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THE COURT OF APPEAL
Record No: 149/2024
Edwards J. Neutral Citation Number [2025] IECA 105
McCarthy J.
Burns J.
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
Between/
THE PEOPLE (AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS)
Applicant
V
EMMET RIGNEY
Respondent
JUDGMENT of the Court delivered by Mr. Justice Edwards on the 3rd day of April, 2025.
Introduction
1. This is an application brought by the Director of Public Prosecutions (i.e., "the applicant" or "the Director") pursuant to s. 2 of the Criminal Justice Act 1993 ("the Act of 1993") for review of the sentence imposed on Emmet Rigney (i.e., "the respondent") by the Circuit Court on grounds that it was unduly lenient.
2. The respondent was charged with a single count of dangerous driving causing serious bodily injury arising contrary to s. 53(1) of the Road Traffic Act, 1961 as substituted by s. 4 of the Road Traffic (No. 2) Act, 2011. On the 28th of April 2023 Mr. Rigney entered an early plea of guilty in regard to this offence.
3. The respondent was sentenced to two years imprisonment, fully suspended for two years. The sentencing judge imposed a condition on this sentence that the respondent pay €10,000 to the victim's parents for her benefit within 6 months of the sentencing hearing. Mr. Rigney also received a 6-year disqualification from driving.
4. By a Notice of Application for Review of Sentence lodged the 20th of May 2024, the Director has advanced 4 grounds in support of this application as follows:
1. "The learned sentencing judge erred in principle by fixing the headline sentence at a point which did not involve a sufficient element of punishment by reference to the gravity of the offence.
2. The learned sentencing judge erred in principle by failing to attach sufficient weight to the following:
i. The evidence of racing or competitive driving
ii. The evidence of overtaking on a bend
iii. The devasting injuries to the young child who was injured
3. The learned sentencing judge erred in principal in suspending the entire period of custody thereby failing adequately to reflect the seriousness of the offending behaviour, notwithstanding the mitigating circumstances.
4. The learned sentencing judge erred in principal in failing to impose a sentence which contained a sufficient element of deterrence either specifically for this accused or more particularly and indeed especially to drivers in general."
Factual Background
5. At the sentencing hearing of the 26th of April 2024, a Garda Paul Monaghan gave evidence in relation to the factual background of the dangerous driving causing serious injury offence.
6. On the 14th of August 2021, a road traffic collision occurred at Ballingarry, Co. Tipperary between two vehicles. The first vehicle was an Audi A4 and was driven by the respondent. There were two passengers in the rear of this car: a Ms. Megan Behan and a Mr. Joe Corrigan. The Audi A4 was travelling from Borrisokane towards Birr on the N52.
7. The second vehicle was an Opal crew cab van, and was driven by a Mr. MK. Mr. MK had his two children in the rear of the vehicle: K who was 11 years of age and E (i.e., "the victim") who was 5 years of age. E was seated in a child seat in the back of this vehicle, which was travelling from Birr to Borrisokane on the N52.
8. Garda Monaghan stated in evidence that Mr. MK's account of the accident as provided in a statement made by him to gardaí was as follows:
"I travel a lot on this road, and I know at around 1pm, I think, it was the time I was driving along the road after Ballingarry when I saw a car driving fast. There were three cars coming towards me. It looked like they were racing. The first car was coming at speed. He was on his side of the road, then the back of his car was coming out on my side. He tried to avoid me but it was too late. He was driving too fast and it was a slippery road. I could do nothing when he came towards me, it was too late, he hit me head on. His speed for the weather conditions was too fast, it was wet and misty weather ... ."
9. Garda Monaghan's evidence was that Mr. MK had gone on to state to gardaí that in the immediate aftermath the respondent had stated to him, "Sorry, I lose control, the road is slippy".
10. Garda Monaghan also gave evidence that Ms. Megan Behan, a rear seat passenger in the respondent's vehicle, had provided the following account to gardaí as to her recollection of what had occurred:
"When we got to Ballingarry, just before we crashed, the lads had gone round the bend and we got to a straight stretch. Emmett passed out Gavin's car. Gavin's car was behind us then and Cathal's car was now in front. Emmett then overtook Cathal's car straightaway. I'm not sure if he even went back onto the right side of the road after overtaking Gavin's car. I think he may have overtaken both at the same time, I'm not sure. We were coming to a bend and Emmet tried to get back on the right side of the road in front of Cathal's car. Just as we got to the corner, I could see the lights of the van coming for us. I heard Emmett scream 'fuck', and I looked up and I seen the two headlights of the van. That's all I remember."
11. The garda further testified that an account provided to gardaí by the second rear seat passenger in the respondent's vehicle, Mr. Joe Corrigan, had stated:
"I remember the crash between our car and an oncoming van. It was head on. Around 500 metres before the crash, Emmett overtook Cathal Molloy. This was on a straight stretch of road. I remember Cathal wasn't travelling fast. Coming into the next bend, which is to the left, there is a slip road off to the right. I told Emmett to slow down. I remembered this road to be dangerously bendy. I felt Emmett was going too fast for this part of the road. The next I remember is seeing lights and then there was a loud bang."
12. The sentencing court heard that the collision was investigated by a forensic collision investigator, and his report, with maps and photographs annexed, had formed part of the Book of Evidence. The Book of Evidence was before the sentencing judge. However, the forensic collision investigator was not called as a witness at the sentencing. Rather, as had occurred in the case of the lay witnesses to the incident who had provided statements to gardaí, Garda Monaghan summarized what this witness's evidence would have been had the matter gone to trial, based on the report that he had provided. The judge was invited by prosecuting counsel to consider certain maps and photographs annexed to the forensic collision investigator's report, and therefore forming part of the Book of Evidence, as an aid to following the evidence being elicited from Garda Monaghan.
13. Maps and photographs referenced during the hearing in the court below showed that the incident occurred on the N52, a two-way single carriageway road, at a junction between that road and a more minor road (the L1069) leading to the townsland of Lisadonagh. It is in effect a "Y" junction with the minor road leading to Lisadonagh, forming the right-hand branch of the "Y"; and the N52 forming the approach to the bifurcation as one is coming from Borrisokane towards Birr, and then bending to the left and continuing on towards Birr, forming the left-hand branch of the "Y". The approach to the bend and junction (from the Borrisokane side) was a lengthy straight stretch of road (c 800 metres long) governed for the most part by a broken white line. However, in the final approach to both the bend and junction there were dual centre of the road markings, comprising in the east bound approach to the bend a combination of a continuous white line prohibiting overtaking by east bound traffic (i.e., coming from Borrisokane towards Birr) and a broken white line governing traffic coming from the other direction heading towards Borrisokane, permitting overtaking by such traffic once past the junction. Moreover, as one approached the junction along the N52 from the Borrisokane side (i.e., eastbound) there were yellow and black chevron signs to indicate the severity of the left-hand bend ahead.
14. Garda Monaghan testified that the forensic collision investigator had reported that the N52 is a national secondary road, with a speed limit of 80 kilometres per hour on the stretch of road where the collision occurred. The investigator had reported that at the time of the collision, approximately 23:40 hours, on Saturday the 14th of August 2021, it was dark, the road surface was wet, and there was possibly mist or drizzle in the area which may have affected visibility. There was no street lighting, pavements or CCTV at the accident locus. The investigator had further reported that there were witnesses to the collision who provided statements that in his assessment did not contradict the physical evidence at the scene or the vehicles. The road surface consisted of tar and chip surface in good condition, which was free from contaminants. Further, he had reported that the N52 has clear signage and clearly marked road paint at the collision locus.
15. Garda Monaghan quoted verbatim in the course of his evidence the following passage from the forensic collision investigator's report:
"Both vehicles were carrying two passengers at the time of the collision, with the passenger in the rear near side seat of the Opel Vivaro sustaining a serious head injury. The Opel Vivaro was heading west on Ballingarry on the N52 with the Audi travelling in the opposite direction towards Borrisokane. The speed at which each vehicle was travelling was unknown. The Audi was on the incorrect side of the continuous white centre line and it collided head on with the Opel on a left bend. The contact between the vehicle was offset head-on with the area of crush on the near side front passenger seat of each vehicle. The area of impact on the road surface was closer to the edge of the road than the centre line into the westbound Borrisokane-bound lane. This places the Audi completely on the incorrect side of the road when the collision occurred. The resting position of the Audi indicates the driver may have attempted to steer off the road, out of the bend completely in order to avoid the collision. The location where the Audi crossed the central line on to the incorrect side of the road is unknown. The 800-metre line centre to the road, prior to the left bend, was suitable for overtaking if it were safe to do so. There were no pre collision defects in either the Opel or the Audi that could have been a factor in the collision. There were no evidence of pre collision braking by either vehicle. It is unknown if the driver or off side rear seat passenger of the Opel were wearing a seat belt when the collision occurred. The injured passenger of the Opel was in a child's seat. It is unknown how securely the child's seat was in place, held by the vehicle's seat belt or how tight the actual child's seat harness were when the collision occurred. The driver of the Audi was wearing a seatbelt, but it is unknown whether his passengers were wearing seatbelts."
