Court of Criminal Appeal refuses sentence review application due to improper admission of unverified victim impact statement.

COURT OF CRIMINAL APPEAL

39CJA/06

Macken J.

O’Donovan J.

de Valera J.

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

Judgment of the Court delivered on the 18th day of October 2006 by Macken J.

____________________________________________________________________

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.

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.

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.

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:

“(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.

(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.”

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:

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

( 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

( b) refuse the application.”

The Ambit of the Court’s Jurisdiction

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

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”.

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.”

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.”

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

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:

(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.

(b) The sentence would be constructed and imposed on the evidence actually presented in open court and by

reference to no other considerations.

(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 Crane. The experts were in “broad agreement with some difference in emphasis”. Their evidence

established that the injuries on the body of Robert Holohan were “light”. Of particular significance was that

Professor Crane stated the injuries were consistent with those which resulted from a restraining technique

formerly employed by several police forces in the United States but since abandoned. This evidence suggested

that the injuries were “at the horseplay end of the scale”.

(d) After the death of the young boy, the cover up executed by the Respondent was “appalling”; and there could

be no excusing what had occurred in that regard and no mitigation of what was done. The cover up had caused

incredible grief and distress to the Holohan family. It could not be dismissed as being due to panic by virtue of

the calculation and deliberation involved. The accused was not being punished expressly in respect of the cover

up, but it would be considered as part of the impact on the victims which would be taken into account. The

cover up could have formed the basis of substantive charges but such charges had not been laid.

(e) On the evidence, after the funeral of the young boy, matters changed in that the accused confessed his role in

the events to his father. Prior to his formal arrest the Respondent had dictated a very lengthy seven hour

confession during which he refused breaks and continued until completion. From the point when the Respondent

first confessed to his father “genuine remorse was in play”.

(f) The sentencing judge was not a free agent in sentencing but was subject always to the directions of The Court

of Criminal Appeal, which had given guidance as to matters which could not form part of the sentencing, such as

retaliation and revenge, and other matters arising from the jurisprudence of that court.

(g) He took into account the effect of the crime on the family of the young boy; the fact that the Respondent was

of previous good character; the fact that he did not expect the Respondent to re-offend particularly having regard

to the evidence he heard during the course of the trial; and the Respondent had “at all times he pleaded guilty to

what he was ultimately convicted of”.

The Applicant’s Case

Essentially the Applicant submits that the imposition of a four year sentence constituted a substantial departure from what

would be regarded as an appropriate sentence within the meaning of the above jurisprudence, and that this came about by

reason of fundamental errors on the part of the learned sentencing judge. Because of the nature of the offence of

manslaughter, and the range of circumstances in which charges in respect of such an offence occur, special care must be

taken to examine the particular facts of each particular case. Viewed in that way, the Applicant argues that this case can be

properly seen as one with a number of unusual, disquieting features, properly considered as aggravating factors, which

thereby warrant the imposition of a significant custodial sentence, but which, wrongly, were not so regarded by the learned

sentencing judge.

The errors in principle on the part of the sentencing judge are canvassed in the following terms:

(1) a failure to have regard to the disparity in age;

(2) a failure to have regard to the evidence concerning the injuries which the young boy suffered;

(3) a failure to have sufficient regard to the efforts of the respondent to dispose of and conceal the body of the young boy,

or to consider the cover up as a substantial aggravating factor in relation to the offence of which the respondent was

accused;

(4) giving undue weight to the respondent’s plea of guilty and to his cooperation with the Garda Siochana, by failing to have

regard to:

(a) the evidence of the cover up referred to above;

(b) the evidence that Gardaí had identified fingerprints and had a profile of the offender (and were close to making an arrest)

before the respondent confessed;

(c) the evidence that the respondent had completed a garda questionnaire and had made statements denying any

involvement in the offence;

(d) the evidence that the respondent had closely followed the progress of the investigation and had participated in the

searches for the body of the young boy

(e) the evidence that the respondent had tried to divert the focus of the Garda investigation on to others;

(5) the misdirection of himself as to the jurisprudence of the Court of Criminal Appeal in considering that he was,

by virtue of that jurisprudence, obliged to impose a sentence as lenient as that actually imposed.

The Applicant, in the several introductory pages of his written submissions, sets out what, in essence, he contended for in

the course of opening the case for the Applicant at the commencement of the trial for murder. Briefly it sets out what the

prosecution intended to adduce in evidence in the murder trial, and for the most part what they did in fact adduce in

evidence, with commentary on the activities of the Respondent on the day of the death and on his movements subsequently,

in particular his involvement in the search for the young boy, and his demeanour during that time, as well as conclusions

which the Applicant seeks to have drawn from such evidence, demeanour and activities.

