A MENTALLY handicapped youth who raped an eight year old girl in Co Cork when he was aged 14 was jailed for five years because the Southern Health Board (SHB) could not provide treatment for him.
In a 19 page judgment delivered in the Central Criminal Court yesterday, Mrs Justice McGuinness said she was "deeply concerned" the SHB did not have a service for sexual abusers or in patient psychiatric care for children and young people.
It was clear the defendant required "therapeutic treatment, education and training in a secure environment".
"For the present, however, I must accept that no such resource is available to the court and proceed to impose sentence within the parameters available to me", Mrs Justice McGuinness said.
The Supreme Court ruled a sentence had to be proportionate not only to the seriousness of the offence, but also to the personal circumstances of the defendant. While a court could take a defendant's mental condition into account as mitigation, it did not have the power to sentence the person to an appropriate psychiatric institution.
"The courts are obliged to treat a mentally disordered person in the same way as any other defendant who has been convicted of a criminal offence," she said.
She added the defendant would be grouped with other sex offenders and would be subjected to influences "scarcely likely to be those that would prevent him re-offending after his release".
The 17 year old, who has a learning disability, pleaded guilty on October 29th, 1996, to rape and anal rape of a neighbour in October 1993.
The judge fixed December, 1998, for a review of the case.
She also directed that all medical and social reports be made available to the prison governor "as a matter of priority".
The case had been adjourned to May of this year with the defendant on bail, to see if the SHB could find a suitable placement.
On May 29th Mr Patrick Madden, programme manager for community care with the SHB, said the board's focus was on victims of sex abuse and not on offenders.
The judge said she accepted Mr Madden's evidence but added: "I cannot but be deeply concerned at the situation he describes". The health board correctly recognised its duty to the victim, she said.
"They seem, however, scarcely to have taken into account that the defendant, who had freely admitted the offence, was also a child, a child suffering from a degree of mental handicap who lived and had been educated in their functional area," she said.