16. Mr. MK's daughter, E, suffered serious injuries as a result of this collision. E was taken by ambulance from the scene to University Hospital Limerick and was subsequently transferred to Children's Health Ireland, Temple Street Hospital ("CHI Temple Street") in Dublin. A medical report from a Dr. Caird, Consultant Paediatric Neurosurgeon, set out that due to E's traumatic brain injury, she required decompressive surgery and a period of observation in Temple Street Hospital's intensive care unit.
17. A summary of E's injuries was provided to the court below in a medical report of a Dr. Gill, Consultant Paediatrician, which stated that she suffered a very severe traumatic brain injury as a result of the road traffic accident. This led to a prolonged acute admission to CHI Temple Street for surgical rehabilitation care and subsequent admission to the National Rehabilitation Hospital ("NRH") and an ongoing requirement for support from specialist disability services in the NRH and at community level. As a result of this brain injury, E experienced a significant acquired disability. This affects her in the domains of movement, sensation, communication, learning behaviour and emotions. As a result of these impairments, she has experienced restrictions in participation in school, leisure, self-care and home activities. Her independence has been significantly reduced. While there were some minor issues reported in relation to her communication, the difficulties she is currently experiencing are different to those previously identified and are a direct result of her brain injury. It is fair to characterise E's injuries as having been life changing.
18. The respondent remained at the scene and provided a breath sample to gardaí which came back negative for the presence of alcohol and drugs. The respondent was then taken to hospital by his mother. During the course of his admission, gardaí attended and recovered his mobile phone. A full analysis of his mobile phone was carried out, which showed that his phone was not in use at the time of the accident.
19. On the 11th of December 2021, the respondent attended Nenagh Garda Station for the purpose of being formally arrested and detained, and then being interviewed while in detention. He was forthcoming with answers during his interviews, but based many of them on a pre-prepared statement that he had brought with him. In that statement he described perceived difficulties with the steering of his car as he approached the bend which he contended had caused him to veer across the road, and that he had then tried to take evasive action by heading for the offside ditch but was unable to avoid the collision. Be that as it may, the respondent accepts at this point that no defect that could explain the accident was found during an examination of his vehicle in the course of the forensic collision investigation.
Victim Impact Statement
20. The victim's mother was present during the sentencing hearing and gave victim impact evidence as follows:
"[E] attends on occupational therapy at the moment, physiotherapy, equine therapy, rehabilitation in the pool, speech and language therapy, play therapy. I organised a few charity collections, fundraising, for [E]. I used the money from the collections for the child rehabilitation, physiotherapy equipment, private lessons, rehabilitation ... in Poland, and toys, logic games, sensory, manual games. All this is aimed at improving my daughter's health and making her independent. Her rehabilitation will probably be lifelong. This accident turned my life upside down. It had a destructive impact on my family members. My partner temporarily left his job and he cannot return to it. He spent six months with me, our daughter and my son in Dublin. He supported me and helped me in every way. He was there during each of [E's] surgeries. We had many problems during this period, checking no financial income, temporary school for [K], weekly travels from Dublin to Kerry because he had to pick up his jobseeker allowance. I must point out that at the time of accident, I was six months pregnant. Our common child was born in extreme conditions. It was difficult for us to enjoy motherhood at the moment when [E] was in a very serious condition. Our emotional state and lack of means of subsistence caused constant conflict between me and my partner. We had to sell the car and fight to survive every day in such an expensive city as Dublin. We were forced to ask my mother, my mother in law and two of my sisters for help. They all came to Ireland from Poland to help us, to help [E]. [E's] and [K's] father has not helped us since the accident until now. He is also not involved in his child's rehabilitation and does not help in organising money for rehabilitation. The trauma caused by the accident forced me and my partner to undergo several psychological consultations. After the accident, our lives will never return to the state they were in before the accident. Our common children [A] and [N] also suffered from this. We were not able to devote the same time and attention to them as [E], due to financial problems and the costs related to [E's] rehabilitation. I returned to work part time this year. My physical and mental conditions is not the best. The wonderful life we had until the day of the accident was taken away from us, and the life [E] could have had was taken away from her. She no longer runs on the playground with other children. She can't do it. She doesn't catch the ball, she can't do it. She doesn't ride a scooter or bike, she can't do it. Will she ever be independent? I don't know. Will she ever get married and start a family? I don't know. Will she finish some school? I don't know. [E's] future and the comfort of her life are unknown. I fight for [E] every day and I won't give up as long as my health allows."
Personal Circumstances of the Respondent
21. The respondent was born on the 25th of September 2002 (which meant that he was not quite 19 years of age at the date of the collision), and lived with his family in Shinrone, County Offaly. He has four siblings, two older brothers and two older sisters, and he was supported at the sentencing hearing by his parents and his partner.
22. The respondent left school at 18 years of age having completed his leaving certificate. From age 16 the respondent had engaged in contract summer work on farms driving machinery, and in assisting his father on the home farm. After sitting his leaving certificate, he had secured employment as an apprentice HGV mechanic in Garahy's Garage in Birr. The proprietor of that garage provided a testimonial to the court below confirming that he had proved to be a good and valued employee. A testimonial to similar effect was also provided by the agricultural contractor for whom he had previously worked.
23. The respondent prepared and read out at the sentencing hearing a letter of apology addressed to the parents of E, and which he had sent to them. The sentencing court was told that while E's parents did receive the letter, they are not willing to accept the apology tendered.
24. Garda Monaghan clarified that the respondent has no previous convictions. He had never come to garda notice before the accident, nor since, and there was no evidence of any other dangerous or irresponsible driving on the part of Mr. Rigney on the evening in question, prior to the commencement of the overtaking manoeuvre which had culminated in the collision.
25. It was accepted by the prosecution that the respondent had, through his solicitor, intimated at an early stage his intention to plead guilty to dangerous driving causing serious injury, and had followed through on that. The plea was entered in advance of the trial date.
26. At the time of the accident the respondent had a full clean driving licence and was fully insured to drive the vehicle which he was driving at the time of the collision.
27. A medical report from the respondent's G.P., a Dr. Booth, and a letter from the coach of his local rugby club submitted to the court below also testified to the respondent's otherwise pro-social demeanour and positive contributions that he had made in the past to his community. Dr Booth reported that the respondent had consulted him for low mood experienced since the accident and that he had had to prescribe him with medication for this. In setting out the medical history the doctor characterised him as appearing "to be very remorseful in relation to what happened."
28. We should observe in passing, as it is relevant to this, that at the conclusion of submissions on the oral hearing of this undue leniency application, this Court, as it usually does, invited counsel on both sides to submit to us on a contingent basis any up to date information that they would wish the Court to take into account in the event that the Court considers it necessary to intervene and re-sentence. We were advised, inter alia, that the respondent has recently suffered a significant mental breakdown, as a consequence of which he has now left his employment.
Probation Report
29. A Probation Report had been requested and prepared in advance of the sentencing hearing in the court below. The sentencing court was provided with a report dated the 5th of April 2024. The report noted that:
"Mr Rigney accepted that he was driving too fast for the conditions of the day and that his behaviour caused the collision. He displayed a genuine sense of regret and remorse in relation to the harm he caused to the passengers of the car and became emotional at times when thinking of the victims who were harmed as a result of his behaviour."
30. The report characterised him as speaking with shame and regret when discussing the harm that he had caused. He had described sleepless nights on that account, and had exhibited appropriate awareness that the incident could have resulted in even more significant harm, with perhaps even fatal results. Fortunately, it did not. His awareness was noted to extend to being also upset and ashamed that he had put his own friends' safety at risk in addition to that of the persons in the other vehicle, and that he had also caused distress to his own parents and family.
31. In conclusion the report noted that the respondent appeared to have good insight into his behaviour and how dangerous it was, for which he had expressed remorse and shame. He had also displayed a good sense of victim awareness and had offered his apologies to all those harmed by his actions. He had presented as a polite quiet young man with general pro- social values and a good work ethic, and had fully cooperated with the probation service for the preparation of the report. He was regarded as being at a low risk of reoffending due to the existence of a number of protective factors, which included his lack of previous offences, his training and employment status, his lack of mental health and addiction issues and his supportive and pro-social support network. Due to his low-risk status, the Probation Officer requested that the court might dispose of the matter without further recourse to the Probation Service.