While this outline is helpful to the Court as a background guide to the evidence tendered and to what the prosecution in the

murder trial contended for, whether in opening its case or as to the conclusions it sought, and seeks still, to draw from the

evidence, including evidence as to the demeanour of the Respondent, it does not appear to this court that the Applicant can,

at this time, seek to use that material in the manner presented, with commentary on what it should mean, or as to its

significance, as supportive of his Application that the sentence was unduly lenient, since the jury rejected some at least of

the evidence and some at least of the conclusions sought to be drawn by the prosecution from this very same evidence. On

the other hand, the Applicant points to material or evidence adduced, some of which is referred to in the above general

outline of the case, which he argues relate specifically to the question of sentence, and not properly taken into account by

the learned sentencing judge, thereby leading to errors in principle in the sentencing process or the in term actually imposed.

They form the basis for the above grounds. As to these the court finds as follows:

Failure to Have Regard to the Disparity in Age

It is true that the learned sentencing judge did not refer to disparity in age, which is sometimes appropriate to consider,

especially but not exclusively, in cases of sexual assault of a young or very young person by an adult or other person in a

particular role of trust vis a vis the person assaulted. On the forensic aspect of the trial, from the transcript it not would

appear that any evidence was sought from the State Pathologist, Doctor Cassidy by the Applicant as to the significance, if

any, of an age disparity, as such, between the Respondent and the young boy. While this court did not have the actual

reports of the forensic experts, large tracks of her report or summaries of parts of her report as well as her conclusions, were

quite correctly read into the transcript by Doctor Cassidy. It may be that disparity in age was mentioned in her actual report,

because in his evidence in chief on behalf of the Respondent, Professor Crane, when asked by senior counsel for the

Respondent, Mr. O’Carroll, about its significance, said “… in general terms, the younger the victim, the easier it is for them

to bruise, so they bruise from relatively minor injuries, from minor knocks and falls. Quite clearly if you have an adult who

is applying pressure on to a child’s chest in some form, you might expect to have some significant injuries and perhaps

damage to the ribcage.” He did not however, consider that the injuries to the young boy’s chest were significant in the

context of his death. Dr. Cassidy’s evidence was that down either side of the chest there were small bruises in the fat

overlying the ribs but on the left side there were two small bruises overlying the fourth and six ribs. From a forensic point of

therefore, an age disparity, per se, would not appear to have played a material role in the events leading to the young boy’s

death.

In the course of the oral submissions before this court, it was contended by Mr. Murphy, senior counsel for the Applicant,

that the significance of the age disparity lay in the fact that a young man of the age of the Respondent should have been

more restrained in his approach to a young boy of 11, but was not, and that factor should have been taken into account by

the sentencing judge. However, the evidence in the trial tended to suggest that while there was a disparity in age,

nevertheless the Respondent and the young boy were in fact good friends, played together, and frequently were in and out

of each others houses. The relevant portion of the Respondent’s statement, not challenged by contrary evidence, was to the

effect that he considered the young boy as a brother. So although there was an actual disparity in age between them, they

appear to have acted together more as friends or as younger/older brothers.

It is also contended that the learned trial judge failed to have regard to the disparity in size and strength between the accused

and the young boy. The issue of difference in size as a factor in the death of the young boy, as concerns the forensic

evidence in the trial, also does not appear to have loomed large, and did so mainly in the context of the cross-examination of

Professor Crane. It was suggested to him by counsel on behalf of the Applicant, in the context of the murder charge, that

the manoeuvre of applying direct finger pressure to the neck was more dangerous when there was such a disparity in size.

However, while he accepted the manoeuvre was dangerous, Professor Crane said it was not more dangerous in the case of

such a disparity, as it depended at all times on the actual amount of pressure applied. It is noted that, as regards the actual

amount of pressure applied, Dr. Cassidy said that this had been sufficient to cause bruising, but not sufficient to fracture the

larynx, and she could not say for how long such pressure had been applied.

It would be difficult to see how, in the absence of evidence that a disparity in age, size or strength had a material impact of a

forensic nature in the commission of the crime for which the Respondent was found guilty, and there was no such clear

undisputed evidence, the learned sentencing judge could be criticised for failing to take such disparity into account for the

purpose of constructing the sentence.

On this first ground, this court is not persuaded that the Applicant has satisfied the test that there was any error in principle

on the part of the learned sentencing judge.

Failure to Consider Sufficiently the Evidence as to Injuries

Apart from the issue of the cover up undertaken on the part of the Respondent after the death of the young boy, in reality

this is the real gravamen of the Applicant’s case. It is based on a threefold argument, namely, that the sentencing judge

failed to have sufficient regard (a) to the fact that not all the injuries were consistent with a restraining technique employed

by police forces in the United States, as the judge found was the evidence of Professor Crane; (b) to the evidence

concerning the pattern of bruising consistent with forcefully gripping the neck of the young boy in a manner consistent with

strangulation; and (c) to the evidence of the pattern of bruising and injury not consistent with injuries “at the horseplay end

of the scale”. The Applicant contends that the latter remark of the learned sentencing judge underestimated the gravity of

the offence. Counsel for the Applicant and refers to several extracts from the transcript in support of his submission that the

injuries were consistent, on the contrary, with a violent assault not fully accounted for by the Respondent’s explanation.

