The Court of Appeal found that sentences imposed on P. McC. for a series of offences committed as a child were unduly lenient, but ruled it could neither quash them nor resentence him after he turned 18.
The judgment, delivered on 3 October 2018, followed a review sought by the Director of Public Prosecutions under section 2 of the Criminal Justice Act 1993. McC. had pleaded guilty to offences on two bills of indictment in Dublin Circuit Criminal Court. In November 2016, shortly before his 18th birthday, he received concurrent sentences totalling three years’ detention, with the final two years suspended on conditions. The court also imposed a driving disqualification. The second set of offences had been committed while he was on bail following the first.
The first case involved a burglary at a home in Lucan in April 2016. A television, an Xbox, cash and keys were taken. McC. drove one of two stolen cars during a police pursuit that ended when the car went through a bridge parapet into the River Liffey. The driver of the other car also went into the river; both men were rescued. The second case concerned the taking of an 80-year-old man’s car in Ballyfermot two days later. The court heard that the man was pushed to the ground as he tried to stop the respondent, and later reported shoulder trouble, stress and feeling unsafe.
The DPP argued that the sentencing judge had given too little weight to the seriousness of the offending and to the fact the second set of offences was committed on bail, while giving too much weight to McC.’s guilty pleas and age. The respondent relied on his age at the time, guilty pleas, personal circumstances and evidence of being drug-free in custody. The Court of Appeal concluded that the three-year terms, with two years suspended, were a clear divergence from the norm and failed to reflect the gravity of the conduct.
The court also observed that the sentencing judge had no power to partially suspend the detention sentences. It said that point alone did not allow the DPP to appeal, but that the sentences were independently unduly lenient.
However, section 2(3) of the 1993 Act limited the Court of Appeal to imposing a sentence that the original sentencing court could have imposed. Because McC. was no longer a child, the appeal court could not impose detention in a child detention centre; imprisonment had not been available when he was sentenced as a child. The court rejected the DPP’s request to interpret the law purposively, finding the provision clear and the gap one for the legislature to address.
The court therefore left the original sentences in place: it did not quash them or impose replacement sentences. It made no ruling on how the statutory rule on offences committed while on bail might apply to a resentencing, because that issue was moot. It called on the legislature to address the legal gap.