Sentencing Judge's Remarks
32. On the 26th of April 2024, the judge in the court below passed sentence on the respondent. The sentencing judge noted the factual background of the case as described by Garda Monaghan.
33. The sentencing judge then identified the relevant aggravating factors at play in this case as follows:
"What happened on this particular occasion is that you overtook another car on a bend in bad conditions at speed, and that is the level of your culpability. As Mr Cody has pointed out, there were no other aggravating factors as sometimes appear in these type of cases, such as alcohol. There was no alcohol, no use of a mobile phone or no prolonged, persistent, aggressive driving. However, the harm done was devastating to [E] and her family. I note I've read the victim impact report from [E's] mother, and clearly she has gone to extraordinary efforts to provide the best for her child. [E] has attended at occupational therapy, physiotherapy, equine therapy, rehabilitation in the pool, speech and language therapy, and her mother has also organised charity events to raise money and that she really -- it is clear that she is a mother trying to do the very best for her child in extremely difficult circumstances. In my view, particularly because of the harm caused, this brings the sentence within the lower end of the mid-range, and I would put the sentence at three and a half years."
34. In relation to mitigation, the sentencing judge made the following remarks:
"The mitigating factors are clearly significant. You're a young man of 21 years of age. I note that you remained at the scene of the accident. As previously stated, there is no evidence of alcohol or drugs, no evidence of using a mobile phone. You were fully insured and had a driving license. Your plea today will guarantee that the insurance company will pay for substantial amounts of money to assist [E] going forward in the future with her life and assisting her with her disability. I note that you're a first-time offender, you've no previous convictions. I note you fully cooperated with An Garda Síochána. You pleaded guilty at the very earliest opportunity. I note you haven't come to garda attention since. You expressed remorse from a very early stage and sent a letter of apology to the unfortunate [E's] family, and I believe you are truly remorseful. You have given evidence in the box today, and I think you have said that you think about [E] every single day and her family. I note you were -- co operated fully with the probation service. The probation officer has said that you have shown insight into your behaviour, and that you have a very good sense of victim awareness. I note that you have been assessed at a low risk of re offending. You are somebody who had some ability, you've completed your leaving cert, you are training as a mechanic and you clearly have a good work ethic. I've read the letter from your doctor, Dr Booth, who confirms that you're a very quiet young man, who's always cooperative and polite, and that this accident had a huge psychological effect on you, which has caused you difficulty in sleeping, eating and obsessed, really, I suppose, or constant concern for the victim in this case. I note that you have worked with -- you work with Garahy's Garage as an apprentice and your employer says that you're highly trustworthy, very organised and reliable and you're a qualified tachograph technician, and you're of value to him. I note I've also read a reference from DGT O'Brien Brothers Agri Limited, where you've worked for five years. You started working there from school at a very early age. I note he says you are a person of exceptional character and reputation, honest, reliable, with a high level of integrity and dedication."
35. The sentencing judge nominated a headline sentence of three and a half year's imprisonment, which he was prepared to discount to a post-mitigation sentence of two years imprisonment, fully suspended for a period of two years. Apart from the standard requirement to keep the peace and be of good behaviour, the respondent was required as a condition of the suspension of the sentence to pay €10,000 to the victim's parents for her benefit within a period of six months from the date of the sentencing hearing. The sentencing judge emphasised that this was to assist the victim in circumstances where her family were "clearly in financial difficulty until their civil action is settled and they receive substantial money going forward for [E]", having had to temporarily relocate to Dublin and spend months at E's bedside during her acute hospital treatment and subsequent rehabilitation. The respondent was also disqualified from driving for a period of 6 years.
Submissions on Appeal
Appellant's Submissions
36. It was submitted on behalf of the applicant that the sentence imposed should be reviewed in circumstances where:
(i) "It did not contain a sufficient element of punishment for the driving involved
(ii) The sentence imposed did not contain any immediate custodial element and is therefore not a sufficient deterrent. There is a pressing requirement for deterrent from racing for drivers in general, including other young drivers who may be tempted to race.
(iii) The assessment of the driving as being at the lower end of the mid range was wrong in principle by reference to the racing/competitive driving, overtaking on a bend and the consequences including the devastating injuries to a young child.
(iv) The learned Judge wrongly determined that there was sufficient element of punishment by reference to a lengthy period of disqualification and payment of compensation."
37. The applicant referred us to People (DPP) v. Muiris Flynn [2020] IECA 294 and People (DPP) v. James Doyle [2024] IECA 130 in support of these submissions.
Respondent's Submissions
38. Counsel for the respondent submitted that while the fact that his client was driving on the wrong side of the road at the time of the collision does not detract from the dangerousness of his approaching the bend at an inappropriate speed in a misjudged overtaking manoeuvre, equally it does not aggravate the offence.
39. It was submitted that the only evidence suggestive of racing had been the assertion in Mr. MK's statement to gardaí that "it looked like they were racing". While counsel for the respondent had acknowledged in his plea in mitigation that that "may well have been his [i.e., Mr. MK's] perception at the time", it was made clear to the sentencing judge that the respondent had pleaded on the basis of acceptance of having "made a very grave error of judgment" in attempting to overtake another car at speed when approaching a left hand bend, a manoeuvre which it was accepted had been dangerous. Mr. MK, who was not called to give evidence, had seemingly just exited the bend in question himself from the other direction and, facing an immediate emergency and the need to react to it as best he could, would have had only a momentary opportunity to assess what had likely precipitated it. None of the other witnesses interviewed by gardaí had suggested that there was racing in the lead up to the bend. Garda Monaghan, who was the only witness as to the circumstances called by the prosecution had accepted in cross-examination that the driving in question that had led to this prosecution "was the driving and manoeuvre that was attempted by Mr Rigney before ... the bend in question on the N52". He also accepted that there was no evidence of aggressive or competitive driving by the respondent at any point up to that on his journey. In his plea in mitigation counsel for the respondent asked the sentencing judge to look at the respondent's error "in its context". The sentencing judge found that, "[w]hat happened on this particular occasion is that you overtook another car on a bend in bad conditions at speed, and that is the level of your culpability." Tellingly, the sentencing judge had made no finding of racing.
40. It was submitted that the respondent's crossing of the continuous white centre line in the final lead up to the bend, a matter pointed to by the applicant as having been aggravating, was encompassed in the dangerousness of approaching the bend at too great a speed in the course of a misjudged overtaking manoeuvre, that it was in the circumstances part of a single instance of (dangerous, it was accepted) driving misjudgement, but was not an independent or standalone feature of the case.
41. It was submitted that the submissions of the Director failed to identify why specific deterrence in this case required actual time to be served in custody, other than the contested suggestion by one witness who had provided a statement to gardaí, that in his perception there had been racing. It was further submitted that in pressing the need for general deterrence the Director had identified a pressing requirement to deter young drivers who may be tempted to race, notwithstanding that there had been no actual finding by the sentencing judge that there had been racing in this case.
Discussion
Reviews for Possible Undue Leniency
42. The jurisdiction to review a sentence for possible undue leniency is to be found in s. 2 of the Criminal Justice Act 1993, as amended, which provides (to the extent relevant):
"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 Appeal to review the sentence.
(2) An application under this section shall be made, on notice given to the convicted person, within 28 days, or such longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine, from the day on which the sentence was imposed.
(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."
43. The jurisdiction so created has been considered and interpreted in a number of decisions of the former Court of Criminal Appeal ("CCA"), including People (DPP) v. Byrne [1995] 1 ILRM 279; People (DPP) v. McCormack [2000] 4 I.R. 356; People (DPP) v. Redmond [2001] 3 I.R. 390 and People (DPP) v. Stronge [2011] IECCA 79. This jurisprudence is considered well settled and has been consistently applied by this Court since its establishment in 2014.
44. In Byrne the CCA set out the following principles as applicable:
(1) "The DPP bears the onus of proof in showing that the sentence was unduly lenient.
(2) The appeal court should always accord great weight to the trial judge's reasons for imposing the challenged sentence.
(3) It is unlikely to be of help to the appeal court to ask if, in the event that a more severe sentence had been imposed, it would have been upheld in a defence appeal based on error of principle. Different criteria applied to prosecution appeals.
(4) It is clear from the wording of s.2 of the Act of 1993 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 appeal court's intervention."
45. In McCormack the CCA added:
"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 of principle.
Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts but also upon 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 those 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."
46. In the Redmond case, the CCA emphasised that:
"the prosecutor must show, rather than simply assert, that the sentence was unduly lenient in this must be done on the basis of specific submissions, whether of law or a fact" (emphasis per original)
47. More recently, in the Stronge case, McKechnie J, in endeavouring to synthesise a comprehensive set of principles from the authorities just referenced, restated them in the following slightly different form:
"the following principles can be said to apply in an application for review under s. 2 of the 1993 Act. These are:-
(i) the onus of proving undue leniency is on the D.P.P.;
(ii) to establish undue leniency it must be proved that the sentence imposed constituted a substantial or gross departure from what would be the appropriate sentence in the circumstances. There must be a clear divergence and discernible difference between the latter and the former;
(iii) in the absence of guidelines or specified tariffs for individual offences, such departure will not be established unless the sentence imposed falls outside the ambit or scope of sentence which is within the judge's discretion to impose: sentencing is not capable of mathematical structuring and the trial judge must have a margin within which to operate;
(iv) this task is not enhanced by the application of principles appropriate to an appeal against severity of sentence. The test under s. 2 is not the converse to the test on such appeal;
(v) the fact that the appellate court disagrees with the sentence imposed is not sufficient to justify intervention. Nor is the fact that if such court was the trial court a more severe sentence would have been imposed. The function of each court is quite different: on a s. 2 application it is truly one of review and not otherwise;
(vi) it is necessary for the divergence between that imposed and that which ought to have been imposed to amount to an error of principle, before intervention is justified; and finally
(vii) due and proper regard must be accorded to the trial judge's reasons for the imposition of sentence, as it is that judge who receives, evaluates and considers at first hand the evidence and submissions so made."
Sentencing for Dangerous Driving Causing Serious Bodily Injury
48. Dangerous driving is a statutory offence arising under s. 53 of the Road Traffic Act 1961. It is prosecutable summarily unless the harm done involves the causation of death or, as in this case, serious bodily harm to another person, in which case it is prosecutable only on indictment. Different penalty ranges apply depending on whether it is being prosecuted summarily or on indictment. The relevant provision provides:
"53.—(1) A person shall not drive a vehicle in a manner (including speed) which having regard to all the circumstances of the case (including the condition of the vehicle, the nature, condition and use of the place in which it is driven and the amount of traffic which then actually is or might reasonably be expected then to be in it) is or is likely to be dangerous to the public.
(2) A person who contravenes subsection (1) commits an offence and—
(a) in case the contravention causes death or serious bodily harm to another person, he or she is liable on conviction on indictment to imprisonment for a term not exceeding 10 years or to a fine not exceeding €20,000 or to both, and
(b) in any other case, he or she is liable on summary conviction to a class A fine or to imprisonment for a term not exceeding 6 months or to both."
49. Importantly, it was held in Attorney General (Ward) v. Thornton [1964] I.R. 458 that dangerous driving and dangerous driving causing death/serious bodily harm are not separate offences. Rather, they are a single offence albeit with alternative modes of prosecution (i.e., summarily or on indictment), with the prosecutor being required to elect as to which one to pursue.
Intrinsic culpability
50. The standard of driving which can constitute dangerous driving is, per Judge Barra O'Brian in People (Attorney General) v. Quinlan (1962) ILT & SJ 123 and (1963) 219, as approved by the Supreme Court in DPP v. O'Shea [2017] 3 I.R. 684 [at para 28]:
"driving in a manner which a reasonably prudent man, having regard to all the circumstances, would recognize as involving a direct, immediate and serious risk to the public."
51. There is no requirement for the prosecution to prove that the accused adverted to that risk. The test is objective. Therefore dangerous driving, whether causing death/serious bodily harm or not, entails a lower degree of negligence than gross negligence manslaughter, a point made with some emphasis by McKechnie J in the Stronge case.
52. That having been said, it is frequently the case that the intrinsic culpability of an offender whose driving has reached the degree of negligence sufficient to constitute the offence may be aggravated to a greater or lesser degree by additional factors.
Potentially Aggravating Factors
53. In this regard, the court below was referred by defence counsel to a list of potentially aggravating factors set out in a case of R v. Cooksley [2003] 2 Cr App R 18, which is cited in para 17-08 of Sentencing Law and Practice, 3rd edn, by Thomas O'Malley (Round Hall 2016). Cooksley was a guideline judgment issued by the Court of Appeal (Criminal Division) of England and Wales concerning sentencing for serious road traffic offences involving death or serious injury. It has since been replaced by a definitive guideline in this area promulgated by the Sentencing Council in that jurisdiction. However, be that as it may, Cooksley is of some potential persuasive influence in that the offence of dangerous driving causing serious bodily harm of this jurisdiction has a close analogue in the neighbouring jurisdiction and common factors may be relevant to an offender's culpability for the relevant offence in either jurisdiction.
54. The Cooksley decision guided that the following factors might potentially aggravate the culpability of an offender in this context:
"Highly culpable standard of driving at time of offence
(a) the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a 'motorised pub crawl';
(b) greatly excessive speed; racing; competitive driving against another vehicle; 'showing off';
(c) disregard of warnings from fellow passengers;
(d) a prolonged, persistent and deliberate course of very bad driving;
(e) aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking);
(f) driving while the driver's attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held);
(g) driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills;
(h) driving when knowingly deprived of adequate sleep or rest;
(i) driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns;
Driving habitually below acceptable standard
(j) other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle;
(k) previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving;
Outcome of offence
(l) more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable);
(m) serious injury to one or more victims, in addition to the death(s);
Irresponsible behaviour at time of offence
(n) behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape;
(o) causing death in the course of dangerous driving in an attempt to avoid detection or apprehension;
(p) offence committed while the offender was on bail."
This list is helpful, albeit that it was formulated more than 20 years ago.
55. In this jurisdiction there is no corresponding guideline judgment, nor is there as yet any sentencing guideline by our own statutory rule making body with power in that regard, namely the Judicial Council. That being so, it may be of further assistance to sentencers in future cases, pending the issuance in this jurisdiction of a formal guideline judgment or Judicial Council guidance on sentencing for dangerous driving causing death or serious bodily harm, to appreciate that there are now thirty-five judgments of this Court published on the Courts Service website involving either severity appeals or undue leniency reviews in respect of such offences. These are listed in an appendix to this judgment. Recourse can be had to these as comparators (always bearing in mind the limitations associated with the use of comparators previously identified by this Court - see People (DPP) v. Maguire [2018] IECA 310 at paras [97] and [98]; People (DPP) v. K.C. [2019] IECA 126 at para [93]; People (DPP) v. D.M. [2019] IECA 147 at paras [28] - [30]; People (DPP) v. Flynn [2020] IECA 294 at para [59]; People (DPP) v. Dunne [2021] IECA 189 at para [26]; People (DPP) v.. BOS [2023] IECA 84 at para [67]).
56. Based on this material, on the Cooksley judgment, and having also noted (with appropriate caution) aggravating factors identified in current (England and Wales) Sentencing Council Guidance, we suggest that a non-exhaustive list of potentially aggravating factors of which account could be taken by Irish sentencing courts might include:
• Driving while under the influence of intoxicating liquor or drugs;
• Racing or competitive driving;
• Engaging in an obviously highly dangerous manoeuvre;
• Sustained aggressive/furious driving, including so called "joyriding" or while attempting to evade interception while being pursued by the police;
• Driving at significantly excessive speed, with respect to the prevailing speed limit or having regard to prevailing road and weather conditions;
• Driving a vehicle that the offender knew, or ought to have known, was dangerously defective;
• Driving/towing a vehicle that was dangerously loaded;
• Driving while suffering from sleep deficit or when the driver knew or ought to have known that he/she was medically unfit to do so;
• Use of a mobile phone, tablet or other portable handheld electronic device while driving;
• Disregarding the warnings of others, including of one's passengers, to slow down or otherwise moderate/modify one's driving;
• Consciously disregarding the Rules of The Road; and/or the Road Traffic Acts 1961 to 2024; and/or the Road Traffic General Bye-Laws 1964, as amended; and/or the Road Traffic (Construction, Equipment and Use of Vehicles) Regulations 1963, as amended;
• Having previous convictions for similar or related offending, e.g., for dangerous or careless driving, for driving under the influence (where that is again a factor), for driving a defective vehicle (where that is again a factor), or for speeding (where that is again a factor);
• Driving without insurance and/or while disqualified, at the time of committing the offence of driving dangerously;
• Leaving the scene of an accident in which the offender has been involved, and/or failing to render assistance/hindering the provision of assistance to a person injured in such accident;
• Causing death and/or injury to more than one victim;
• Causing death or injury to a person who was in a position of obvious vulnerability as a road user, including by reason of being a pedestrian, cyclist, motor cyclist, scooterist, horse rider, or the driver/passenger of a horse drawn conveyance; alternatively, a person present on a footpath or traversing a pedestrian crossing;
• Allowing one's self as driver to become distracted while driving, by the activities of another person or other persons, or by an animal, in the vehicle;
• Allowing passengers in one's vehicle to travel un-seatbelted/appropriately restrained (including in securely and appropriately installed child seating where necessary);
• Committing the offence while on bail for another offence.
