Wayne O'Donoghue's sentence 'not too lenient'

Self-confessed child-killer Wayne O’Donoghue, who strangled his young neighbour in 2004, will serve only a four-year jail sentence for the killing, the appeal court ruled today.

The Court of Criminal Appeal turned down a challenge today by the DPP to the leniency of the four-year prison sentence imposed on O'Donoghue for the killing of his 11-year-old neighbour Robert Holohan.

In a 33-page judgment the three-judge court ruled that the sentencing judge Mr Justice Paul Carney had not made an error in law in imposing a four-year prison sentence.

O'Donoghue was in court for the brief two minute hearing and spoke with his parents Therese and Ray. The appeal court found that Mr Justice Carney had not erred in principle by failing to take into account the disparity in age between O'Donoghue and his victim.

The appeal court also found that in considering the evidence of the injuries caused to Robert Holohan, Mr Justice Carney had based his conclusions on the evidence before the court.

The judgement read: "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 from the catching of the young boy by the respondent (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.

"Having regard to the foregoing the learned sentencing judge did not commit any error in principle in describing the actions as he did. Nor did he fail to consider sufficiently the evidence as to the injuries, nor their seriousness."

The court also found that Mr Justice Carney could not be criticised for failing to take into account the cover up of Robert's killing by O'Donoghue and said that this had been taken into account as part of the impact of the death on the boys family.

On the victim impact statement made by Robert's mother Mrs Majella Holohan, the appeal court said that they were satisfied that Mr Justice Carney did not permit additional material presented at the end of the notified victim impact statement without advance warning to affect the exercise of his discretion in the construction of an appropriate sentence.

The DPP argued the medical evidence related to the killing of Robert, suggested not injuries at the "horseplay" end of the scale, as the trial judge had said, but rather a violent and dangerous assault which should be marked with a significantly higher sentence than the one imposed.

O'Donoghue (aged 22) was jailed last January by Mr Justice Paul Carney after a jury decided in December that he was not guilty of the murder of Robert at Ballyedmond, Midleton, Cork on January 4, 2005.

O'Donoghue had denied the murder of Robert 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 claimed the age, strength and size difference were major factors and that the killing was a violent act and not horseplay, as the trial judge said.

O'Donoghue's lawyer Mr Blaise O'Carroll SC submitted that prosecutors had lost on the murder charge, on DNA, and on pathology evidence, and had now turned to other elements.

In the appeal which was heard in July, Mr Shane Murphy SC, for the DPP, said the injuries inflicted on Robert were, according to the medical evidence consistent with a violent and dangerous assault not fully accounted for in O'Donoghue's version of events.

Such an assault, particularly on a child where it leads to death, should be marked with a significantly heavier sentence than that imposed, which represented a departure from what would be an appropriate sentence and was unduly lenient. The sentence "may be fundamentally flawed" and

his conclusions were wrong.

In passing sentence, the trial judge had referred to the use of a headlock manoeuvre by O'Donoghue in the initial stages of his assault and went on to describe the injuries sustained by Robert Holohan as at the "horseplay end of the scale".

The judge's account of the evidence represented a significant understatement of the gravity of the case which was "not a case of horseplay but of assault. The victim of the assault was a child just

over half the age of the assailant".

Counsel said the trial judge had misunderstood or mischaracterised the medical evidence, failed to capture its full significance and tended to underestimate the gravity of the offence. There was nothing in that evidence to support the finding that the injuries were at the horseplay end of the scale.