Court rejects appeal against O’Donoghue jail sentence

THE Court of Criminal Appeal yesterday rejected an appeal by the DPP against the leniency of the four-year prison sentence imposed on student Wayne O’ Donoghue for killing his 11-year-old neighbour Robert Holohan.

The three judges of the appeal court ruled the sentencing judge Mr Justice Paul Carney had not made an error in law in imposing the sentence.

The parents of Robert Holohan, Mark and Majella, were in court for the two-minute hearing and afterwards expressed their disappointment.

O’Donoghue, aged 22, was jailed last January by Mr Justice Carney after a jury decided in December 2005 that he was guilty of the manslaughter of Robert at Ballyedmond, Midleton, Co Cork, on January 4, 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 Robert died from asphyxia due to strangulation. O’Donoghue dumped Robert’s body at Inch Strand in Co Cork and later participated in a search for the child.

Lawyers for the DPP had challenged the leniency of the four-year sentence, which the DPP appealed on the grounds that:

* The sentencing judge had failed to take into account the disparity in age between Robert and O’ Donoghue.

* That he had failed to have regard to the evidence of Robert’s injuries.

* That the judge had not taken into account the efforts of O’Donoghue to conceal Robert’s body and cover up the killing.

* That the judge had given undue weight to O’Donoghue’s guilty plea and to his co-operation with the gardaí.

The three appeal court judges — Ms Justice Fidelma Macken, Mr Justice Diarmuid O’Donovan and Mr Justice Eamon de Valera — said in a 33-page judgment that Judge Carney had not referred to the disparity in age between Robert and O’Donoghue. However, the evidence in the trial suggested that while there was an age disparity, O’Donoghue and Robert were good friends, played together and were in and out of each others’ houses.

It said O’Donoghue and Robert appeared to have acted together more as friends or brothers.

The court said that 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.

The court said the DPP had submitted that Judge 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 court said State pathologist Dr Marie Cassidy and Professor Crane, the chief pathologist of Northern Ireland, who gave evidence on behalf of O’Donoghue, had both agreed 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 court said that Judge 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 andthe differences were ones of emphasis.

“Whereas his categorisation of those actions as being ‘at the horseplay end of things’ might not be the most elegant phrase used in the course of his judgment, it describes in very clear terms indeed what he meant, namely that the actions arose out of the catching of the young boy 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.”

The court found the judge did not commit any error in principle in describing the actions as he did.

It said the judge could not be criticised for failing to take into account the cover-up by O’Donoghue and said this had been taken into account as part of the impact of the death on the boy’s family. The court also found the judge had not given undue weight to O’Donoghue’s guilty plea.

On the victim impact statement made by Mrs Holohan before sentencing, the appeal court said while great sympathy must undoubtedly exist for the person making the statement, every effort must also be made to ensure that the statement is 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.

“The uncontrolled addition of material perceived by the maker of the statement to exist, or allegedly existing, such as appears to have occurred in the present case outside that presented by the prosecution, which is charged with bringing all appropriate material to the attention of the jury, could lead to an unacceptable interference in the proper prosecution of criminal offences, as well as to very significant damage to a convicted person awaiting sentence,” it said.

“In the present case this court is wholly satisfied that the learned sentencing judge did not permit the additional material presented at the end of the notified victim impact statement without advance warning to any party to the proceedings, to affect the exercise of his discretion in the construction of an appropriate sentence in respect of the crime,” the court added.