The mother of Midleton schoolboy Robert Holohan has urged the Director of Public Prosecutions to go to a higher court and appeal against the leniency of the four-year sentence handed down to Wayne O'Donoghue this week for killing her son.
Majella Holohan wrote yesterday to the DPP, James Hamilton, outlining why she believes the sentence imposed by Mr Justice Paul Carney was too light.
The Irish Times has also learned that Ms Holohan has asked the DPP to explain why other charges relating to O'Donoghue's cover-up after killing Robert on January 4th, 2005, were not levelled against him by the State.
In handing down the sentence at the Central Criminal Court in Ennis last Tuesday, Mr Justice Carney described O'Donoghue's failure to come forward as "appalling".
He pointed out that this could have formed the basis of separate substantive charges, but the DPP had opted not to make them.
The grounds on which it is open to the DPP to go to the Court of Criminal Appeal seeking a more severe sentence are quite limited.
Dr Shane Kilcommins, lecturer in criminal law at University College Cork, said the DPP's ability to successfully appeal unduly lenient sentences had been curtailed by a series of judgments.
"These judgments have set the bar quite high regarding the alteration upwards of a trial judge's sentence," he said.
"The required threshold demands that the DPP demonstrate 'a clear divergence by the court of trial from the norm', an 'error in principle', or a 'substantial departure from what would be regarded as an appropriate sentence'," he explained.
"There are sound reasons for requiring such a threshold. A three-judge Court of Criminal Appeal is an appellate court which examines the decision 'cold' in that it only receives a transcript of the evidence.
"It does not have the opportunity, as a trial judge does, to observe the testimony of witnesses in examination-in-chief and in cross-examination.
"The trial judge therefore is in the best position to select the appropriate penal disposal having regard to the offence committed and the personal circumstances of the offender."
Dr Kilcommins stressed that the arguments that the DPP can make in relation to undue leniency in an appeal only relate to the offence of manslaughter and to facts adduced in evidence in the trial case.
Allegations of other forms of impropriety cannot be introduced, and it may be open for the defence to argue that the sentence was not unduly lenient having regard to all the circumstances.
These circumstances include the de jure four-year sentence but also the de facto ancillary punishment of being labelled and stigmatised about other matters that have been raised without criminal proof, he added.
Dr Kilcommins noted that O'Donoghue's counsel, Blaise O'Carroll SC, referred to this when he said his client's name had been "blackened and traduced", and this might also be considered by the appeal court if the sentence was to be appealed.
Meanwhile, O'Donoghue's solicitor, Frank Buttimer, said he had received no request to date from coroner for south Cork Frank O'Connell for his client to attend an inquest into Robert's death.
Mr Buttimer said it would be highly unusual for a person found guilty of an unlawful killing to be requested to attend the inquest but his client would consider such a request if he received one.
He said the sentencing of his client should have brought the trial to a conclusion. "It's now becoming a trial by media and public opinion," he said.
