Dept examining sentencing issue raised in Tserendorj case - Harris

Minister for Justice Simon Harris has said his department is carefully examining the issue raised by a Central Criminal Court judge who delayed sentencing a teenager for murder because of a gap in the relevant legislation.

In a statement, Mr Harris said if changes were necessary to ensure the courts had a robust and effective framework to sentence children in such cases, they would be brought forward.

Mr Justice Tony Hunt had adjourned the sentencing of a 17-year-old boy for the murder of Urantsetseg Tserendorj in Dublin just over two years ago after finding the Children Act does not contain provisions to deal with children convicted of such serious offences.

Ms Tserendorj, who was 49 and a mother-of-two, was stabbed by the boy while she was on her way home from her cleaning job in Dublin's north inner city on 20 January 2020. She died nine days later. The boy was only 14 at the time.

He had admitted manslaughter, saying his only intention was to steal from Ms Tserendorj but a jury convicted him of murder.

Because he is still under 18, the normal mandatory sentence of life in prison does not apply.

Mr Justice Hunt said he wanted to sentence the boy to life in detention with a review of the sentence in 13 years.

But he said, there was a "yawning gap" in the 2001 Children Act, which did not contain provisions for dealing with children convicted of serious offences.

This gap had been exposed by a prevalence of recent cases in the court, he said.

The courts have previously dealt with several high-profile cases by imposing a sentence on the child with a review after a number of years.

But the judge said such cases were too significant and too difficult to be left with opaque and ad hoc guidance.

In particular, Judge Hunt said the process of reviewing a child's sentence after a number of years was not fit for purpose because there was no provision for the judge to suspend any portion of the sentence or to impose conditions.

The judge said whether the gap in the legislation was a deliberate choice or an omission, it was no longer appropriate that such a gap existed, in what was supposed to be coherent and comprehensive legislation governing the area.

He said the issue was crying out for legislative reform and if this was not forthcoming, the Supreme Court would have to consider the matter and advise on the correct procedures.

The judge said he intended to impose a sentence of detention for life without a review but agreed to a request from defence counsel, Michael O'Higgins, to adjourn the sentence to allow for a response from the Oireachtas.

In the statement from the Department of Justice late last night, Minister Harris expressed his condolences to the family of Ms Tserendorj.

He said he was aware of the delay in sentencing and appreciated the distress to the family caused by the delays.

He said the Government had already approved drafting of new legislation to provide for amendments to the Children Act to ensure there were sufficient alternative sentencing options to fully and partly suspended sentences.

Green Party Justice Spokesperson Patrick Costello earlier wrote to the minister to highlight the judge's concerns.

Deputy Costello said the delays in sentencing the boy were causing pain to all parties in the case including the family of Ms Tserendorj and the family of the convicted boy.

He urged the minister to seek an amendment to the legislation as soon as possible, saying there could be no healing without justice and no justice without certainty.

Mr Justice Hunt heard submissions on the issue last month from lawyers for the Director of Public Prosecutions who said there was some uncertainty about the powers of the court to impose a sentence on a child to be reviewed after a number of years, even though such sentences had previously been upheld on appeal.

At the time, the judge also expressed concern that there was no legislation allowing for any portion of a sentence imposed on a child to be suspended or for him to impose conditions on the release of an adult who had been sentenced as a child.

Judge Hunt also paid tribute to Ms Tserendorj in his sentencing remarks as the "lynchpin" of her family.

He expressed the hope that her husband and children would get advice about the assistance they could get from other State organs in relation to concerns they had expressed about financial support and Irish citizenship in the wake of her murder.

He adjourned the sentencing of the boy until 22 February.