Cover up may not affect O’Donoghue’s sentence
One of the four grounds on which the DPP made the appeal was that the four-year sentence did not take into account O’Donoghue’s behaviour after he killed Robert Holohan in January 2005.
O’Donoghue moved the boy’s bicycle some distance from his home and then wrapped his body in plastic and dumped it in a ditch at Inch Strand where it was not found for eight days.
He also lied about the circumstances in which he last saw the schoolboy and deliberately tried to put gardaí off the scent by taking part in search parties and challenging officers when they failed to find the boy in the days immediately following his disappearance.
Such behaviour could be classed as obstructing a garda investigation and in court this week counsel for the State, Shane Murphy SC, said the trial judge, Mr Justice Paul Carney, had erred in not taking it into consideration when deciding the length of sentence.
Mr Justice Carney specifically referred to the issue on sentencing day last January when he said: “I am dealing with a manslaughter and not a cover-up.” He said the State could have prosecuted O’Donoghue in relation to the cover-up but did not.
“It could have formed the basis of substantive charges and they were not laid,” he said.
His comments prompted Justice Minister Michael McDowell to publicly defend the DPP.
“Sometimes there are aspects of cases which the public does not understand and sometimes it is not easy for the DPP to explain them, because there are all sorts of complex technical reasons and legal reasons,” he said at the time.
In the Court of Criminal Appeal this week, Shane Murphy insisted Mr Justice Carney was wrong not to view the cover-up as an aggravating factor. “We submit that was an incorrect approach,” he said.
However, Mr Justice Diarmuid O’Donovan, one of the three judges hearing the appeal, challenged Mr Murphy to explain why the State was making an issue of the cover-up when it was not part of the original case against O’Donoghue.
“It was up to the DPP to press other charges and he did not,” he said.
Mr Murphy said Mr Justice Carney had not specified what other charges he was referring to, but Ms Justice Fidelma Macken, who chaired the three-judge panel, interrupted him. “But the DPP could have pressed other charges,” she said.
Mr Justice O’Donovan said O’Donoghue could have been charged under the 1976 Criminal Law Act which makes it a criminal offence punishable by up to five years in jail, to provide false information and waste garda time. There was also legislation which made it an offence to destroy a body or prevent a proper burial.
Mr Murphy argued that the 1976 Act did not apply as it referred to cases involving two or more individuals, not a single person. He said the other legislation had not been successfully prosecuted for some time.
O’Donoghue was acquitted of murdering Robert, his next door neighbour, but was convicted of manslaughter after admitting that he grabbed the 11-year-old around the neck and held him in a headlock because he was annoying him. Robert died of strangulation.
If the judges dismiss the cover-up as grounds for a longer sentence, they must still consider the three other arguments put forward by the State, which says Mr Justice Carney was wrong not to take into account the fact that O’Donoghue was almost twice the age of his victim and much bigger and stronger. The medical evidence suggested the attack on Robert was more serious than “at the horseplay end of the scale” as Mr Justice Carney characterised it.
Mr Murphy also said Mr Justice Carney gave O’Donoghue too much credit for confessing his crime before gardaí arrested him. He said by that time gardaí had found O’Donoghue’s fingerprint on a plastic bag wrapped around Robert’s body and were closing in on him.
The third member of the appeal panel, Mr Justice Eamon de Valera, pointed out it was accepted by everyone that O’Donoghue did not know at the time he confessed that gardaí had found his fingerprint.
The panel disbanded after the two-hour hearing due to commitments in other courts and their deliberations will be cut short by the court holidays beginning on Monday. They are not expected to deliver their decision before October.
The maximum penalty available for manslaughter is life in prison.
CONNECT WITH US TODAY
Be the first to know the latest news and updates