Other possible, but depending on the circumstances not necessarily, aggravating factors could include:
• Driving without a driving licence and/or a valid NCT at the time of driving dangerously;
• Being a professional driver, driving a goods vehicle or PSV;
• Committing other offences at the same time as the dangerous driving;
• Wrongly blaming others for the consequences of his/her dangerous driving.
Harm Done as a Factor in the Assessment of Gravity
57. While the causation of death or the causation of serious harm are preconditions to prosecution on indictment of the offence of dangerous driving, bringing with it the potentially higher penalties associated with such prosecution in the event of a finding, or plea, of guilt, the existence of those factors will not per se determine gravity, or mandate any particular approach in terms of the aims or objectives to be pursued by the sentencer.
58. That is not to say that the degree of harm caused by the dangerous driving giving rise to one, or other, or both, of those consequences is irrelevant. Far from it. Invariably the harm done in these cases will be significant. Someone will have died or at least will have been seriously injured. Sometimes there may be multiple fatalities/seriously injured victims. Where someone has died, the death in question will almost always be associated with profound trauma, personal loss and suffering for the family, friends, dependents and colleagues of the deceased person who are left behind. Where someone has been seriously injured that person may have suffered greatly, both physically and mentally. In some cases, a full recovery may eventually be achieved, but in other cases the injured person may be left with long term sequalae, and those close to and/or dependent on them may also have been caused collateral suffering, loss and distress. Accordingly, the extent of the harm that was actually done also requires to be carefully assessed and taken into account in any assessment of gravity. Victim impact evidence (whether in the form of testimony given in court or victim impact statements read into the record) will likely be of great assistance to a sentencer in properly appreciating the harm that has been done.
The Required Synthesis
59. However, the harm done is only one factor of which account must be taken in the assessment of gravity. The assessment of gravity requires that there should be a judicial appreciation of both the extent of the offender's culpability and of the harm done, and a considered synthesis of both is required in arriving at an appropriate headline sentence. There might also be mitigating factors bearing on culpability, e.g., a contaminated or defective road surface, or bad signposting, which would require to also be taken into account in assessing the headline sentence. Every case will be different. What can be said is that rigorous analysis of the circumstances of the individual case will always be required to determine a headline sentence which is just and appropriate to the circumstances of the case.
60. When gravity has been duly assessed and an appropriate headline sentence has been set having regard to the scale of available penalties, the offender is then entitled to receive an appropriate discount from the headline sentence to reflect any mitigation not already taken into account and any relevant personal circumstances. O'Malley on Sentencing Law and Practice, 3rd edn (previously cited), at para 17-06, is of some assistance in identifying factors that might potentially be relevant in this context, although those which he identifies should not by any means be regarded as exhaustive of possibilities. Then, in terms of ultimate disposition much will depend on the sentencing rationale or rationales being pursued by the sentencing judge.
Determining on a Sentencing Rationale or Rationales
61. In the case of an adult offender [1], given that driving dangerously has intrinsic culpability, and that the consequences of the offending conduct will have been at least the causation of serious injury, and in some cases a death or deaths, then the default aim(s) of any sentencing to be conducted will likely be retributive and deterrent, although another or other rationale(s) may, for cogent and justified reasons, be adopted either in addition to, or instead of, the default one(s).
62. In most cases it will be important that the headline sentence is set at a level that sufficiently communicates censure to the offender and the deprecation of society of the dangerous driving conduct in question. Depending on the culpability of the offender some deserved hard treatment may need to be imposed (which may well, but will not necessarily, involve having to undergo a custodial sentence) by way of proportionate punishment. The proportionate punishment may be calibrated to also have a deterrent effect and promote desistence, both specifically in the case of the individual offender and generally in the case of other drivers who might be inclined to drive dangerously.
63. Even if the headline sentence determined upon is a custodial one (and in circumstances where the legislature contemplates a term of imprisonment of up to 10 years for such offending and does not limit terms of imprisonment to cases where there are aggravating factors, it is difficult to foresee how in most cases it would not be), it does not mean that the ultimate post mitigation sentence will necessarily be a custodial one, although in many cases the ultimate sentence may indeed also be a custodial one. However, a sentencer may feel that the evidence before him or her, allows for the pursuit of a secondary sentencing rationale, such as rehabilitation/reform, which may, depending on the evidence, permit the structuring of a sentence which does not include a hard treatment component involving any custodial element to be actually served, alternatively one which does include a custodial element but one which is shorter than might have been required if the penal objectives being pursued were confined to retribution/deterrence. In a case in which a headline sentence above the custodial threshold had been nominated, the affording of appropriate discounting, the making of appropriate discretionary adjustments, and the structuring of a proposed sentence at this second stage of the sentencing process, might sometimes result in the case dropping back below the custody threshold, resulting in an ultimate non-custodial post mitigation sentence. There will, of course, always be other cases of such gravity that the custody threshold is so far exceeded that a custodial sentence is inevitable.
Secondary Sentencing Aims
64. Not infrequently, those coming before the courts charged with dangerous driving (including where the consequences are the causing of death or serious bodily injury) will include persons without previous convictions, who are otherwise of good character and who have lived pro-social lives up to the point of their offending.
65. Frequently there will be evidence of genuine and profoundly felt remorse. Even where the offender's conduct was aggravated, e.g., by driving under the influence of drugs or alcohol, there may have been an underlying problem, e.g., addiction or persistent substance abuse, which is latterly being seriously addressed and which provides evidence of a determination and resolve to rehabilitate and reform. Frequently, there will be evidence that the offender was a good worker, a good family person, a positive contributor to their community, and that the risk of their re-offending is assessed to be low. These personal circumstances, and the existence of other mitigating factors (e.g., having pleaded guilty at an early opportunity, having been co-operative with the gardaí, and having gained insight into the gravity of their offending conduct, to mention but some possibilities), might, depending on the full circumstances of the case, justify a judge in concluding that society would be best served by pursuing a secondary rehabilitation/reform objective, allowing the showing of leniency and mercy towards the offender (within such scope as might legitimately be available to the sentencing judge for doing so), allowing a sentence to be structured which would afford the offender either the opportunity to avoid a custodial penalty altogether; or if that were not possible due to the exigencies of the case, to afford him/her the opportunity of receiving a part-custodial and part non-custodial sentence.
66. While in such a scenario the default aims of retribution and deterrence are by no means abandoned, they do become displaced as the dominant sentencing objectives and the secondary aims of rehabilitation/reform assume a greater importance. Public censure, and the deprecation of society, of the offender's conduct is still communicated through the headline sentence. The headline sentence also serves to communicate any general deterrent message. However, the need for hard treatment as deserved punishment (particularly deprivation of liberty), or as much hard treatment might otherwise be warranted, and any need for specific deterrence, becomes less essential, where rehabilitation/reform become the dominant sentencing objectives.
67. The choice of what sentencing objectives to appropriately pursue is always a matter within a sentencing judge's discretion. However, decisions in that regard must be principled and grounded in the evidence, and where there is guidance regard must be had to that guidance. Any decision to depart from the presumptive default dominant sentencing objectives of retribution/deterrence in favour of possible alternative objectives such as rehabilitation/reform should be supported by clear and cogent reasons in any sentencing ruling to be delivered.
This Case - The Court's Analysis and Decision
The Headline Sentence
68. At the outset it must be recognised that devastating and life changing harm was caused to E by the respondent's dangerous driving behaviour in this case, as so poignantly outlined by E's mother in her victim impact statement; and that there were also lesser but nonetheless significant collateral consequences of the respondent's offending for other immediate members of that family. K had his school life disrupted. Mr. MK had to leave his job. All members of the immediate family suffered financial consequences, and were caused worry, stress, and major inconvenience. Not least amongst the collateral consequences and sequelae suffered was the significant disturbance of every member of the immediate family's day to day lives and routines, necessitated by having to relocate temporarily to Dublin in order to support E and to be close to her during her lengthy hospitalisation and subsequent program of physical and mental rehabilitation. All in all, the harm caused was momentous for this family, and for E most particularly.
