I move amendment No. 1:
In page 3, between lines 11 and 12, to insert the following:
“Amendment of section 2 of Act of 1990
2. The Act of 1990 is amended by the substitution of the following for section 2:
“Sentence for treason and murder
2. (1) Subject to subsection (2), a person convicted of treason or murder shall be sentenced to imprisonment for life.
(2) Where a person is convicted of treason or murder and the offence for which that person has been convicted occurred before he or she had reached the age of 18 years, the provisions of subsection (1) shall not apply and he or she shall be liable to a maximum penalty of imprisonment for life.”.”.
As I said on Second Stage, in 2023 I drafted a Bill to do the same thing that this Bill does and to maybe go a bit further. I have heard what the Minister of State and Senator Boyhan have had to say on this. I wish to clarify the nature of what I propose to insert into section 2 and the import of what I am suggesting. Section 2 of the 1990 Act simply states, "A person convicted of treason or murder shall be sentenced to imprisonment for life." This amendments proposes the insertion of two subsections, with subsection (1) stating exactly that. Subsection (2) states that subsection (1) shall not apply to the sentencing of a person convicted of murder who is under the age of 18 years when he or she committed the murder but has attained that age on or before the date of such sentencing. I believe the wording contained in my Bill is better because it includes the provisions relating to treason.
It takes the whole of section 2 of the 1990 Act on murder and treason. In both cases it states a person who was a child at the time of committing the offence will not be subject to the mandatory life sentence. There is still a life sentence and everything up to it available to the court but it is not mandatory. This is exactly what the Bill does with regard to murder. I am merely expanding it to include treason.
I have heard what the Minister of State has had to say, and I understand what he says about treason being a constitutional matter. I do not accept what he has said about it being beyond the remit of legislation. Yes this is rushed, although I respectfully submit that I brought this to the Minister's attention in March 2023. I understand the High Court might have more authority than I do in this regard, and might get more notice from Department of Justice officials, however regrettable this might be. This is something that has been knocking around for a while and many criminal practitioners have been raising it. If the principle is correct that if you commit murder as a child you should be sentenced as a child, then the principle equally applies to treason. It does not matter whether or not the High Court specifically addressed the question in its judgment. In fact, the High Court could not address the question in its decision because the case brought to it was one relating to the murder of a person committed by person under 18. It could not possibly address the treason issue.
If I can be perfectly frank, it is a missed opportunity not to include treason in the Bill. It certainly did not require a great feat of drafting if I could do it in my office and it is here now in amendment form. It is something that can be done. Yes, there is a constitutional framework but it does not prevent us from doing it.
Amendment No. 1 deals with section 2 of the 1990 Act in a clearer way than the Bill and deals with the whole of it. It does not cherry pick from it, whereby the Bill will only apply to murder because that is all we have been told to do. We know there is a problem. As I have said, we do not know when the last time a treason case occurred, never mind when the last time a child was charged with treason, but we do not make laws on the basis it may or may not happen. We make laws because of exactly this scenario, where there is a possibility that a child in future or a child now will be charged and convicted of murder and find themselves in a situation where they are immediately subject to a mandatory life sentence no matter what the extenuating circumstances of the case are, no matter what the judge or jury think, or no matter the submissions the lawyers make. To tie the hands of the court in regard to a child in this way is wrong but it is as wrong for treason as it is for murder, which is why I have tabled the amendment.