On this issue the Respondent contends that the Applicant is in reality seeking to revisit the evidence tendered and to

reinterpret it so as to suggest that the account of the accident as described by the Respondent in his statement was not true,

thereby wrongly seeking to revisit the conclusions to be drawn from the evidence or its significance, when, on the contrary,

the jury had, on an objective basis, clearly accepted the Respondent’s version of what occurred. The Respondent submits

that this exercise cannot be carried out in the context of an application to review sentence on the grounds of alleged undue

leniency. Further, the Respondent argues that in applying the jurisprudence to this particular aspect of the application, those

found in the case of The People (DPP) v Ahern (unreported, Court of Criminal, 5 July 2004) apply. It is submitted that

when considering the various cases in which the courts have applied sentences in manslaughter cases, and, contrary to the

contention of the Applicant that the assault in this case falls to be considered as being in the highest range, it properly lies at

the lower end of the scale.

As to this ground, the submissions of the Applicant must be considered in light of the background to this matter. The fact

that a charge of manslaughter could have been laid in respect of the events in question but was not; the forensic or

pathology evidence presented in the trial; the fact that the jury acquitted the Respondent of the charge of murder and

convicted him of manslaughter; these may all be relevant factors. It must be borne in mind in particular, that the entire of

the evidence tendered by the prosecution on this issue, as well as the content and the thrust of counsel’s cross-examination

of the forensic expert tendered on behalf of the Respondent, was with a view to establishing that the Respondent was guilty

of murder, and not of manslaughter. The jury, however, upon a consideration of that evidence, rejected the contention of

the prosecution that the Respondent was guilty of murder. In such a context, the approach by the Applicant to the question

of sentence via the mechanism of challenging the conclusions drawn by the learned sentencing judge from the evidence, for

sentencing purposes, requires to be dealt with with great care. The Applicant is not entitled to challenge the finding of the

jury acquitting the Respondent of murder, or their finding that the events instead constituted manslaughter, and the

Applicant’s counsel very fairly accepts this is the case. Whereas a sentencing Judge must have regard to the evidence as

disclosed, inter alia, by the forensic experts, it is essential that, in doing so for the purposes of sentence, the judge does not

draw conclusions from the evidence which might undermine or question the acquittal by the jury on the charge brought, in

this case one of murder, when that acquittal was based on the very same evidence.

It also cannot be gainsaid that a sentencing judge, in considering the evidence for the purposes of sentencing, is not obliged

to trawl through that evidence to ascertain whether, as between two very learned experts - in this case in the field of

pathology and forensics - the highly sophisticated and nuanced differences between one and the other, where they arose, on

the exact minutiae of the manoeuvres likely or possibly undertaken, or as to the consequences of those differences, one

expert as opposed to another is unassailable. Their evidence and its significance have already been considered and applied

by the jury in their determination of the facts at trial. The sentencing judge must of course be able to draw conclusions on

the evidence which are capable of being supported, and he must consider all the evidence “in the round” so to speak. In the

course of the hearing the Applicant’s counsel agreed that in assessing the conclusions of the sentencing judge on the

evidence, he, the Applicant, must establish that there has been a manifest error on the part of the sentencing judge in his

analysis of the evidence or in the conclusions drawn from it. Although this court agrees with the contention of the

Respondent that it is inappropriate, having regard to the finding of the jury on the charge of murder, to revisit the case made

by the Applicant in support of that charge, nevertheless it is important to ensure that all the arguments propounded on the

part of the Applicant as to sentence are considered by this court.

It is appropriate to deal with all the arguments adduced under this ground together and set out first what was agreed by the

experts, who overall were ad idem on some very important general matters. Firstly that the manner in which the body reacts

to the events which occurred is extremely complex. Secondly, that in case of death due to neck compression, matters are

highly complicated because one is not considering the straightforward effects of lack of oxygen. Thirdly, there is a period of

time which elapses between the formation of petechial haemorrhages and the start of the process of hypoxia, but it is very

difficult to say precisely how long that period is. Fourthly, although it is well known that persons can survive being deprived

of oxygen for a reasonable period of time, even four or five minutes, unconsciousness in the case of neck compression

occurs rapidly and in a shorter time than would be expected. Finally, even when pressure is removed from the neck, and/or

the vagal system is no longer being stimulated – itself a complex matter - it is not the case that the person will necessarily

recover. Indeed, on Doctor Cassidy’s evidence, the opposite is the more likely outcome, where a spontaneous return of the

heart to normal does not occur, and the person cannot be resuscitated.

