People (Director of Public Prosecutions) (prosecutor/ applicant) v. Wayne O'Donoghue (accused/prosecutor)
Criminal law - Manslaughter - Sentence - Appeal on grounds of undue leniency - Whether sentencing judge having undue regard to improper matters - Whether sentencing judge failing to have regard to all material factors - Whether sentence unduly lenient - Role of victim impact reports - Criminal Justice Act 1993, section 2 - Criminal Justice Act 1999, section 29(1).
The Court of Criminal Appeal (Ms Justice Macken, Mr Justice O'Donovan and Mr Justice de Valera); judgment delivered October 18th, 2006.
The ambit of the court's jurisdiction on an application pursuant to Section 2 of the 1993 Act is limited. The exercise which the 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 leading to a sentence which was, in all the circumstances, not merely lenient, but unduly lenient.
The Court of Criminal Appeal so held in refusing the prosecutor's appeal for a review of sentence on grounds of undue leniency.
Shane Murphy, SC, and Sean Guerin, BL, for the prosecutor; Blaise O'Carroll, SC, and Tim O'Leary, SC, for the respondent.
Miss Justice Macken delivered the judgment of the court and said that the respondent had been tried before a jury at the Central Criminal Court on a charge that he had murdered a young boy. He was acquitted of murder but found guilty of manslaughter. The sentencing judge sentenced him to four years imprisonment. The prosecutor then applied, pursuant to section 2 of the 1993 Act, for a review of the sentence on the basis that it was unduly lenient.
Miss Justice Macken said that the ambit of the court's jurisdiction on an application of this type is limited. The Court of Criminal Appeal was not permitted to adjudicate on the application by reference to the sentence it would itself have imposed. It was only if the court determined that the sentence was unduly lenient that upon setting it aside, it could impose an alternative sentence. Until then, the exercise which it embarked upon was one of review, namely to determine whether the sentencing judge misdirected himself in law by committing an error in principle, leading to a sentence which was not merely lenient, but unduly lenient.
The principles to be applied in a case which invoked the provisions of section 2 of the Act of 1993 were established in Director of Public Prosecutions v. Byrne [ 1995]1 ILRM 279 which provided, inter alia, that "the onus of proof [ rested on the Director of Public Prosecutions] to show that the sentence . . . was unduly lenient . . . [ and that] nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of the reviewing court".
The prosecutor submitted that the imposition of a four-year sentence constituted a substantial departure from what would be regarded as an appropriate sentence which was due to fundamental errors in principle made by the sentencing judge, which were alleged to be: (1) a failure to have regard to the disparity in age; (2) a failure to have regard to the evidence concerning the injuries; (3) a failure to have sufficient regard to the efforts of the respondent to dispose of and conceal the body of the deceased, or to consider the cover up as a substantial aggravating factor; (4) giving undue weight to the respondent's plea of guilty and to his co-operation with the gardaí; (5) the misdirection as to the jurisprudence of the Court of Criminal Appeal in considering that he was obliged to impose a sentence as lenient as that imposed.
In relation to the alleged failure to have regard to the disparity in age, the court said that whilst the sentencing judge did not refer to disparity in age, no evidence was sought by the prosecutor as to the significance, if any, of an age disparity between the respondent and the deceased.
It was also contended that the 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 boy, also did not loom large in the trial and the sentencing judge could not be criticised for failing to take such disparity into account for the purpose of sentence. On that first ground, the court was not persuaded that the prosecutor had shown that there was any error in principle.
In relation to the ground that there had been a failure to consider sufficiently the evidence as to injuries, Miss Justice Macken said that it was based on a threefold argument, namely, that the sentencing judge failed to have sufficient regard to the fact that not all the injuries were consistent with a restraining technique employed by police forces in the United States and to the evidence concerning the pattern of bruising consistent with gripping the neck in a manner consistent with strangulation; and not consistent with injuries "at the horseplay end of the scale".
Miss Justice Macken stated that unless there was an obvious and material error in the conclusions drawn by a sentencing judge from the evidence, i.e. a "manifest error", he was not to be criticised for choosing some or other of the evidence of one expert over that of another as being an appropriate basis upon which to proceed, particularly where 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 the respondent's expert, on the pattern or extent of injuries found, or more pertinently, on the consequences flowing from them, the trial judge did not stray beyond what he was entitled to do. Miss Justice Macken said that the court also found that the conclusions of the sentencing judge were clearly based on the evidence before the court. His conclusions from the evidence that the actions of the respondent could be set at the "horseplay end of things" was not inconsistent with the description of the same action in the evidence as being "dangerous". Therefore, the sentencing judge did not commit any error 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 was based on that ground, did not satisfy the applicable test as to a review of sentence.