69. In having pleaded guilty the respondent readily acknowledges that his driving was dangerous according to the accepted test, and that as such it was at least intrinsically culpable in that he drove in a manner which a reasonably prudent man, having regard to all the circumstances, would recognize as involving a direct, immediate and serious risk to the public. However, for the purpose of setting an appropriate headline sentence, the sentencing judge at first instance was faced with assessing, on the evidence before her, whether and if so to what extent, that intrinsic culpability was aggravated. She considered the evidence and concluded:
"What happened on this particular occasion is that you overtook another car on a bend in bad conditions at speed, and that is the level of your culpability. As Mr Cody has pointed out, there were no other aggravating factors as sometimes appear in these type of cases, such as alcohol. There was no alcohol, no use of a mobile phone or no prolonged, persistent, aggressive driving. However, the harm done was devastating to [E] and her family. I note I've read the victim impact report from [E's] mother, and clearly, she has gone to extraordinary efforts to provide the best for her child. [E] has attended at occupational therapy, physiotherapy, equine therapy, rehabilitation in the pool, speech and language therapy, and her mother has also organised charity events to raise money and that she really -- it is clear that she is a mother trying to do the very best for her child in extremely difficult circumstances. In my view, particularly because of the harm caused, this brings the sentence within the lower end of the mid-range, and I would put the sentence at three and a half years."
70. The applicant contends that the sentencing judge was in error in setting the headline sentence at three and a half years, contending that there were significant aggravating factors impacting his culpability that she failed to give sufficient weight to, including that the respondent was engaged in racing, was attempting to overtake two vehicles at the same time, had crossed a continuous white line, was on the wrong side of the road, failed to take account of the prevailing conditions including reduced visibility, and had disregarded a request from one of his passengers (Mr. Corrigan) to slow down.
71. The first thing to be said is that even if one were to assume that the evidence sufficiently established the existence of each of the alleged aggravating factors, not all of them necessarily required to be afforded the same weight. We think there is a distinction to be drawn between aggravating factors based on recklessness (in the sense of adverting to a risk and pressing on regardless) or conscious and deliberate choices to engage in conduct impacting the ability to drive safely, such as deciding to drink and drive, or to drive while manipulating or operating a handheld electronic device such as a mobile phone, or to drive furiously and with reckless disregard for others for the purpose of engaging in racing, or showing off, or while attempting to escape police pursuit (to give but just some examples), and aggravating factors based not on recklessness or choices consciously and deliberately made, but which are the result of the exercise of poor judgement or misjudgement while driving. That is not to suggest for a moment that contributing factors arising from the exercise of poor judgement or misjudgement cannot be aggravating, and in some circumstances be seriously aggravating. A driver is expected to exercise good judgement and to drive carefully and with due care and attention. However, aggravating factors arising from the exercise of poor judgement or misjudgement may, depending on the circumstances, be less seriously aggravating than aggravating factors borne of engaging in recklessness or the making of conscious and deliberate choices impacting the driver's ability to drive safely.
72. The degree to which intrinsic culpability will be regarded as being increased by a particular aggravating factor will depend on the circumstances of the case.
73. The existence of more than one aggravating factor will serve to further increase culpability, providing that each aggravating factor is truly independent of the others and is properly to be treated as providing standalone additional aggravation rather than a double counting of what is in essence a single incident involving poor judgement or misjudgement albeit bearing multiple facets. The extent of the offender's increased culpability consequent on the existence of multiple aggravating factors will inevitably depend on the number and type of the additional aggravating factors, and the extent to which each may have contributed to the outcome in which the victim or victims suffered death or serious bodily injury.
74. We have considered the evidence that was before the sentencing judge in this case. We are not satisfied that the sentencing judge was in error in her assessment of the level of the respondent's culpability having regard to the evidence before her. While the respondent's dangerous driving was indeed somewhat aggravated for reasons we will elaborate upon presently, we do not believe that such evidence as was adduced at the sentencing hearing would have supported a finding that it was aggravated by a most egregious alleged aggravating factor relied upon by the applicant, namely that the respondent had been racing. It is significant that the sentencing judge made no finding of racing.
75. We think she was right not to have done so in circumstances where the only evidence of it was entirely hearsay, and the contention was controversial.
76. It does arise from time to time, as it did in the present case, that a defendant who has pleaded guilty to an offence will seek to be sentenced on the basis that while he accepts that he is guilty of the offence charged he does not necessarily accept every alleged circumstance contended for by the prosecution. The matter is well put in O'Malley on Sentencing Law and Practice, 3rd edn (previously cited) at para 31-31, where the author states:
"A defendant who has been convicted following a trial or guilty plea may still contest some aspects of the prosecution case at sentencing. In such an eventuality, which is most likely to occur following a guilty plea, the version of events found or accepted by the court may have a significant impact on sentence. A guilty plea, after all, is merely an admission of the essential ingredients of the offence. Reliable fact-finding procedures are therefore necessary to ensure that the sentence properly and adequately reflects the defendant's actual conduct and degree of culpability."
It follows that unless the prosecution has proven the existence of a controversial circumstance to the standard of beyond a reasonable doubt in the course of a sentencing hearing, thus enabling the sentencing court to accept it, the sentencing court must discount it.
77. We think the point was well made by counsel for the respondent that such limited evidence as was adduced before the trial judge in this case concerning racing was wholly insufficient to have grounded a finding of racing. Such evidence as was adduced, suggested that Mr. MK, having just exited the bend in question from the other direction to that in which the respondent was travelling, faced an immediate emergency and the need to react to it as best he could. It was a fair comment to postulate that he might only have had a momentary opportunity to assess what had likely precipitated the emergency facing him and that his assessment, of which the court only had an untested hearsay account which was controversial, might not have been reliable. To suggest this is not to criticise Mr. MK in any way, or to imply that his impression as conveyed to gardaí was not a genuinely held one. However, if Mr. MK had given direct evidence (e.g., in the context of a Newton hearing, in circumstances where the contention of racing was controversial), he could perhaps have elaborated on what led him to the impression he formed, and he might have allayed reasonable concerns as to his opportunity to make a reliable assessment. Equally, the reliability of his assessment could have been tested in cross-examination by defence counsel. However, as Mr. MK was not called as a witness, the sentencing judge did not have the benefit of such evidence.
78. In subsequent submissions by way of a plea in mitigation, the respondent's counsel emphasised to the sentencing judge that the basis on which his client had pleaded guilty was that he accepted having made a very grave error of judgement in attempting to overtake another car, in poor visibility and at speed, when approaching a bend, and that this had been dangerous driving. No objection was voiced by the prosecution to the defence case being framed in this way.
79. All of that being so, we can only reiterate our assessment that such limited evidence as was in fact before the sentencing court on the subject matter of possible racing would not have justified a positive finding in regard to racing to the standard of beyond reasonable doubt. We therefore think that the sentencing judge was correct in making no finding that there had been racing.
80. As regards the other aggravating factors relied upon we also think the point is well made by counsel for the respondent that a number of them were in truth different facets of what was a single incident involving the exercise of very poor judgement, or misjudgement, resulting in driving that was dangerous; namely attempting to overtake another car (or possibly cars) in poor visibility and at speed when approaching a bend and when there was insufficient clear road ahead of him in which to safely do so. It is true that the respondent's vehicle was on the wrong side of the road when it collided with Mr. MK's vehicle. It is also true that at the point of the collision there was a continuous white line, although the evidence is silent as to whether it was continuous when the manoeuvre was commenced. Moreover, it is uncontroversial that the respondent's vehicle was travelling at increased speed at the point of encountering Mr. MK's vehicle, a circumstance open to the inference that this was in the poorly judged or misjudged belief that he could get past the vehicle(s) he was attempting to overtake and return to his own side of the road before reaching the bend. There was, in addition, equivocal hearsay evidence to the effect that one of the respondent's passengers (Megan Behan) had told gardaí that she thought that he might have been attempting to overtake two vehicles at once, but that she was not sure of this. However, while these facets to the incident can all be legitimately pointed to, everything occurred in the course of one manoeuvre, and we think that they were not a succession of freestanding aggravating factors. Rather the overall manoeuvre being attempted represented one multi-faceted aggravating factor. To say that is not to minimise the gravity of the respondent's seriously misjudged manoeuvre, or to suggest that his culpability was not to be regarded as having been aggravated. However, any assessment of the degree to which it was to be treated as aggravated requires to be fair and proportionate.