Both experts also agreed on more specific matters: that the manoeuvre described by the Respondent of catching the young

boy in an armlock around the neck was consistent with the description given by the Respondent in his statement, that the

injuries were “minor and subtle”, that the cause of the death of the young boy was “asphyxia due to neck compression”, the

words used by Dr. Cassidy and accepted as being correct by Professor Crane. He said: “I broadly agree with the findings of

Dr. Cassidy. It’s my view that this was an asphyxial type of death, related to some sort of compression or force applied to

the neck”. Both experts agreed that the actions of the Respondent, including grasping of the neck also likely resulted in a

lack of oxygen to the brain, causing diffuse hypoxic damage, a condition associated with or resulting from some at least of

manoeuvres adopted by the Respondent, which can cause a lack of oxygen to the brain and a knock on effect to the heart.

However there were additional indicia found, in particular the petechial signs, which are small pinhead sized haemorrhages

arising when tiny blood vessels come under pressure for some reason, as well as bruising or a pattern of bruising, on which

the experts were not in agreement, either as to their causes or more importantly their consequences. Briefly, the experts

disagreed on the following matters. While both experts agreed that the bruising on the neck was probably caused by finger

pressure arising when the neck was grasped, they were not in agreement as to whether such pressure arose prior to the

effects of the armlock on the young boy occurring or later, or as to whether they caused, or significantly or in any way,

contributed to the death.

More marked differences arose between the experts on the issue of the cause and significance of bruising or a pattern of

bruising found in the neck muscles, and also, although probably to a lesser extent, in the shoulder and buttock areas. As to

the bruising on the neck muscles this was agreed to have been caused by the neck being grasped forcibly. Dr. Cassidy

considered these bruises to be definite and not minor and more commonly seen in the case of strangulation where the neck

is gripped forcibly, whereas Professor Crane considered that muscles, particularly those under the skin of a child, bruise

easily, and therefore said one could not draw any clear conclusions from their existence.

Although both experts agreed that interference or stimulation of the carotid artery and/or of the vagal system can lead to

rapid loss of consciousness on the part of the person caught in the grip of the attacking person, Dr. Cassidy did not consider

that stimulation of the vagal system alone would explain all the damage she found at post mortem, having regard to the

bruising pattern found. Professor Crane stated that the type of armlock manoeuvre used might well cause the young boy to

be in the process of dying even before any grasping of the neck, and the latter therefore might not be of any material

consequence.

Finally, Dr. Cassidy presented possible reasons for the appearance of bruising to the shoulder and buttock areas or muscles.

Professor Crane considered that it would be difficult to reach any firm conclusions as to whether these were material factors

in the events leading to or associated with the death, given the wide number of possible causes for them. It had been

disclosed in the course of evidence that the Respondent indicated he had pushed the young boy up against a motor vehicle

while holding him in an armlock. There was some disagreement between the experts as to whether this would have been the

likely cause of this latter bruising. It is fair to say that Dr. Cassidy, in cross-examination, clarified that her opinion on these

latter bruises was presented on the basis that it would assist in an overall assessment of the likely events leading to death of

the young boy or as part of the surrounding factors to be taken into account, but that her opinion was not to be viewed as

indicative of only one possible explanation for such bruising, particularly in a young active child.

A consideration of the foregoing extracts from or reference to the evidence of the experts, even if not exhaustive of every

issue arising, makes it clear how much in agreement the experts were, and where there were differences between them, how

nuanced those differences were.

Taking the Applicant’s case at its highest, it is contended firstly that the actions of the Respondent were such that they

constituted “a violent assault” on the young boy. In the course of her evidence in chief, Dr. Cassidy described the injuries in

her report, as being “minor and subtle”, a description with which Dr. Crane was in agreement. She stated variously in the

course of her examination in chief that “Post mortem examination showed no evidence of significant trauma to this young

boy”, and further, “… the marks to this young boy were very subtle. There wasn’t evidence of any severe injuries to this

young child … ” and also “Although there was no evidence of any significant blunt force trauma to the body to suggest he

had been the victim of a violent assault, there was bruises …”. She did state in

cross-examination “The injuries to the neck are an indication that there has been forceful gripping of the neck but there’s no,

as I say, no injury to the larynx. But there were definite asphyxial signs and I don’t agree that these were minor, they were

very definite. But I do agree that some form of vagal inhibition/cardiac slowing would have played a factor in the

mechanism of the death.” In his evidence in chief, Professor Crane accepted that the deep bruising to the neck area was

caused by the grasping of the neck, but “as to how much force was applied that was very difficult to say.” When pressed by

counsel to agree that deep bruising is something which reflects a greater degree of force, Professor Crane demurred and

offered a more nuanced response. When it was put to him that there was the application of “serious force” he agreed only

that it was “sufficient force to cause bruising”. It was suggested to him, on more than one occasion, that the young boy had

been “subjected to a violent assault”, but he reiterated that what he had said was that there was no evidence he had been

assaulted and when counsel for the Applicant pressed Professor Crane to accept that his views represented “the application

of violent force” to the young boy, he merely replied “We know that those actions, as doctors, are dangerous.”

