When members of the Oireachtas set down legislation for the sentencing of young offenders in 2001, it appears it never entered their minds that some of those offenders would be murderers barely out of primary school.
As a result, the sentencing of children for murder and other crimes, which could ordinarily attract a lengthy sentence, has been fraught with difficulty ever since.
Some of these difficulties were debated during Tuesday’s sentencing hearing of the two boys convicted of the murder of 14-year-old Ana Kriégel.
The difficulties surrounding the sentencing of children revolve around the fact that minors are not imprisoned – they are detained. The terms sound like they mean the same thing, and in many respects they do, but in legal terms there are many differences between imprisonment and detention.
Detention is designed to last a brief period, to act as a short, sharp shock for wayward youths, and bring some order and stability into their lives. In most cases the Children Court, which deals with the vast majority of child offenders, can not impose a sentence lasting more than a year.
Furthermore, unlike a prison term a period of detention cannot be suspended or partly suspended by a judge, a fact relayed to Mr Justice Paul McDermott on Tuesday by prosecution counsel Brendan Grehan SC.
Instead a court may impose a “detention and supervision” order. This means some of the sentence is served in custody in the Oberstown Child Detention Campus in north Dublin and some is served in the community under close supervision.
Once on supervision the youth must comply with strict rules such as curfews and therapy or face going back to Oberstown.
Patrick Gageby SC, representing Boy A, who is convicted of the murder and violent sexual assault of Ana, submitted that it is open to the judge to impose a detention and supervision order on his client.
However, Mr Grehan pointed out that the law implies that detention and supervision orders can only be imposed if the child will still be under 18 during the supervision part of the order.
The logic, according to counsel, is that “supervision” as it is defined in the legislation can only apply to a child. The punishment for breaching a supervision order is going back to Oberstown, a place solely reserved for under-18s. Therefore if the defendant has become an adult in the meantime they cannot be punished for breaching an order, counsel said.
Life sentence
There are two other options open to Mr Justice McDermott. The first is a life sentence, the same sentence which is automatically imposed on adults who are convicted of murder. A previous court ruling established life is not mandatory for children convicted of murder but is a valid sentencing option.
The other option is a lengthy sentence which would be reviewed after a set period of time. Mr Justice McDermott raised the prospect that he could sentence the boys to a certain number of years but order that the sentence be reviewed by him, or another judge, at some intermediate point.
If the now 15-year-old boys are over 18 by the time of that review, the judge could order all or some of the balance of the remaining sentence be suspended, depending on their progress in custody.
Part of the confusion surrounding sentencing of child murderers is due to the paucity of case law in the area. Thankfully the courts rarely have to deal with such cases. The vast majority of sentences handed down to children are for minor crimes and are measured in months not years.
Mr Grehan told the court there have been only two other cases of children being sentenced for murder in modern times (there have been other cases of people who committed murder as a child but turned 18 by the time they were sentenced, he said).
One of those cases is that of Darren Goodwin who was 16 in 2004 when he was sentenced to life for the murder of a 14-year-old boy. Mr Justice Barry White, who called it a "premeditated, brutal, vicious and callous" killing, ordered that the sentence be reviewed after 10 years.
Both the prosecution and defence appealed on the basis that the judge did not have the power to order a review of a life term. However, the Court of Appeal upheld the sentence.
The Court of Appeal ruling in that case forms much of the case law being examined by the Central Criminal Court in relation to Boys A and B. It ruled that when sentencing children for serious crimes, which would normally attract long sentences, the court must have special regard to the child's rehabilitation and welfare.
Seven years’ detention
The other case mentioned in Tuesday's hearing was that of a 15-year-old girl who shot and killed Dublin chip shop owner Franco Sacco (29) in Templeogue, Dublin, in 1997.
The teen was sentenced to seven years’ detention for the murder. However, the case returned to court a few months later where the State explained there was no appropriate facility to detain the girl.
At the time young offenders were transferred out of Oberstown at the age of 17. Boys went to St Patricks but there was no facility for girls aged between 17-18.
As a result the Court of Appeal agreed to release the girl and place her under a supervision order for the remainder of her sentence.
The system has now been changed meaning, depending on the length of their sentence, Boy A and Boy B will remain in Oberstown until they are 18½ before being transferred to an adult prison for the remainder of their term.