81. The sentencing judge expressly acknowledged the aspect of engaging in overtaking while approaching a bend, the bad conditions, and the respondent's speed and concluded "that is the level of your culpability". We are satisfied that she was not in error in so doing. The sentencing judge did not make any finding that the respondent may also have been inappropriately attempting to overtake two vehicles at once, and we think she was right not to do so in circumstances where the only evidence of that was hearsay and, more importantly, had in any case been expressed with equivocation - i.e., the passenger Megan Behan who had suggested that this was a possibility, had also stated that she was not sure of this. While there was undoubtedly evidence of very poor judgement/serious misjudgement on the respondent's part while driving, and the respondent's culpability was certainly aggravated, and significantly so, by the nature and circumstances attending the manoeuvre then being attempted, the evidence before the sentencing judge would not have supported a finding that such aggravation as there was extended to recklessness (in the sense of adverting to the risk and pressing on regardless) or manifestly dangerous conduct impacting the ability to drive safely engaged in consciously and by choice. Quite rightly, the sentencing judge made no such findings, and indeed expressly accepted that there were no other aggravating factors, and we think that she was right to do so.
82. Further, on the issue of possible recklessness, while it has been suggested by the prosecution that the intrinsic culpability associated with the respondent's dangerous driving extended to recklessness because of disregard on his part of a request by his passenger Joe Corrigan to slow down, we do not think that such evidence as was adduced in that regard could in fact have supported a finding of recklessness on that account. Again, the sentencing judge was faced with the difficulty that she only had Garda Monaghan's hearsay account of what Mr. Corrigan had said. Mr. Corrigan is said to have stated:
"Around 500 metres before the crash, Emmet overtook Cathal Molloy. This was on a straight stretch of road. I remember Cathal wasn't travelling fast. Coming into the next bend, which is to the left, there is a slip road off to the right. I told Emmett to slow down. I remembered this road to be dangerously bendy. I felt Emmett was going too fast for this part of the road. The next I remember is seeing lights and then there was a loud bang."
The evidence did not extend to suggesting that the warning to slow down was issued in sufficient time for the respondent to safely moderate his speed, but that he had deliberately ignored that entreaty and had pressed on regardless. On the contrary, the account provided was open to the interpretation that any request to slow down may have been made at a point where the respondent was already committed and in the throes of his ill-judged overtaking manoeuvre while approaching the bend, such that it may not have been capable of being acted upon in safety. Recklessness requires that the offender appreciates the risk and presses on regardless. The evidence of supposed recklessness, even ignoring the hearsay and untested nature of it already commented upon, simply did not go that far.
83. For all of these reasons we are satisfied that the trial judge's approach to assessing the gravity of the case is not to be legitimately criticised. She had appropriate regard to, and properly assessed, the proven level of the respondent's culpability having regard to the evidence before her. She also had appropriate regard to, and properly acknowledged and took account of the significant harm done.
84. We consider that in the circumstances of the case her nomination of a headline sentence of three and a half years imprisonment was justified and proportionate, having regard to the level at which she assessed culpability, the harm done and range of available penalties. We therefore reject the ground of review which contends that gravity was inappropriately or improperly assessed.
The Sentencing Rationales Adopted
85. The further basis proffered for contending that the ultimate sentence was unduly lenient was that, in effect, the case required to be approached on the basis of adopting a sentencing rationale that firmly prioritised retribution (i.e. punishment) and deterrence, both specific and general. It was suggested that the sentencing judge had not been justified in ostensibly adopting and pursuing reform/rehabilitation as a secondary rationale, and in structuring her sentence so that the respondent was not required to serve any actual time in custody. The applicant contends that the circumstances of the case were such that the custody threshold was well exceeded. It was accepted that there were mitigating, and personal circumstances of which account required to be taken, but it was submitted that even after taking account of these, the imposition of a custodial sentence to be actually served was required in the circumstances of the case. It was suggested that the ultimate sentence actually imposed failed to adequately punish the respondent and would not serve to sufficiently deter either him or others from similarly driving in a dangerous way in the future.
86. We think that this was a finely balanced case. The respondent's culpability was more than that which intrinsically attaches to dangerous driving according to the test articulated in People (Attorney General) v. Quinlan, as approved by the Supreme Court in DPP v. O'Shea. It was aggravated by very poor judgement / misjudgement, and really significant harm was caused. By the same token, the aggravation did not extent to recklessness or the making of deliberate and conscious choices impacting the ability to drive safely. The issue for the sentencing judge was therefore whether in addition to pursuing the retributive and deterrent sentencing rationales, which were undoubtedly called for by default, and which she acknowledged expressly she was required to pursue, it was open to her to also pursue, and to seek to reconcile with those default rationales (to the extent that they might be in conflict), possible secondary sentencing rationales of reform/rehabilitation. We are satisfied that in the circumstances of this case it was within the sentencing judge's discretion to seek to do so.
87. The question then is did the sentencing judge get the balance right. In terms of her pursuit of retributive and deterrent sentencing rationales, while these are often said to represent two sides of the same coin, it may be helpful to consider them separately. In regard to retribution (or in more modern language, punishment) this has both a communicative and an incentivising function. It serves on the one hand to censure the offender and communicate to him/her society's disapprobation of what they have done. It sends the message that the offending conduct was unacceptable and is to be deprecated. Further, while seeking to exact vengeance can form no part of sentencing, the imposition of an appropriate and proportionate punishment represents an acknowledgement by society of the wrong that has been done to the victim or victims. In subjecting an offender to punishment, a sentencing court treats the offender as a moral agent, and punishment serves to impress upon him/her that they have done wrong, and that such proportionate hard treatment as is being visited on them is deserved on that account. Further, as the leading sentencing scholar von Hirsch has argued, "the hard treatment in punishment ... serves a prudential reason for obedience to those insufficiently motivated by the penal censure's moral appeal." [2] In von Hirsch's belief the prudential supplement he identifies is precisely that, and no more. It supplements rather than replaces the normative reasons for desisting from crime provided by penal censure.
88. In so far as deterrence was concerned, it is a behaviour modification strategy aimed at promoting future desistance. It can operate both on the specific offender and more generally on other persons who might potentially offend in a similar way. The modus operandi is designed to be coercive, unlike in the case of rehabilitation and incapacitation, deterrence is still seen as achieving crime prevention through its intimidatory effect, both with respect to the likelihood of apprehension, conviction and punishment (the so-called "certainty effect"), and also with respect to the severity of punishment that will follow upon conviction (the so called "severity effect").
89. In relation to possibly pursuing secondary sentencing rationales, we think it is of significance that the sentencing judge was referred by defence counsel to this Court's decision in The People (DPP) v. Flynn [2020] IECA 294. This was also an undue leniency review in a case of dangerous driving causing serious bodily harm, where the offender had received a four year sentence with the final thirty months suspended to reflect mitigation and to incentivise reform. In that case the offender's culpability was significantly aggravated by substantial consumption of alcohol (he was four times over the limit), and there were two seriously injured victims (cyclists). The Court of Appeal found that the sentence was unduly lenient primarily because the headline sentence of four years that had been nominated was considered to have been too low. At resentencing the Court of Appeal nominated a headline sentence of six years, and said that the respondent was entitled to a discount of 50% to reflect the mitigating circumstances in the case. It further imposed both a substantial fine and disqualification. It added, however, that if it had been sentencing at first instance it would have been prepared to show extended leniency in the interests of incentivising and promoting the respondent's reform and to that end would have discounted by a further one year from the unserved balance of the three year custodial component of the revised sentence. (It should be noted in passing that, due to particular additional circumstances which are not relevant here and which it is not necessary to set out, the Court ultimately suspended the entirety of the unserved balance of the net custodial sentence imposed).
90. We think that the following observations by the Court of Appeal in the Flynn case concerning the showing of extended leniency in the interests of incentivising and promoting a respondent's reform may well have influenced the sentencing judge in the present case. In Flynn, we observed (inter alia):
"73. What the law required was that the sentencing judge should impose a sentence on the respondent that was proportionate in two respects. First, the sentence needed to properly reflect the gravity of his crime (assessed by reference to his culpability and the harm that he had done to his victims), but secondly, the sentence was also required to be proportionate having regard to the personal circumstances of the respondent, viewed both from his perspective and that of what would best serve the interests of society. It was of significance in the latter regard that the respondent was a first-time offender, that he had been of previous good character and that he had previously been a positive contributor to society and to his community.