As to the second basis for this ground, namely that the learned sentencing judge undervalued the gravity of the offence,

because the extent or pattern of the injuries found was not consistent with the Respondent’s explanation, the evidence of the

experts on this is adequately set out above. On the third basis for this ground, although the first made, namely the alleged

wrongful acceptance by the learned sentencing judge of the evidence from Professor Crane that the armlock manoeuvre had

been in use by Police Forces in the United States, Professor Crane was cross-examined by counsel for the Applicant as to

this now abandoned practice, and was challenged on the application of fingers to the throat and on the issue of strangulation

of a suspect by police forces. But the main point of his relevant evidence however was that, while both the armlock

manoeuvre itself as well as the application of fingers to the throat were actually dangerous, they were not appreciated by the

public as being so. This evidence was not challenged and no contrary evidence was adduced in that regard. As to this

manoeuvre not accounting for all the injuries, the evidence on that is also sufficiently set out above.

This court finds that unless there is an obvious and material error in the conclusions drawn by a sentencing judge from the

evidence, that is to say, a “manifest error”, a sentencing judge, in carrying out the exercise which he does in the course of

sentencing, is not to be criticised for choosing, as in the present case, some or other of the evidence of one expert over that

of another as being an appropriate basis upon which proceed, particularly where, as here, the experts were in agreement on

the vast majority of the forensic issues, and where they disagreed, the differences between them were ones of emphasis. In

preferring the evidence of Professor Crane, on the pattern or extent of injuries found, or more pertinently, on the

consequences flowing from the same, to that of Dr. Cassidy, the learned trial judge did not stray beyond what he was

entitled to do, namely to prefer the evidence of one expert over that of another.

This court also finds that the conclusions of the learned sentencing judge in his judgment were clearly based on the evidence

before the court. His finding that there was broad agreement between the two experts but a difference of emphasis between

them was correct. 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 the Respondent 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. His conclusions from

the evidence that the actions of the Respondent could be set at the “horseplay end of things” is also not inconsistent with the

description of the same action in the evidence as being “dangerous”. Nor is the description used by the learned sentencing

judge at odds with the evidence tendered. As to whether or not the actions constituted a “violent assault”, as contended for

by the Applicant, the forensic evidence did not lend itself to that conclusion. The difficulty arises from the eliding or the

equating by the Applicant of the description “dangerous” with “a violent assault”, or “a prolonged deliberate assault”, when,

on the evidence, they are not necessarily the same.

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 application, so far as it is based on this ground, does not satisfy the applicable test as to a review of sentence.

Failure to have Regard to the Efforts at Covering up and Concealing the Body

The third ground is a relatively straightforward one. It asserts in essence that an aggravating factor which the learned

sentencing judge ought to have taken into account, but did not, was the cover up engaged in by the Respondent. The cover

up was considered by the sentencing judge as being wholly unacceptable, put at its mildest. In the judgment on sentence, it

was stated that this cover up would be taken into account as a matter which had a significant adverse effect on the family of

the young boy. It was, on the face of the judgment therefore, taken into account.

The issue for consideration is in reality whether it should be implied that this factor was nevertheless not adequately taken

into consideration, having regard to the actual sentence imposed. In that regard the Applicant relies in particular on the

judgment in the case of The People (DPP) v Bambrick [1996] 1 IR 265, in arguing that there are significant similarities

with the present case. However, in the Bambrick case, the plea of guilty was accepted by the prosecution and the court was

concerned only with the question of sentence. Further, that judgment was concerned exclusively with two difficult legal

questions, namely, preventive detention, and the question whether the appropriate sentence may include a life sentence, in

the context of a plea of guilty to a lesser charge than one carrying a mandatory life sentence.

In the course of the judgment, the learned sentencing judge stated:

“Apart altogether from any question of preventive detention,

can I sentence the accused to life imprisonment for these horrific homicides.?”

It is this extract the Applicant relies on in support of the argument that the subsequent cover up in that case was also taken

into account as an aggravating factor in sentencing. This court is not persuaded that this is so. Firstly, the question was

posed in the context of the second of the above question and not as an independent issue. Secondly, it refers only to the

“horrific homicides” and not expressly to the cover up events occurring after the deaths of the two women, which are not

referred to at all in the judgment, save in that part which sets out the statement the accused made to the gardaí in which he

had confessed to the deaths. Thirdly, the events constituting the homicides themselves were properly described as “horrific”.

The case of The People (DPP) v Mackey (unreported, Court of Criminal Appeal, 24th November 2004) does not appear

to bring matters further, since in that case it was stated that the description of the accused’s demeanour arising in the period

after the killing was in fact merely in accord with the description of his demeanour as given by the accused himself.