The third ground asserted that an aggravating factor which the sentencing judge ought to have taken into account, but did not, was the cover up by the respondent. On the face of the judgment on sentence, it was a matter which was taken into account. The issue for consideration was in reality whether it should be implied that this factor was nevertheless not adequately taken into consideration, having regard to the sentence imposed. Miss Justice Macken referred to People (DPP) v. Gilligan 3 IR 87, in which the English jurisprudence on the issue was considered. While a sentencing judge could take into account appropriate surrounding circumstances, even those of a cover-up, nevertheless, if, as the jurisprudence recommended, a sentencing judge had to scrupulously respect the appropriate dividing line, he could not be criticised for doing so in the present case, especially when, on the face of the judgment, he had not been blinkered as to the surrounding facts, and the cover-up had been taken into account as part of the impact on the boy's family. The prosecutor had not established that the sentencing judge committed any error in principle in the manner in which he took account of the cover-up, and that ground was therefore not established.
Next, it was argued on the part of the prosecutor that undue weight was given to the respondent's plea of guilty, the basis for which was the claim that the sentencing judge failed to have proper regard to matters, including: (a) the evidence concerning concealment of the body and his involvement in the death; (b) the stage in the inquiries 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 made statements denying his involvement in the death. The prosecutor invoked section 29(1) of the 1999 Act which provides: "in determining which sentence to pass on a person who has pleaded guilty to an offence . . . a court, if . . . appropriate . . . shall take 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." Miss Justice Macken said that the provision was concerned only with criminal proceedings which had commenced. It referred to the "stage in the proceedings" at which the guilty plea was tendered, which could only be after they were in being.
It was also submitted that the sentencing judge failed to have regard to the behaviour of the respondent before any proceedings commenced, as part of "the circumstances in which the indication of a plea was given", within section 29(1)(b) of the 1999 Act. However, the "indication" in that subsection was a reference to the indication referred to in the earlier subsection, which in turn was limited to "proceedings", so that argument was not of assistance to the prosecutor. Miss Justice Macken said that if the general principle of law were, as contended by the prosecutor, that a sentencing judge would have to consider the stage which a Garda enquiry had reached, the accused's mental or emotional reaction to that enquiry and also enquire as to his state of knowledge 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 on any sentencing judge. No jurisprudence had been opened which supported such a principle of law. On the other hand, it was a relatively simple exercise to ascertain whether a person had been caught "red handed", and in such circumstances, to exercise the discretion against giving any reduction in sentence to an accused, and there was 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, according to Miss Justice Macken. 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 upon which the sentencing judge could have concluded that the respondent's confession was improperly or cynically tendered only because of such pressure, it having been accepted that the respondent did not know that the Gardaí had identified his fingerprints.
Having regard to all of the foregoing, Miss Justice Macken was satisfied that the sentencing judge did not commit any error in principle, nor did he give undue weight to the plea of guilty to manslaughter, which was indicated at the earliest possible stage, even prior to the date when the respondent was charged with murder, on any of the grounds contended for.
It was contended, finally, that the sentencing judge held that the jurisprudence of the Court of Criminal Appeal obliged him to impose a sentence lesser than that required. It was argued that the judge's remarks that the Court of Criminal Appeal had in the past decimated manslaughter sentences imposed in the High Court meant that he thereby imposed an unduly lenient sentence in the present case. However, Miss Justice Macken said that a sentence which avoided being unduly harsh did not thereby become unduly lenient. There was no evidence that the comments as to the jurisprudence led the sentencing judge to construct a sentence which was unduly lenient and that ground was also not established by the prosecutor.
Although not forming part of the rationale for the decision on the application pursuant to the Act of 1993, Miss Justice Macken addressed the role of a victim impact statement, which the respondent pleaded was a matter which should be taken into account in assessing whether the sentence was unduly lenient.
It was the view of the court that if a sentencing judge permitted such a victim impact statement, it should only be permitted on strict conditions to ensure that the statement was 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 was awaiting sentence. In particular, a copy of the intended statement should be submitted both to the sentencing judge and to the legal representatives of the accused in advance of the making of the statement in court so that they both could have the opportunity of ensuring that it contained nothing untoward. Assuming that the content of the proposed statement met that requirement, the person who proposed making it should be warned by the sentencing judge that if in the course of making it in court they departed in any material way from the content of the statement as submitted, they could be liable to be found in contempt of court. If such departure occurred and involved unfounded or scurrilous allegations against an accused, that could be considered by the sentencing judge as a matter to be taken into account in mitigation of the sentence. Miss Justice Macken was satisfied that the 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.
Having regard to the foregoing findings, the application on behalf of the prosecutor was refused.
Solicitors: Chief Prosecution Solicitor for the prosecutor; Frank Buttimer & Co (Cork) for the respondent.
Paul Christopher, barrister