was too lenient.

The man was six weeks shy of his 18th birthday when he was sentenced at Dublin Circuit Criminal Court to one year’s detention at a children’s detention centre.

Due to his age at the time, he was still subject to the provisions of the Children’s Act 2001 which prohibits imprisonment of a child. He had 11 previous convictions.

The Director of Public Prosecutions successfully sought a review of the one year’s detention imposed on the youth on grounds that it was “unduly lenient”. The Court of Appeal agreed. However, in the course of the application, a “conundrum” was identified.

Mr Justice Edwards said the wording of section 2 of the Criminal Justice Act 1993, which governs undue leniency appeals, was limited to the imposition of “a sentence which could have been imposed on him by the sentencing court”.

He said the case called for an appropriate punishment but, since the 20-year-old was a child at the time, the only sentence that could have been imposed was a detention order because the Children’s Act prohibits imprisonment of a child.

The difficulty was that the 20-year-old was no longer a child and it wasn’t possible to sentence an adult to detention in a child detention centre, or for that matter, to a period of detention and supervision. There was therefore “no legal means of resentencing” the 20-year-old.

Mr Justice Edwards said it was an “inconvenient interpretation” which had “far reaching implications”.

Even if it was possible to interpret the legislation in the context of the law’s purpose, as had been submitted by DPP counsel, James Dwyer SC, such an exercise was impossible because the Criminal Justice Act 1993 predated the Children’s Act 2001 by eight years, Mr Justice Edwards said.

Mr Justice Edwards said it could not seriously be contended that the Oireachtas envisaged legislation which had not yet been introduced, much less enacted, when they drafted the section dealing with undue leniency appeals in the 1993 Act.

It was for the legislature to ensure that 2001 Act was reconcilable with the 1993 Act when it was enacted, the judge said. It could have been done by including relatively straightforward amendments. However, the legislature did not do so and the “consequence of failing to do so is the present conundrum”.

Mr Justice Edwards said the existence of such a conundrum would not justify the court in disregarding the separation of powers or in engaging itself in judicial legislation.

He said the court could not rewrite the terms of section 2(3) of the 1993 Act simply because later legislation was enacted which has the effect of rendering it “nugatory” or futile. He added: “The fix that is required is a legislative one, not a judicial one.”

Even though the Court of Appeal found the 20-year-old’s term of detention to be too lenient, Mr Justice Edwards said the court was unable to quash his sentence or resentence him.

He said: “In circumstances where this court’s hands are tied by the need to respect the consitutional separation of powers, it falls to the legislature to address this lacuna in the law that has been identified as soon as possible.”

Up until the 1993 Act, there was no provision in law for the DPP to appeal a sentence on grounds that it was unduly lenient.

Ruaidhrí Giblin, Ireland International News Agency Ltd.