Moreover, the conclusions of the court were couched in terms which dealt with the global position both before and after the

crime had taken place, and not separately with the events post the killing.

A consideration of the difficulties which arise for a sentencing judge in dealing with circumstances which may, but have not,

led to separate charges being levelled against an accused, has been the subject of judgments in this jurisdiction and in the

United Kingdom. It is sufficient for the purposes of this judgment, to refer to the judgment of this Court (McCracken, J.), in

the case of The People (DPP) v Gilligan [2004] 3 I.R. 87, in which the English jurisprudence on this issue is fully

considered, and in which he stated:

“6 Curiously, there seems to be very little authority in relation to that issue in this country however, the

matter was considered by the Court of Appeal in England in the case of Reg. v. Kidd [1998] 1 W.L.R. 604. In

that case, the issue was posed as follows at p. 606:-

‘The issue may be expressed as follows: if a defendant is indicted and convicted on a count

charging him with criminal conduct of a specified kind on a single specified occasion or on a

single occasion within a specified period, and such conduct is said by the prosecution to be

representative of other criminal conduct of the same kind on other occasions not the subject of any

other count in the indictment, may the court take account of such other conduct so as to increase

the sentence it imposes if the defendant does not admit the commission of other offences and does

not ask the court to take them into consideration when passing sentence?’

7 This was decisively answered by Lord Bingham of Cornhill at p. 607 in the following terms:-

‘A defendant is not to be convicted of any offence with which he is charged unless and until his

guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of

a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or

which he has admitted and asked the court to take into consideration when passing sentence: see

Reg. v. Anderson (Keith) [1978] A.C. 964. If, as we think, these are basic principles underlying the

administration of the criminal law, it is not easy to see how a defendant can lawfully be punished

for offences for which he has not been indicted and which he has denied or declined to admit.

It is said that the trial judge, in the light of the jury’s verdict, can form his own judgment of the

evidence he has heard on the extent of the offending conduct beyond the incidents specified in

individual counts. But this, as it was put in Reg. v. Huchinson [1972] 1 W.L.R. 398 at p. 400 is to

‘deprive the appellant of his right to trial by jury in respect of the other alleged offences’. Unless

such other offences are admitted, such deprivation cannot in our view be consistent with principle.’

8 That seems to this court to be a clear and unambiguous statement of principle with which the court entirely

agrees. Indeed, counsel on behalf of the respondent does not really challenge it. He does seek to argue,

however, that the sentencing court is entitled to have regard to the overall evidence of the activities of an

accused in determining the gravity of the individual charges in respect of which he has being convicted. In the

present case, he points to the fact that the offences took place over a period of some 28 months, that there was

clear evidence that these offences were part of organised crime, and that indeed the applicant was closely

involved in the organisation, and that he would appear to have been motivated purely by greed.

9 While this court accepts the reasoning in Reg. v. Kidd [1998] 1 W.L.R. 604, quite clearly a sentencing court

cannot act in blinkers. While the sentence must relate to the convictions on the individual counts, and clearly

the applicant must not be sentenced in respect of offences with which he was not either charged or convicted

and which he has not asked to be taken into account, nevertheless the court in looking at each individual

conviction is entitled to, and indeed possibly bound to, take into consideration the facts and circumstances

surrounding that conviction. Indeed, if that were not so, and these were treated as isolated incidents occurring

at six month intervals, it might well be that the proper course for the court to adopt would be to impose

consecutive sentences. The court does, therefore, accept the basic principle behind the argument of counsel for

the respondent. However, the court does think it important to emphasise that in many cases there may be a

very narrow dividing line between sentencing for offences for which there has been no conviction and taking

into account surrounding circumstances, which may include evidence of other offences, in determining the

proper sentence for offences of which there has been a conviction. It is important that courts should

scrupulously respect this dividing line.”

While the facts and the possible “other” charges in the latter case were quite different to those which might have arose in the

present case, the difficulties which a sentencing judge faces in balancing the overall context of the crime against the

undesirability of sentencing for matters which could have been the subject of a charge but were not – as must often arise in

the case of trials for murder or manslaughter – cannot be overstated. The above considered approach of the Court of

Criminal Appeal is the definitive approach proposed, and it has been followed by this court in at least one subsequent

decision.

While a sentencing judge may validly take into account appropriate surrounding circumstances, even those of a cover up,

nevertheless, if, as the above jurisprudence recommends, a sentencing judge must scrupulously respect the appropriate

dividing line, he cannot be criticised for doing so in the present case, especially when, on the face of the judgment he has not

been blinkered as to the surrounding facts, and the cover up has in any event been taken into account as part of the impact

of the death on the boy’s family.

