Judges must be free to exercise a fair sentencing discretion so as to calibrate punishment and culpability - as the Appeal Court has held in confirming the Wayne O'Donoghue sentence, suggests Tom Cooney
The Court of Criminal Appeal yesterday upheld the four-year sentence that Mr Justice Carney imposed on Wayne O'Donoghue (22) for the manslaughter of his 11-year-old neighbour, Robert Holohan, in January 2005.
At his trial for murder, O'Donoghue pleaded guilty to manslaughter. He said he killed the boy by accident in a row after Robert had thrown stones at his car. Robert died from asphyxia due to strangulation. O'Donoghue dumped the boy's body at Inch Strand in Co Cork. Then he took part in a search for the child.
He admitted the killing before he was charged with murder. The jury found he was not guilty of murder.
The Director of Public Prosecutions (DPP) claimed the sentence was too lenient. The Court of Criminal Appeal pointed out that its task was to review the legality of the sentence and not to decide the question of sentence afresh. So it focused on whether, in structuring the sentence, the judge had misdirected himself in law.
Certain principles guided the court's review. First, the DPP had the onus of proving that the sentence was unduly lenient. Second, the court had to give great weight to the trial judge's reasoning on the sentence because he had received the evidence at first hand.
Third, the essential issue was whether the sentence was "unduly lenient". And, fourth, nothing but a substantial departure from the appropriate sentence would justify upsetting the sentence.
The court rejected the DPP's claim Mr Justice Carney had erred in principle by failing to take into account the disparity in age, size or strength between O'Donoghue and the boy. The boy was a child just over half the age of O'Donoghue.
The court noted that O'Donoghue and the boy had been good friends who played together like brothers despite the disparity in age. In any event, there was no clear evidence at the trial to show that a disparity in age, size or strength had a material forensic effect on the killing.
The court also found that, in considering the evidence of the injuries caused to the boy, Mr Justice Carney had based his conclusions on the evidence before the court. The DPP had argued the medical evidence about the killing suggested not injuries at the "horseplay" end of the scale - as the judge had said - but rather a violent and dangerous assault that should attract a significantly higher sentence than the one imposed.
The court responded that when the judge described O'Donoghue's actions as being "at the horseplay end of things", he clearly meant that O'Donoghue caught the young boy by the neck in a forcible grasping armlock. He had not accepted that O'Donoghue had inflicted a deliberate, violent or prolonged assault on the young boy. The court found he had taken proper account of the evidence as to the injuries.
The court also found that Mr Justice Carney could not be criticised for failing to take into account O'Donoghue's covering up of Robert's killing. It found that this fact had been taken into account as part of the impact of the death on the boy's family.
The court also rejected the DPP's argument that the trial judge had given undue weight to O'Donoghue's plea of guilty. O'Donoghue had offered his plea before he was charged with murder. And there was no evidence to suggest that his confession was offered improperly or cynically only because of pressure.
The court noted that Robert's mother, Majella Holohan, had added material to the victim impact statement without advance notice. The court was satisfied that Mr Justice Carney had not allowed the additional material improperly to colour the exercise of his discretion in giving the appropriate sentence.
The court said that such statements may help the trial judge in finding the proper sentence, and allow the family or friends of the victim express their loss. But statements must meet strict conditions. The sentencing judge and the defence lawyers should have an advance copy of the statement before it is made in court, so that both may have the chance to ensure that it contains "nothing untoward".
The judge must warn the person who makes the statement that if they deviate from it materially in court, they may be held liable for contempt of court. The judge would be entitled to take into account any "unfounded or scurrilous allegations" against an accused to mitigate the severity of the sentence. Clearly, the court was rightfully concerned to prevent victim impact statements from impairing the integrity of the trial as a reliable fact-eliciting process.
In essence, the court of criminal appeal found that Mr Justice Carney had imposed a sentence on O'Donoghue that satisfied fundamental legal principles. The offence of manslaughter is elastic, covering a range of killings. Within this category of offence, different degrees of culpability must attract different levels of punishment.
A trial judge must satisfy the principle that the severity of the punishment should be in proportion to the seriousness of the offence and the blameworthiness of the convicted person.
Within these constraints, judges must be free to exercise a fair sentencing discretion in order to individualise punishment in any particular case on the grounds of culpability.
Here, the court found that Mr Justice Carney had structured his sentencing discretion fairly, taking account of material factors and disregarding immaterial factors.
Naturally, the killing of Robert Holohan horrified people. And they would like to see Wayne O'Donoghue punished more severely. In punishment, however, there is the principle of economy of justified suffering.
Punishment involves suffering. A humane society must be careful to enable judges to impose the least drastic punishment consistent with legitimate and effective punishment.
For some offenders, life imprisonment for manslaughter will be excessive because a less drastic punishment would be effective in deterring the offender and fairer as a mark of our condemnation.
Arguably, for Mr Justice Carney, this was such a case.
Tom Cooney teaches law at University College, DublinOctober 13th: Agreement to disagree agreed. Republicans and unionists begin talks among themselves over how to begin talking to each other.