Court report: Judge had not made any error in law in imposing four-year sentence on Wayne O'Donoghue, court rules
The Court of Criminal Appeal has rejected a bid by the Director of Public Prosecutions to secure an increase in the four-year sentence imposed on Wayne O'Donoghue for killing his 11-year-old neighbour, Robert Holohan.
The three judges of the appeal court ruled yesterday that the sentencing judge in the O'Donoghue case, Mr Justice Paul Carney, had not made any error in law in imposing the four-year sentence.
O'Donoghue was in court for the brief two-minute hearing and spoke with his parents.
Robert's parents, Mark and Majella Holohan, were also in court to hear the decision and afterwards expressed their disappointment. "We are very disappointed today and our thoughts are with Robert," Ms Holohan said.
O'Donoghue (22), was jailed last January after a jury decided in December 2005 that he was guilty of the manslaughter of Robert at Ballyedmond, Midleton, Cork, on January 4th, 2005.
O'Donoghue had denied Robert's murder but pleaded guilty to manslaughter. He said he accidentally killed the boy in a row over throwing stones at his car. The trial heard that Robert died from asphyxia due to strangulation.
O'Donoghue dumped Robert's body at Inch Strand in Co Cork and participated in a search for the child before admitting his involvement in the killing.
Lawyers for the DPP had argued the four-year sentence was unduly lenient. They contended that the sentencing judge had failed to take into account the disparity in age between Robert and O'Donoghue, failed to have regard to the evidence of the injuries Robert suffered, failed to take into account the efforts of O'Donoghue to conceal Robert's body and to cover up the killing, and that he gave undue weight to O'Donoghue's guilty plea and co-operation with the gardaí.
The three appeal court judges - Ms Justice Fidelma Macken, presiding, Mr Justice Diarmuid O'Donovan and Mr Justice Éamon de Valera - yesterday rejected those arguments.
Delivering the court's 33-page judgment, Ms Justice Macken stressed that the role of the Court of Criminal Appeal was to review the sentence only and to decide if the sentencing judge, in structuring and imposing the sentence, had misdirected himself in law by committing an error in principle leading to a sentence which was, in all the circumstances, unduly lenient.
Dealing with the DPP's arguments, she said Mr Justice Carney had not referred to the disparity in age between O'Donoghue and Robert.
The evidence in the trial suggested that while there was a disparity, O'Donoghue and Robert were good friends, played together and were in and out of each other's houses, she said. O'Donoghue and Robert appeared to have acted together more as friends or as younger-older brothers.
In the absence of forensic evidence that a disparity in age, size or strength had a material impact of a forensic nature on the crime, the sentencing judge could not be criticised for not taking it into account, she said.
The DPP had also submitted that Mr Justice Carney's remark that the injuries suffered by Robert were "at the horseplay end of the scale" underestimated the gravity of the offence and argued that the injuries were consistent with a violent assault, the judge noted. She said State Pathologist Dr Marie Cassidy and Prof Jack Crane, the Chief Pathologist of Northern Ireland, who gave evidence on behalf of O'Donoghue, had both agreed that the manoeuvre described by O'Donoghue, of catching Robert in an armlock around the neck, was consistent with the description given by O'Donoghue in his statement and that the cause of death was asphyxia due to neck compression.
The two experts had disagreed on the cause and significance of bruising found in the neck muscles and in the shoulder and buttock areas. Dr Cassidy described in her report the injuries as being "minor and subtle", a description with which Dr Crane was in agreement. The appeal court held that Mr Justice Carney was not to be criticised for choosing some or other of the evidence of one expert over another where both experts were in agreement on the vast majority of the forensic issues and the differences were ones of emphasis.
While the judge's description of O'Donoghue's actions as being "at the horseplay end of things" might not be the most elegant phrase used in the course of his judgment, it described in very clear terms what he meant, namely that the actions arose out of the catching of Robert by O'Donoghue in some type of armlock, even with the additional forcible grasping of the neck, rather than a deliberate violent or prolonged assault on the young boy, Ms Justice Macken said.
Referring to the victim impact statement made by Mrs Holohan before sentencing, which contained material of which neither defence nor prosecution counsel were aware, the appeal court said that while great sympathy must undoubtedly exist for the person making the statement, every effort must also be made to ensure that the statement was not used to undermine the proper role of the prosecution in a trial or to place in the public domain unfounded or unproven allegations against a convicted person.