74. While the respondent certainly required to be proportionately punished, and while that punishment needed to be such as might deter him, but more particularly others, from driving while intoxicated, it was also desirable that he should be assisted, incentivised and encouraged to reform. His reformation would involve not merely resolving never to reoffend, but aiming to become once again a positive contributor to society and to his community, and being facilitated in that. While we have said that where a judge is contemplating showing extended leniency in the interests of promoting rehabilitation, it is desirable that he/she should have evidence of some track record of progress towards addressing whatever the underlying problem might be (e.g., alcoholism, drug addiction, anger management issues, gambling, mental health issues, to name but some), in order to justify going the extra mile, that requirement is less applicable in the case of the promotion of reformation because "treatment" in the positivistic sense is not required. Of course, it goes without saying that the person in question should not have re-offended since the index offence (and there has to be a track record in that sense), but reformation is more about influencing the offender as moral agent, and about encouraging appropriate attitudes and insights, and so what a judge considering extended leniency as an incentive to ongoing reformation needs to be satisfied about is that the offender has learned or is in the course of learning his/her lesson and that there are realistic grounds for optimism that he/she may henceforth live a good and crime-free life."
91. The sentencing judge in the present case offered the following rationales for the approach she adopted:
"A sentence needs to properly reflect the gravity of the crime assessed by reference to culpability and the harm that has been done to the victim, but secondly, a sentence is also required to be proportionate, having regard to the personal circumstances of the respondent viewed from his perspective and that of what would serve the interests of society. I note Mr Rigney is a first-time offender, of previous good character and has previously been a positive contributor to society. He made an extremely poor decision on this evening by overtaking on a bend in bad weather conditions, the consequences of which are that an innocent child has suffered lifelong injuries. There also has to be a deterrent for this type of driving and there must be punishment for this type of driving. I note that Mr Rigney is a trainee mechanic, and part of my sentence is that he will be disqualified from driving for six years. This disqualification is to provide specific deterrence for you, Mr Rigney, and also general deterrence to other people to prevent this kind of driving. I note you will also receive a criminal conviction that is going to clearly affect your life and your employability going forward.
In all of the circumstances, I'm taking into account the seriousness of the charge, the impact on the victim, the aggravating and mitigating circumstances and proportionality, I'm imposing a two year prison sentence, but in light of all the mitigating factors, I'm suspending that for two years in your own bond of 100 Euro. As I said, you'll be disqualified for six years. It's a condition of your sentence that you pay €10,000 to the victim's parents for her benefit within a period of six months from today's date, and that is to assist the family who are clearly in financial difficulty until their civil action is settled and they receive substantial money going forward for E."
92. The jurisprudence on undue leniency appeals mandates that a reviewing appellate court should give great weight to the reasons provided by a sentencing judge at first instance whose sentence is being reviewed. We find the approach of the sentencing judge in this case to have been conscientious and careful, and that the reasons she has provided in explanation of her approach were cogent. This was a case which would have merited a custodial sentence to be immediately served but for the number and weight of the mitigating factors, which led the sentencing judge to conclude that the interests of society would be better served by a disposition that included a suspended custodial element. There is no doubt but that her sentence was lenient, but we cannot see that it was unduly lenient or outside of the norm. To the extent that it was lenient we are satisfied that she acted within her legitimate range of discretion. Apart from the early plea, factors relevant in that regard were the respondent's youth (he was only 18 at the time of the collision); and, it may be inferred, his relative inexperience at driving; his profound and genuine remorse; the fact that he was a first time offender; his pro-social life before and since the accident; his good employment record; his own mental health issues and the fact that he had been assessed as being at low risk of re-offending.
93. The carefully constructed sentence was designed to achieve communication of significant censure and to achieve deterrence both specific and general, while at the same time promoting reform by way of extended leniency on the basis that both the interests of society and of this offender would ultimately be best served by doing so. We are satisfied that it was capable of doing so. The nomination of a headline sentence at the level of three and a half years imprisonment reflected the sentencing court's assessment of the gravity of the offender's conduct, and the degree to which it was to be deprecated. While the post mitigation sentence did not contain a custodial element to be actually served (providing the conditions of suspension were adhered to) the suspended custodial element was but one component of an overall package of penal measures that comprised the post mitigation sentence. Moreover, it was not to be dismissed as being of little or no significance. The point has often been made both by this Court, by its predecessor the Court of Criminal Appeal, and by the Supreme Court that a suspended sentence is a real punishment. In the Stronge case, cited earlier in this judgment, McKechnie J stated:
"...it is sometimes wrongly felt that simply because a portion of a custodial sentence is suspended, that suspension has no or no ongoing value as part of the overall sanction. Such a view is clearly erroneous. See Re McIlhagga (Unreported, Supreme Court, 29th July, 1971). As Osborough observed in his article "A Damocles sword guaranteed Irish: The suspended sentence in the Irish Republic of Ireland" (1982) 19(2) Jur. 221 at 221, the suspended sentence is a "punishment made to hang over the offender like some sword of Damocles for the duration of a period which the sentencer has prescribed in advance. If, with this probationary period, the offender offends again or otherwise violates the trust placed in him, he runs the risk that the sentence previously suspended will thereupon be activated". In this regard the suspended sentence remains very much an active part of what the court imposed and if the conditions of the bond are breached, the convicted person may be called upon to physically serve the suspended portion."
94. In so far as it might be suggested that retribution was not sufficiently served in this case because the overall sentencing package lacked sufficient "hard treatment", we do not agree. The profoundly remorseful offender here, who it must be remembered is a first time offender with the potential to again be a pro-social contributor to his community, is left with a recorded criminal conviction for dangerous driving causing serious harm, which he will carry with him to his shame for the rest of his life; and he has a suspended sentence hanging over him for the suspended period. In addition, the suspension here is conditioned upon a very substantial lump sum payment being made to E's family, which is likely to cause the respondent, who is of modest means, some hardship; and further a lengthy disqualification from driving was also imposed. The disqualification was not merely a consequential order. The period of disqualification nominated was very substantially in excess of the required consequential disqualification (which was two years). While the disqualification is not to be regarded as primary punishment for the reasons articulated by Walsh J in Conroy v. Attorney General [1965] IR 411, it does carry with it secondary punitive and incapacitative effects. The sentencing judge specifically referenced specific and general deterrence objectives in setting the disqualification at that level. We are satisfied that this was a legitimate exercise of her discretion. We consider that the overall sentencing package was sufficient in the circumstances of the case for retributive and deterrent purposes, while at the same time appropriately showing extended leniency and mercy towards the offender so as to promote and incentivise his reform. We find no error in the sentencing judge's approach in that regard.
Conclusion
95. In conclusion, while reiterating that this was a finely balanced case, we are not persuaded that the sentencing judge got the balance wrong in all the circumstances. Therefore, we do not find the sentence in this case to have been unduly lenient.
96. The application is dismissed.
Appendix
Court of Appeal Judgments Concerning Dangerous Driving
Causing Death or Serious Bodily Harm.
1. DPP v Casey [2015] IECA 199
2. DPP v Kelly [2015] IECA 250
3. DPP v Casey (No 2) [2015] IECA 278
4. DPP v O'Donovan [2016] IECA 192
5. DPP v McDonagh [2016] IECA 256
6. DPP v O'Rourke [2016] IECA 299
7. DPP v Kazinski [2016] IECA 308
8. DPP v Power [2016] IECA 326
9. DPP v Kearney [2016] IECA 394
10. DPP v Eric Ryan jnr [2017] IECA 31
11. DPP v Cadden [2017] IECA 58
12. DPP v Handley [2017] IECA 34
13. DPP v Coleman [2017] IECA 40
14. DPP v O'Driscoll [2017] IECA 91
15. DPP v Walsh [2017] IECA 240
16. DPP v Jackson Fleming [2017] IECA 242
17. DPP v Nestor [2018] IECA 255
18. DPP v Murphy [2018] IECA 368
19. DPP v Moran [2019] IECA 5
20. DPP v Crosbie [2019] IECA 28
21. DPP v Ward [2019] IECA 158
22. DPP v Byrne [2019] IECA 344
23. DPP v Dudek [2020] IECA 12
24. DPP v Whelan [2020] IECA 350
25. DPP v Flynn [2020] IECA 294
26. DPP v N O'R [2021] IECA 2
27. DPP v Cody [2021] IECA 354
28. DPP v Coen [2022] IECA 308
29. DPP v McCormack [2022] IECA 301
30. DPP v Welby [2023] IECA 29
31. DPP v Coakley [2023] IECA 77
32. DPP v. Doyle [2024] IECA 130
33. DPP v. O'Sullivan [2024] IECA 98
34. DPP v. Kelly [2024] IECA 240
35. DPP v. Lucey [2024] IECA 250