David Hand BL weighs the policy arguments in favour of and against suspended sentences for children and argues that the current child sentencing regime is not fit for purpose.
David’s analysis arises in the wake of the Court of Appeal’s decision in DPP v AS , removing the option for sentencing courts of imposing suspended sentences of detention in the manner familiar under the Section 99 aparatus.
Introduction
Infamously, section 99 of the Criminal Justice Act 2006 places the power to suspend a sentence of imprisonment on a statutory footing, extinguishing the common law power to do so. Accordingly, outside the statute there is ‘no scope for a “parallel jurisdiction” to be operated.’ This matter was definitively settled in DPP (Garda Purtill) v Murray, in which the High Court answered in the negative the question, ‘Did the power of the District Court at Common law to suspend sentences of imprisonment survive the enactment of Section 99 of the Criminal Justice Act 2006 as amended?’
Section 99 of the Act of 2006 applies to sentences of imprisonment and not child detention. ‘Imprisonment’ under section 98 of the Act (as inserted by section 17 of the Prisons Act 2015) ‘includes detention in a place provided under section 2 of the Prisons Act, 1970 and “sentence of imprisonment” shall be construed accordingly.’ In turn, section 2 of the Prisons Act, 1970 (as amended) provides that:
The Minister may, for the purpose of promoting the rehabilitation of offenders, provide places other than prisons for the detention of persons who have been sentenced to penal servitude or imprisonment.
While ostensibly a complete code for regulating the suspended sentence, sentences of child detention do not fall under the purview of the section 99 apparatus. Thus, in The People (DPP) v AS, the Court of Appeal rejected an interpretation of section 98 of the 2006 Act that included a power to suspend sentences of child detention. Further, it adopted the same course of logic as in DPP v Murray, finding that the common law power to suspend a sentence of imprisonment did not survive the enactment of the Children Act 2001.
The objective of Part 9 of the Act of 2001 is to provide alternatives to prison for child offenders, ranging from a reprimand to a period of detention in a child detention centre. Indeed, section 156 of the Act of 2001 prohibits a court from passing a sentence of imprisonment on a child or committing a child to prison, and detention orders are made only as a last resort. Other than the limited and prescribed circumstances that permit deferred detention orders pursuant to section 144(9), there is no express provision for suspended sentences of detention in the Children Act 2001. Moreover, the Court of Appeal found no basis to imply such a power from the terms of the Act. Edwards J did not find ‘any support for the notion that the Oireachtas could have intended to row back on the public policy objectives given effect to in Part 9 of the Act of 2001, in the absence of express words indicating such an intention.’
That Court therefore found that a child’s sentence of four years’ detention with the final two years suspended imposed by the Circuit Court in 2014 ‘was bad to the extent that, in so far as it was partly suspended, the suspension was expressed to be for the purposes of section 99(1) of the Act of 2006.’
Thus, with section 99 of the Criminal Justice Act 2006 limited to the suspension of sentences of imprisonment (as defined by section 98, which is silent on sentences of child detention), with Part 9 of the Children Act, 2001 conferring no such power onto the courts, expressly or otherwise, and with the courts bereft of any inherent jurisdiction to suspend sentences extra-statutorily, the position since DPP v AS was decided is that the legal framework does not allow a sentencing judge to wholly or partly suspend a sentence of detention in respect of a child offender.
DPP v DMcD[2020] IECA 149
Recently, this curious lacuna was laid bare in The People (DPP) v DMcD, which considered an appeal against severity of sentence: one of four years’ detention. The appellant in this matter was sentenced in respect of three counts of false imprisonment, three counts of robbery and two counts of section 3 assault – all arising from a single, rather serious incident. The learned sentencing judge dealt with the matter by imposing sentence in respect of one of the counts of false imprisonment while taking the remaining matters into consideration. On the date of sentencing, the appellant was within a fortnight or so of his eighteenth birthday.
In the course of passing sentence, however, certain issues became clear, prompting the sentencing judge to invite the views of counsel. In her plea in mitigation, counsel for the appellant pointed out that he was already serving a two-year sentence of detention and asked the sentencing Court to consider not adding to it greatly. She made reference to the views of the Probation Service: that a period of supervision in the community might form part of any sentence handed down as it might be of benefit to her client. To facilitate this, she suggested that the sentencing Court consider the making of an order pursuant to section 151 of the Children Act 2001, which provides for detention and supervision orders, where half of the period for which the order is in force is spent by the child in detention and the other half under supervision in the community. In light of the various mitigating factors present in the case, counsel indicated that she was asking the Court to include a period of supervision at the end of her client’s custodial sentence, giving him ‘light at the end of the tunnel.’
Due to the serious nature of the offences, the sentencing judge was unwilling to accede to the defence’s request. He signalled his intention to impose a sentence of four years’ detention with two years’ post-supervision, and that the Probation Service should supervise the appellant while in custody and for a period of 18 months post-release. He remarked that the manner in which a sentencing court deals with young people is ‘constrained’ by the Children legislation.
Unclear as to whether a sentence so structured was permissible under the Children Act 2001, the sentencing judge sought counsels’ views. Counsel for the prosecution suggested that the sentencing Court had two options: a detention order simpliciter or a detention and supervision order pursuant to section 151, essentially a period of two years’ detention and two years’ community supervision. Given the serious nature of the offences, the sentencing judge did not consider section 151 a realistic option and confirmed that his principal order was to be one of four years’ detention, though he was anxious to incorporate a supervisory element into the sentence for the accused’s benefit in line with the recommendations of the Probation Service. He therefore imposed a sentence of four years’ detention and directed that the Probation Service supervise the appellant while in custody.
