Teenager’s murder conviction exposes failure of legislation to grant essential powers to courts

A “yawning gap” in legislation concerning the sentencing of children convicted of serious crimes was brought into sharp focus this week after it led to a Central Criminal Court judge deferring the sentencing of a teenager convicted of murder.

The specific problem, which has been evident for some years, is the absence of statutory provisions in the Children Act 2001 to permit the courts to review or suspend sentences imposed on minors for serious crimes.

An exasperated Mr Justice Tony Hunt said the lack of clarity as a result of that “yawning gap” meant he was left with an “all or nothing” situation when considering what sentence to impose on a teenage boy for the murder of Urantsetseg Tserndorj in Dublin more than two years ago.

The process of reviewing a child’s sentence after a number of years was not fit for purpose because there was no provision for the court to suspend any part of the sentence or to impose conditions, he said. Cases such as this are too significant and too difficult to be left with “ad hoc” and “opaque” guidance, Mr Justice Hunt added.

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The judge had in mind a life sentence, with a review after 13 years but said that due to the uncertainty about the power of review, he intended to impose a sentence of life in detention with no review. However, in an unusual move, he granted a defence application to adjourn the sentence to allow for a response from the Oireachtas.

A primary objective of the Children Act 2001 is the avoidance, if possible, of exposing a minor to an adult prison environment

Now aged 17, the boy was aged 14 when he stabbed the 49-year-old mother of two on January 20th, 2020, as she walked home from her cleaning job. She died nine days later.

[ Sentencing of teenager for Urantsetseg Tserendorj murder delayed due to ‘yawning gap’ in law ]

[ Victim attacked on lonely IFSC street as most of the world hid from Covid ]

After the boy’s plea of manslaughter was not accepted by the DPP, he was convicted by a jury of the murder of Ms Tserndorj. Because he is a minor, the mandatory life sentence for murder does not apply in his case.

A primary objective of the Children Act 2001 is the avoidance, if possible, of exposing a minor to an adult prison environment. When dealing with children charged with serious crimes, the Act requires the court to have due regard to the child’s best interests, the interests of the victim of the offence and the protection of society.

Prospect for rehabilitation

Senior counsel and law lecturer Tom O’Malley, an expert on sentencing law, has noted a distinction drawn by the courts when sentencing children in that they make specific references to the child’s interests as a child as well as the interest of the victim.

An important consideration in the sentencing of children is the prospect for their rehabilitation and reintegration into society.

While judges in some cases involving children convicted of serious crimes have imposed sentences with reviews after a period of years, submissions for the DPP in the Tserndorj case highlighted that “a degree of uncertainty” has existed for some time about the courts’ powers to review either a life or a determinate sentence imposed on a child.

The appropriateness of such review is “self-evident” in relation to children and it has been judicially acknowledged but there is no statutory basis for it, Seán Guerin, senior counsel for the DPP, told the Central Criminal Court.

Mr Guerin referred to obligations under the UN Convention on the Rights of the Child and noted sentence reviews had been used in some cases involving children, including that of a teenager jailed for 11 years for the attempted murder, when he was aged 15, of a young woman in Dún Laoghaire baths in 2017.

Minister for Justice Simon Harris has said if changes were necessary to ensure the courts had a ‘robust and effective’ framework to sentence children in such cases, they would be brought forward

Michael O’Higgins SC, for the defence, submitted that the lack of clarity concerning the courts’ powers to review and suspend sentences on children convicted of serious offences was a matter “very shrilly crying out for legislation”.

The Court of Appeal seems to have accepted there are particular obligations regarding the sentencing of children but, “unfortunately from everyone’s perspective”, has also ruled that part of a period of detention imposed on a minor cannot be suspended, counsel said. Suspension would allow for controlled release back into society with supports, he added.

In response to the judge’s deferral of sentence, Minister for Justice Simon Harris has said if changes were necessary to ensure the courts had a “robust and effective” framework to sentence children in such cases, they would be brought forward.

New legislation

Noting the distress caused to Ms Tserendorj’s family by the delay in sentencing, the Minister said the Government had already approved the drafting of new legislation to amend the Children Act to ensure there are sufficient alternative sentencing options to suspend sentences partly and fully.

According to Tom O’Malley, the 2001 Act needs to be reviewed “in its entirety”. While the Act reflects “very good” policy and principles, it does not expressly address the power to suspend or review sentences for serious crimes and there is a constitutional issue whether the courts have such a power, he said.

That gap in the law may have arisen because the drafters did not contemplate that children would be guilty of such serious offences, he added.