The Director of Public Prosecutions (DPP) yesterday presented his appeal at the Court of Criminal Appeal against the leniency of a four-year sentence imposed on Midleton student Wayne O'Donoghue for the manslaughter of his 11-year-old neighbour Robert Holohan, writes Barry Roche
Shane Murphy SC, for the DPP, outlined four grounds to which, he said, trial judge Mr Justice Paul Carney had failed to give sufficient weight when imposing the sentence on O'Donoghue at the Central Criminal Court sitting in Ennis last January
O'Donoghue was sentenced to four years for Robert's manslaughter after he was acquitted of Robert's murder at his home at Ballyedmond, Midleton, on January 4th, 2005. O'Donoghue had contended he killed Robert accidentally in a row after Robert threw stones at his car.
Mr Murphy opened his submission that the sentence was unduly lenient by arguing Mr Justice Carney failed to take account of the disparity in age, size and strength between the then 20-year-old O'Donoghue and Robert, who was half his age.
Mr Murphy argued the disparity in age meant O'Donoghue should have exercised greater self-restraint and this was an aggravating factor to which Mr Justice Carney failed to give sufficient weight.
Turning to the issue of medical evidence, Mr Murphy argued that both State Pathologist Dr Marie Cassidy (for the State) and Prof Jack Crane (for the defence) recognised that Robert had suffered from deep bruising to the neck.
He said this was evidence of a dangerous assault and not a case of horseplay as described by Mr Justice Carney in the course of his judgment.
Mr Murphy also argued that Mr Justice Carney failed to have adequate regard to O'Donoghue's efforts to cover up his involvement in Robert's death and to dispose of and conceal Robert's body.
Mr Justice Carney commented that the DPP had the opportunity to bring substantive charges relating to the cover-up but Mr Murphy said the practice was to give primacy to a murder charge and there was no substantive charge capable of meeting the seriousness of the cover-up.
He also argued Mr Justice Carney gave undue weight to O'Donoghue's plea of guilty and failed to take account of the fact the investigation was closing in on him.
Responding to the DPP's submissions, O'Donoghue's counsel, Blaise O'Carroll SC, told Ms Justice Fidelma Macken, Mr Justice Diarmuid O'Donovan and Mr Justice Eamon de Valera the submissions were "in the realm of nit-picking, scraping the barrel and a denial of reality".
He said that the DPP had originally charged his client with manslaughter but increased it to murder after DNA evidence initially seemed quite strong but, following extensive work by the defence team, this DNA evidence "evaporated into thin air".
Mr O'Carroll also said the DPP had done nothing to correct the totally false and unfounded allegation made by Robert's mother during her victim impact statement in Ennis when she questioned how semen ended up on her son's hand.
"It was an abuse of process leading to my client being vilified with headlines like 'He's a paedophile' and 'It was Wayne's semen'," said Mr O'Carroll, reiterating these allegations were false.
Turning to the medical evidence, Mr O'Carroll said both pathologists testified the injuries on Robert's body were light and the attempt by the prosecution to characterise them as most severe was without foundation.
Mr O'Carroll said he believed Mr Justice Carney had been exemplary in his sentencing, confining himself to the evidence presented. He said the DPP's appeal submissions were "tantamount to calling Mr Justice Paul Carney an idiot".
Ms Justice Macken thanked both sides for their submissions and said she and her colleagues would reserve judgment and deliver it at a later date. Legal sources said it is likely to be October before judgment is given.