In an unusual appeal against severity, counsel for the appellant argued inter alia that in circumstances where the appellant was already serving a custodial sentence, the sentencing judge could and should have deferred finalising sentence until the appellant had attained his majority, thereby sentencing him as an adult with the benefit of having the option of imposing a partly suspended sentence. Birmingham P noted that the sentencing judge ‘found himself in a situation where the normal route of considering part-suspension was not an option’ and that he was ‘significantly constrained.’ While it is typically the case that it will be to the advantage of a young offender to have their sentence finalised before reaching adulthood, deferring finalisation in this instance would have had the potential benefit of opening up the prospect of a partly suspended sentence, though the appellant would have lost his entitlement to anonymity.
In allowing the appeal, Birmingham P conceded, with some trepidation, the following:
This Court often makes a point of stating that before it will intervene, something in the nature of an error of principle must be established. The point is made that merely because members of the Court, still less, individual members of the Court, might have been minded to act differently, does not provide a basis for intervention. However often that principle is stated, the clear blue line is not always apparent, and there are cases where the Court has to wrestle with the question as to which side of the line a case falls and whether it is appropriate, or even permissible, to intervene. This is such a case. Given that the judge was so obviously and clearly anxious to be in a position to provide for the continuing involvement of the Probation Service following the appellant’s release into the community, we have, not without considerable hesitation, concluded that the judge erred, at least to the extent of not specifically considering the option of deferring finalisation so as to open up the possibility of part-suspension. In that regard, we have been told that there have been instances of judged deferring finalisation of sentence in order to deal with the matter by way of suspended sentences.
The Court of Appeal quashed the original sentence, substituting it for one of four years’ imprisonment with the final eight months suspended, conditional on the appellant entering in a bond to keep the peace and be of good behaviour during his period in custody and for a period of three years post-release.
Discussion & Conclusion
DPP v D McD is instructive in that it finely illustrates restrictions in the child sentencing framework in the wake of DPP v AS. In tandem with this issue is the burgeoning question of whether there is a place for the suspended sentence in the juvenile justice system at all.
In its 2020 report on suspended sentences, the Law Reform Commission concluded that policy arguments against suspended sentences of detention for child offenders are well founded, particularly in the context of wholly suspended sentences. It made reference to the range of sentencing options for child offenders available under Part 9 of the Children Act 2001. In particular, deferred detention orders (section 144) and detention and supervision orders (section 151) may be seen as analogous, if not identical to, suspended sentences, albeit tailored to fit the needs of the juvenile justice system.
That having been said, the Commission was of the view that detention and imprisonment are qualitatively different. The imposition of a sentence of detention is largely informed by welfare considerations, while imprisonment is for the most part punitive. From that perspective, the two systems are not reconcilable and, indeed, it might be regarded as counterproductive to suspend or withhold a period of detention that is intended to be in the child’s best interests. The Commission emphasised the importance of a ‘strong temporal nexus’ between the offending behaviour and the punishment to ensure that the child is capable of cognitively associating the two.
Conversely, the Council of the Bar of Ireland noted in a July 2020 submission that suspended sentences were imposed on children prior to the decision in DPP v AS, and, moreover, were considered to be of value given that underlying issues such as substance abuse or educational gaps could be addressed by attaching conditions to the period of suspension. The Council advocates an amendment to section 99 of the Criminal Justice Act 2006, conferring the option of suspending sentences of detention. Naturally, this is far from straightforward.
Practitioners and members of the judiciary will be all too familiar with what may kindly be described as ‘procedural deficiencies’ associated with the section 99 apparatus, particularly in the context of re-entry and revocation proceedings. Indeed, the Commission considers the 2006 Act too prescriptive and, thus, unwieldy for the purpose of exercising criminal jurisdiction over children, a process requiring particular care and expedition.
Further complications lie in the vexed interplay between the administration of juvenile justice and the appeals system, neatly demonstrated in the case of The People (DPP) v P McC, an appeal on undue leniency. Here, the difficulty was that the respondent was no longer a child and, by definition, not capable of being sentenced to detention in a child detention centre. It will be recalled that where the Court of Appeal is required to re-sentence an offender, ‘it is confined to the imposition of “a sentence which could have been imposed on him by the sentencing court concerned.”’ Accordingly, the Court was rendered somewhat toothless – unable to restructure the original sentence and unable to re-sentence the respondent as an adult.
Nevertheless, DPP v D McD shows that the current regime is insufficiently flexible in situations where the sentencing options available to the Court are not suited to the particular needs of the child offender.
Clearly, it is not a workable position that a sentencing judge should be found to have erred in principle for failing to defer sentence until the offender has become an adult. If the juvenile justice system is to stand apart from adult sentencing, in substance and in form, then it must deliver a viable alternative to taking advantage of the offender being on the cusp of adulthood. This author agrees with the submission of the Council of the Bar of Ireland and believes that a sentencing Court should be statutorily enabled to structure a sentence of detention akin to a wholly or partially suspended sentence.
| David Hand BL David Hand BL is a member of The Bar of Ireland. His full profile and contact details can be accessed here. Views expressed by contributors are not necessarily those of The Bar of Ireland. The Bar of Ireland does not accept any responsibility for them.. |