In the circumstances, the Applicant has not established that the learned sentencing judge committed any error in principle in

the manner in which he took account of the cover up, and this ground is therefore not established.

The Allocation of Undue Weight to the Plea of Guilty

Next, it is argued on the part of the Applicant that undue weight was given to the Respondent’s plea of guilty. The basis for

this is the claim that the learned sentencing judge failed to have proper regard to several matters, namely:

(a) the evidence concerning concealment the body and his own involvement in the death;

(b) the evidence of the stage in the enquiries of the gardaí who were close to making an arrest prior to the confession made

by the Respondent;

(c) the evidence that the Respondent had completed a Garda questionnaire and made statements, in all cases denying his

involvement in the death;

(d) related to (a) above, the evidence that the Respondent had closely followed the progress of the investigation and the

searches for the remains of the young boy, in which searches he participated.

(e) The evidence that the Respondent tried to divert the focus of the Garda investigation onto others.

These can be considered in two groups. The matters arising under headings (a) (c) (d) and (e) are sufficiently dealt with

above under this courts comments on the cover up and on charges which might have been brought but were not. As to the

ground set out at (b), namely that the gardaí were on the point of effecting an arrest, this requires further consideration. The

Applicant invokes the provisions of Section 29(1) of the Criminal Justice Act 1999 which states:

“In determining which sentence to pass on a person who has pleaded guilty to an offence, other than an

offence for which the sentence is fixed by law, a courts, if it considers it appropriate to do so, shall taken into

account –

(a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and

(b) the circumstances in which this indication was given.”

Apart from anything else, this provision is concerned only with “proceedings”, that is to say, criminal proceedings which

have commenced. It refers to the “stage in the proceedings” at which the guilty plea was tendered, which can only be after

they are in being. It is generally accepted that a plea in the course of the proceedings is welcome since (a) if given in time, it

frees the court to deal with other cases in which a plea may not arise, (b) it frees the prosecution from having to establish all

of the necessary proofs in a case, in the sense that the plea of guilty may well be accompanied by sufficient information or

admissions as to be of material assistance to a prosecution, and (c) it avoids the necessity for witnesses to have to give

evidence, which in certain circumstances may be of particular benefit to them. While the Applicant correctly contends that a

plea of guilty may lead to a discretionary reduction in sentence, it is nevertheless the case that such a reduction is generally

given in the case of a plea which, as here, was tendered to the court at the earliest stage in the proceedings and which would

have had, as its effect, the above consequences.

It is also submitted that the learned sentencing judge failed to have regard to the behaviour of the Respondent before any

proceedings commenced, as part also of “the circumstances in which the indication of a plea was given”, within Section

29(1)(b) of the above Act. However, the “indication” in that subsection is a reference to the indication referred to in the

earlier subsection, which in turn is limited to “proceedings”, so this argument would not appear to be of assistance to the

Applicant.

On a more general basis, the Applicant contends that there were particular reasons why, in the present case, the learned

sentencing judge should not have given any reduction in sentence for the plea of guilty to manslaughter tendered. This is

because the Applicant claims, to put it in a nutshell, that the Respondent only confessed because he knew he was about to

be caught, and that this was the same as or analogous to being caught “red handed”. This, it is said, is because the Gardaí

had identified fingerprints of the Respondent on a bag found with the remains of the young boy, and they also had a profile

of the offender and were close to making an arrest, prior to the confession.

If the general principle of law were, as contended on behalf of the Applicant, that a sentencing judge must consider the stage

which a garda enquiry has reached, and his mental or emotional reaction to that enquiry and also enquire as to the state of

knowledge of an accused in the period immediately prior to his confession, and only then, upon an appropriate analysis of

each of these, come to a view as to whether an accused pleaded guilty because he was about to be caught in any event, such

a principle of law would impose a very heavy burden indeed on any sentencing judge. The exercise would have to be carried

out in the case of a plea of guilty accepted by the Applicant before trial, in the case of a plea arising during the course of a

trial, or a plea tendered in advance of a trial where the prosecution nevertheless opts to charge an accused with a more

serious offence than that to which an accused is willing to plead, as here. In each case and at each appropriate stage, the

exercise would have to be undertaken. No jurisprudence has been opened to the court which supports the existence of such

a principle of law. On the other hand, it is a relatively simple exercise to ascertain whether a person has been caught “red

handed”, and in such circumstances, to exercise the discretion against giving any reduction in sentence to an accused, and

there is ample jurisprudence to support the correctness of a refusal to do so in such a case.

