Existing legislation on the sentencing of children convicted of serious offences is not "defective", a Court of Appeal (CoA) judge said on Wednesday, before denying bail to a teenager detained last week for raping his cousin.
Mr Justice John Edwards said the Oireachtas has powers to amend the Children Act and that the courts remained "obliged to apply the law, as it is, without fear or favour".
The teen, who cannot be named because he and the victim are both minors, was 13 at the time of the offending, while his victim was seven.
The now 17-year-old was found guilty by a jury of orally raping his female cousin following a trial earlier this year. He had pleaded not guilty to the rape but pleaded guilty to four counts of sexually assaulting her on dates between October 1st and December 31st, 2018.
At the CoA on Wednesday, Lorcan Staines SC, for the boy, applied for bail ahead of his upcoming sentence appeal and described the Act relevant to the case as "defective".
Mr Staines said the trial judge, Ms Justice Karen O'Connor, had "insufficient tools" at her disposal to avoid an immediate custodial sentence for the boy once he was found guilty.
Counsel submitted that the judge had no provision for deferring, partially suspending, or fully suspending a period of detention when it came to cases involving minors convicted of serious crimes.
Mr Justice Edwards, presiding, said the Children Act represented the law and had the "presumption of constitutionality", adding, "even though it may be inconvenient to you [Mr Staines]".
The judge said if the legislation was defective, as submitted by Mr Staines, then either the Attorney General or the Director of Public Prosecutions (DPP) could have appealed to the Supreme Court, but neither have done so.
Mr Justice Edwards said the Oireachtas had powers to amend the Act and that it was "not appropriate" for Mr Staines to urge the CoA to agree that the legislation is "defective" and then act on that.
The judge said he had a "separation of powers concern" in that the CoA was "obliged to apply the law, as it is, without fear or favour".
Mr Staines said the Act was "defective, as a matter of fact".
"No, it's not so," replied Mr Justice Edwards, "the law is constitutional and while it might be amended it does not make the existing law defective".
'Last resort'
Mr Staines said the lack of provision in the Act to suspend or defer a sentence for a child meant that a sentencing judge could only either impose an immediate custodial detention "or do nothing whatsoever".
Mr Justice Edwards said the offences were considered by the trial judge to be serious enough to pass the threshold for custodial detention, which Ms Justice O'Connor said was a "last resort".
"There was no available alternative, that's the position," Mr Justice Edwards said. Mr Staines replied that the trial judge was "lacking in tools to do justice in the case".
Mr Justice Patrick McCarthy said the "whole point is that the law, as it is, has to be applied". "We use the powers we have, this happens every day up and down the country," he said.
Ms Justice Isobel Kennedy said the offences were "very serious" and carried a maximum sentence of life imprisonment, adding that the applicant had contested the rape charge and he still had only received one years' detention.
"The judge's hands were tied, is that your point?" Ms Justice Kennedy asked Mr Staines who replied "yes".
Eilis Brennan SC, for the State, said the trial judge did not mention any difficulty regarding suspending any portion of the detention when sentencing the boy.
Ms Brennan said that because of the assaults, the victim had been "scared, sad, confused and shocked", adding that the girl had difficulty making friends and also lost a part of her family.
Cross-examined
Ms Brennan said aggravating factors in the case were that the boy threatened to lie to parents if the girl spoke about the assaults, that there were multiple offences, and a large age difference that amounted to a power imbalance.
Ms Brennan added that the girl had been penetrated and that the offences occurred in her home where she should have felt secure.
She said the accused, when cross-examined, admitted his victim "struggled more and resisted more" as the assaults wore on, and that a guilty plea on the rape charge, which was not offered, would have shown that she was telling the truth in that matter.
Counsel said a headline sentence of eight years had been identified by the trial judge had the boy been an adult, and that the one-year sentence amounted to "a discount of seven-eighths" with half discounted solely for his juvenile status.
In refusing the bail application, Mr Justice Edwards said there was a "very clear view" that the court had not been convinced by arguments made by Mr Staines, though he noted the accused was a minor with a sentence appeal pending.
Mr Justice Edwards said the non-jury, three-judge court would hear the sentence appeal on February 27th, as the boy turns 18 next month.
Mr Staines' submission that the Act is "defective" comes after a separate case in which the sentencing of a 17-year-old boy who was convicted of murdering Urantsetseg Tserendorj was further delayed to allow the Oireachtas time to respond to calls for intervention in the sentencing of juveniles convicted of serious offences.
Relating to that case at the Central Criminal Court, Mr Justice Tony Hunt said the Children Act 2001 does not fulfil the role of a coherent and comprehensive framework in that it fails to deal with young offenders, such as the accused in that case.
The legislation "cries out for reform," he said, and "should be attended to because it is merited on its own terms and, if not, it will thrust litigation upon the State".
Michael O'Higgins SC, for the defendant in the murder case, asked the court to adjourn sentencing to await a response from the Oireachtas.
