DPP v Wayne O'Donoghue

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeMacken J.
Judgment Date18 October 2006
Neutral Citation[2006] IECCA 134
Date18 October 2006
Docket Number[No. 39 C.J.A. of 2006]

[2006] IECCA 134

COURT OF CRIMINAL APPEAL

Macken J.

O'Donovan J.

de Valera J.

39CJA/06
DPP v O'DONOGHUE
In the Matter of S.2 Criminal Justice Act 1993
The People at the Suit of the Director of Public Prosecutions
Prosecutor/ Applicant
V
Wayne O'Donoghue
Accused/ Respondent

CRIMINAL JUSTICE ACT 1993 S2

CRIMINAL JUSTICE ACT 1964 S4

CRIMINAL JUSTICE ACT 1993 S2(3)

DPP v BYRNE 1995 1 ILRM 279

DPP v MCCORMACK 2000 4 IR 356

DPP v AHERNE UNREP CCA 5.7.2004 2004/14/3197

DPP v BAMBRICK 1996 1 IR 265

DPP v MACKEY 2005 1 ILRM 481

DPP v GILLIGAN 2004 3 IR 87

CRIMINAL JUSTICE ACT 1999 S29(1)

CRIMINAL JUSTICE ACT 1999 S29(1)(b)

Abstract:

Criminal law - Sentence - Unduly lenient - Failure to have regard to disparity in age - Failure to consider sufficiently evidence as to injuries - Failure to have regard to efforts at concealing body - Allocation of undue weight to plea of guilty - Victim impact statement

The DPP applied pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of the sentence imposed by the learned sentencing judge on the grounds that it was unduly lenient.

Held by the Court of Criminal Appeal in refusing the application that the DPP had not established that an unduly lenient sentence was imposed.

Reporter: R.W.

1

18th day of October 2006by Macken J.

2

This application is made pursuant to s.2 of the Criminal Justice Act 1993("the Act of 1993") by the Director of Public Prosecutions ("the Applicant"). The Respondent Wayne O'Donoghue was tried before a jury at the Central Criminal Court on the 14th December 2005 on a charge that he had murdered a young boy, Robert Holohan, contrary to common law and to s.4 of the Criminal Justice Act 1964. He was acquitted by the jury of murder but found guilty of manslaughter after a trial which lasted from the 29th November to the 14th December 2005. As sometimes occurs, sentence was thereafter adjourned, to the 24th January 2006. The learned sentencing Judge, after hearing further evidence on behalf of the prosecution and from the mother of the young boy, inter alia, as to the effects of the offence and his death on her family, sentenced the Respondent to four years imprisonment backdated in the usual way to the date upon which he was first imprisoned.

3

The Applicant now applies to this court pursuant to the provisions of the Act of 1993, seeking a review of the sentence imposed by the learned sentencing Judge.

4

The Applicant contends that the sentence actually imposed by the learned sentencing judge was unduly lenient. Detailed and helpful submission were filed on behalf of the Applicant and the Respondent, and these, as well as the oral submissions made on behalf of the parties at the hearing of the application on the 27th July 2006, have been considered in full by this court.

5

The facility to seek a review of sentence on grounds of undue leniency arises by virtue of s.2 of the Act of 1993 which reads as follows:

6

2 "(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the "sentencing court") on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

7

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed."

8

The jurisdiction of this court upon the hearing of such an application is also found in Section 2, subsection (3) of which provides as follows:

9

2 "(3) On such an application, the Court may either—

10

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

11

(b) refuse the application."

The Ambit of the Court's Jurisdiction
12

Before considering the sentence itself and the legal principles to be applied for the purposes of s.2 of the Act of 1993, it is appropriate first to say something about the ambit of this court's jurisdiction on an application of this type. That jurisdiction is more limited than, and different in nature to, a full appeal against sentence and even more so by comparison with an appeal de novo, if such were available before this court which is not the case. This court is not engaged, nor is it permitted to be engaged, in an exercise of adjudicating on the application by reference to the sentence it would itself have imposed had it been the sentencing court. It is only if this court determines that the sentence imposed was unduly lenient that upon setting it aside, it is itself entitled to impose an alternative sentence. Until then, the exercise which this court embarks upon is truly one of review, namely to determine whether, in structuring and imposing the sentence which he did in fact, impose, the learned sentencing Judge misdirected himself in law by committing an error in principle, leading to a sentence which was, in all the circumstances, not merely lenient, but unduly lenient.

The Applicable Legal Principles
13

The principles to be applied in a case which invokes the provisions of s.2 of the Act of 1993 were established in the very first case in which that provision was considered, DPP v Byrne [1995] 1 ILRM 279 and in which the relevant part of the judgment of this court, delivered by O'Flaherty, J. states:

"In the first place, since the Director of Public Prosecutions brings the appeal, the onus of proof clearly rests on him to show that the sentence called into question was "unduly lenient".

Secondly, the court should always afford great weight to the trial judge's reasons for imposing the sentence that is called in question. He is the one who receives the evidence at first hand; even where the victims chose not to come to court as in this case ... he may detect nuances in the evidence that may not be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person concerned, what Flood, J. has termed the "constitutional principle of proportionality" (see People (D.P.P.) v. W.C. [1994] 1 ILRM 321, his decision should not be disturbed..

Thirdly, it is in the view of the court unlikely to be of help to ask whether, had a more severe sentence been imposed, it would have been upheld on appeal as being right in principle. And that is because, as submitted by Mr. Grogan, S.C., the test to be applied under the section is not the converse of the inquiry which is made by an appellate court where there is an appeal by an appellant. The inquiry the court makes in this form of appeal is to determine whether the sentence was "unduly lenient".

Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of the reviewing court".

14

The Applicant relies on that case and draws the court's attention to the more recent judgment in The People (DPP) v McCormack [2000] 4 IR 356 in which the foregoing "substantial departure from what would be regarded as the appropriate sentence" was considered by this court, which stated:

"In the view of the court, undue leniency connotes a clear divergence by the court of trial from the norm and would, save perhaps in exceptional circumstances, have been caused by an obvious error in principle."

15

The Applicant has also very properly drawn this court's attention to what is called "the proper approach to sentence", particularly on the hearing of an application pursuant to s.2 of the Act of 1993, invoking the following extract from the latter judgment:

"Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts but on the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of possible penalties is dependent upon these two factors. It is only when the penalty is below the range as determined on this basis that the question of undue leniency may be considered."

16

The court notes that the written submissions filed on behalf of the Respondent also invoke the decision in DPP v Byrne supra, as well as other judgments relied on by the Applicant. The applicable principles are therefore not seriously in dispute before this court. The Applicant and the Respondent part company however on the application of those principles to the sentence actually imposed in the present case.

The Sentence Judgment
17

To understand the arguments made by the Applicant and the response of the Respondent, it is first appropriate, by way of summary, to set out what the learned sentencing Judge decided, namely:

18

(a) He was dealing with manslaughter verdict and not with a cover-up. Because of the range of possible penalties which can apply, from a suspended sentence to one of life imprisonment, it had been considered that manslaughter is one of the most elastic of crimes, and his function was to select a punishment between these extremes and to explain his reasons for doing so.

19

(b) The sentence would be constructed and imposed on the evidence actually presented in open court and by reference to no other considerations.

20

(c) Evidence had been given by pathologists on behalf of each side, on behalf of the Applicant by the State Pathologist, Dr. Marie Cassidy, and on behalf of the Respondent by the Chief Pathologist of Northern Ireland, Professor...

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