Indeed, if it were the case that an accused would be deprived of the benefit attaching to a plea of guilty where it might be

found by a sentencing judge that the Gardaí were – even unknown to the accused – about to arrest him, there would be little

appetite for tendering a plea at all. In the present case it is accepted by the Applicant that the Respondent did not know, and

had no way of knowing, that the Gardaí had found or identified his fingerprints on a plastic bag found with the remains of

the young boy. The fact that they indicated they had a profile of the offender, or the Respondent thought they did, may well

have been a factor in persuading him finally to confess to what he had done. Even assuming a sentencing court were obliged

to take into account possible pressure on an accused to confess to a crime in such circumstances, there was no direct

evidence before the court upon which the learned sentencing judge could have concluded, in the present case, that the

Respondent’s confession was improperly or cynically tendered only because of such pressure.

Having regard to all of the foregoing, this court is satisfied that the learned sentencing judge did not commit any error in

principle, nor did he give undue weight to the plea of guilty to a manslaughter charge on any of the grounds contended for,

which plea was indicated at the earliest possible stage in the proceedings, even prior to the date when the Respondent was in

fact charged with murder.

The Applicant has not established that an unduly lenient sentence was imposed based on this ground.

The Claim that the Learned Sentencing Judge Misdirected Himself as to the Jurisprudence of the Court of

Criminal Appeal

It is contended, finally, that the learned sentencing judge held that the jurisprudence of this court obliged him to impose a

sentence lesser than that required. It is argued that the learned sentencing judge’s remarks that this court had in the past

decimated manslaughter sentences imposed, inter alia, by him and other judges in the High Court, meant that he thereby

imposed an unduly lenient sentence in the present case. It does not follow however from the statement made by the learned

sentencing judge that an unduly lenient sentence thereby ensued. It is just as appropriate to consider the words as indicating

that the learned sentencing judge was reminding himself to be especially vigilant in constructing the appropriate sentence so

that it would not be considered by this court to have been unduly harsh. Moreover, a sentence which avoids being unduly

harsh does not thereby become unduly lenient. This is clear from the jurisprudence set out at the commencement of this

judgment. In the circumstances there is no evidence upon which this Court could conclude that the comments as to the

jurisprudence of this court led the learned sentencing judge to construct a sentence which was, in all the circumstances,

unduly lenient.

This ground is also not established by the Applicant.

The Victim Impact Statement

Finally, although not forming part of the rationale for the decision of this court on the application made pursuant to Section 2

of the Act of 1993, it is appropriate to say something about the role of a victim impact statement, which has been referred to

in the submissions of the Respondent in this application, and which the Respondent pleads is a matter which could and

should be taken into account by this Court in assessing whether or not the sentence handed down was unduly lenient. If this

court had found that the sentence actually imposed was unduly lenient, and was therefore itself obliged to impose an

appropriate sentence, it would have been both possible, and possibly appropriate, for this court to have had regard to the

statements actually made in court and to the adverse publicity flowing therefrom, both of which are invoked on behalf of the

Respondent. However, that is not the position, and this court proposes only to make general comments on the role and

function of a victim impact statement and the approach which a sentencing judge should adopt in relation to the same, in

light of the additional statements made by the mother of the dead boy, by way of addendum to the victim impact statement

which she made in this case.

While the legislature has provided that a victim impact statement may be given by the living victim of a variety of crimes, no

such legislative provision exists for the family or friends of a victim of an unlawful homicide. Nevertheless, a practice has

developed by which a sentencing judge has a discretion to permit a victim impact statement to be made in such

circumstances. In the view of this court, that is as it should be for the reasons, firstly, that such a statement can be of

assistance to the sentencing judge in determining the appropriate sentence to be imposed, and secondly, because it affords

the family or friends of a deceased victim, such as in the present case, an opportunity to express the loss to them arising

from the unlawful homicide.

It is the view of this court that in the event a sentencing judge, in his or her discretion, permits such a victim impact

statement to be made, such a statement should only permitted on strict conditions. In particular, a copy of the intended

victim impact statement should be submitted both to the sentencing judge and to the legal representatives of the accused, it

being assumed that it will already have been made available to the prosecution. This must be done in advance of the reading

or making of the statement itself in court so that both the sentencing judge and the accused’s legal representatives may have

the opportunity of ensuring that it contains nothing untoward. Assuming that the content of the proposed statement meets

this requirement, the person who proposes making the statement should be warned by the sentencing judge that if in the

course of making the statement in court they should depart in any material way from the content of the statement as

submitted, they may be liable to be found to have been in contempt of court. If it be the case that such departure occurs and

involves unfounded or scurrilous allegations against an accused, that fact may be considered by the sentencing judge to be a

matter to be taken into account in mitigation of the sentence to be imposed.

While great sympathy must undoubtedly exist for the person making the victim impact 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, nor to seek to place

in the public domain unfounded or unproven allegations against a convicted person who is awaiting sentence. It is essential

therefore to circumscribe the delivery or making of such victim impact statement. 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.

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, as committed by

the Respondent, as required by the jurisprudence cited at the commencement of this judgment.

Having regard to the foregoing findings of the court, the application made on behalf of the Applicant is, pursuant to Section

2(3) of the Act of 1993, refused.