Irish Court of Criminal Appeal

26


THE COURT OF CRIMINAL APPEAL

Denham J
Herbert J
Gilligan J



Between


The People at the Suit of

The Director of Public Prosecutions


and


Peter O’Dwyer

Judgment of the Court delivered on the 28th day of July, 2005 by Denham J.

1. Peter O’Dwyer, the applicant, hereinafter referred to as the applicant, was convicted on the 8th December, 2004, by the Clonmel Circuit (Criminal) Court for the offence of careless driving and sentenced to one months imprisonment, which was suspended for eighteen months on bond and his licence was endorsed.

2. The applicant seeks leave to appeal against sentence, his appeal being limited to the custodial sentence.
3. The grounds filed for the motion for leave to appeal were as follows. That the learned trial judge erred in:
(i) imposing a term of imprisonment of one month in respect of a first
conviction for careless driving;
(ii) failing to give proper weight or to have due regard to the verdict of the jury which had acquitted the applicant on a charge of dangerous driving causing death;
(iii) taking into account the death of a member of the public who had been involved in an accident with the applicant in circumstances where the applicant had been convicted of careless driving only;
(iv) failing to have due regard or give sufficient weight to the fact that the applicant had no previous convictions and was a person of exemplary character;
(v) failing to have due regard to the remorse which the applicant himself felt over the accident and the consequences of same and the extent to which the applicant had suffered since the occurrence of the said accident;
(vi) failing generally to take a proper account of all the circumstances relating to the applicant and the circumstances surrounding the accident in which he had been involved.

4. The applicant was charged with dangerous driving causing death. The particulars of the offence, as set out in Count No. 1, were that the applicant did on the 16th day of February, 2003, at New Line, Dungarvan Road, Carrick-on-Suir, in the County of Tipperary, a public place, 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 such place and the amount of traffic which then actually was or might be expected to be therein), was dangerous to the public, thereby causing the death of another person, namely Austin Bentley.

5. On the 8th December, 2004, the trial in this action came on before Clonmel Circuit (Criminal) Court, before a judge and jury.

6. The facts were that on Sunday the 16th February, 2003, a group of motorcyclists, having been at a motorbike rally in Dungarvan the day before, were returning home to Mountmellick. They left Dungarvan at about midday and travelled in the direction of Carrick-on-Suir. It was a nice day and travel conditions appeared good. Mr. Dan Turner said that Mr. Austin Bentley was in front of him, driving down the road, when, approaching Carrick-on-Suir, a jeep came around the bend weaving. The jeep then crossed the road, hit the ditch and slid and hit Mr. Bentley’s motorcycle. Mr. Bentley died at the scene from injuries received in the road traffic accident.

Garda Joe Robinson gave evidence of examining the applicant’s jeep on the 17th February, 2003. He said that the two rear tyres were bald and below the legal limit. He said that the tracking was out on the front wheels and the tyres were under the legal limit. However, there was three-quarters of a good grip remaining on the tyres, there was three millimetres of thread. He said that the tyres on the rear wheels should have been replaced and the tyres on the front should have been replaced and the tracking corrected. On cross-examination he said there was wearing on the inside of the front wheels and that this wearing of the inside of the front wheels would not be visible to a lay person. On the outer portion of the tyre, for three quarters of the tyre, the thread level was at three millimetres which is above the legal limit.

7. The jury found the applicant not guilty of dangerous driving but guilty of careless driving. The learned trial judge sentenced the applicant, after hearing further evidence. The learned trial judge accepted that the applicant was genuinely remorseful, but indicated that he was going to impose a custodial sentence which he proposed suspending. Counsel for the applicant submitted that such an approach was an error, and counsel urged the trial judge not to impose a disqualification either as the applicant had no previous convictions.

The learned trial judge then held as follows:
“Basically I am not against you in respect of disqualification, he needs it for his job. The maximum sentence for careless driving is three months and/or a fine. Then I must look at what range does this case lie. Well, it’s within the lower range of that maximum penalty. In the personal circumstances and this is important in respect of what sentence I impose and in respect of disqualification that he [is] now aged 38 years and that he is a self-employed builder and he also keeps a few horses and he needs his driving licence to go from job to job or in respect of his horses and I will take that into account.

In mitigation, in respect of disqualification, … I’ll impose a one month custodial prison sentence which I will suspend on Mr. O’Dwyer entering into a bond of fifty euro and to be of good behaviour for a period of 18 months from today’s date. I will not disqualify him from driving but it appears that the terms will have to be endorsed on his driving licence because that is mandatory.”

8. The background to the sentence was that the applicant had been charged with an offence under s.53 (1) of the Road Traffic Act, 1961, as amended. This section states:
“A person shall not drive a vehicle in a public place 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 and the amount of traffic which then actually is or might reasonably be expected then to be therein) is dangerous to the public”.

In his charge to the jury the learned trial judge stated that the meaning of dangerous driving was driving in a manner which a reasonable, prudent, motorist, having regard to all the circumstances, would clearly recognise as involving a direct and serious risk of harm to the public. He informed the jury that on the charge they had to be satisfied that the applicant drove the car dangerously and that the concept of dangerous driving is based on an objective test or an objective view of the facts. It is a test of what a prudent careful person would do.

The learned trial judge pointed out to the jury that if they were not satisfied beyond a reasonable doubt that it was dangerous driving they must acquit the applicant. However, he informed them that it was open to them to bring in a lesser or an alternative verdict that the applicant was guilty of careless driving under s.52 (1) of the Road Traffic Act, 1961, as amended. Section 52(1) states:
“A person shall not drive a vehicle in a public place without due care and attention.”

The learned trial judge described careless driving as where a person has been merely careless, doing his incompetent best, or has been momentarily inattentive and that the test to be applied is objective. It was this latter offence of careless driving of which the jury found the applicant guilty.

9. It is important to draw attention to the difference between the offence of dangerous driving causing death and the offence of careless driving simpliciter. The constituents of the offences are very different, as are the penalties.

10. The penalties provided for by the Oireachtas for the offence of careless driving are: (i) a fine, the maximum being €1500; (ii) imprisonment, up to a maximum term of three months, either on its own or with additional penalties; and (iii) an optional ancillary disqualification order under s. 27 of the Act of 1961 which may be made by the court in all cases. A mandatory disqualification order arises where the contravention involves an offence in a mechanically propelled vehicle, being an offence committed within a three year time frame in which two or more previous offences were committed by the person under s.52 for which he was convicted; and, (iv) under s.36 (1) of the Act of 1961, an endorsement of the driving licence is mandatory; even for the first offence: DPP v O’Brien [1989] IR 266. There has been a recent change in the law on endorsements but counsel informed the Court that the relevant statutory provisions were not commenced at the time of the commission of the offence and so no reference was made to any new legal provisions.

11. Counsel for the applicant, Mr. Michael Delaney B.L., submitted that the learned trial judge erred in making reference to the consequences of the applicant’s careless driving to Mr. Bentley. Alternatively, he argued that if he was entitled to make reference to the consequence to Mr. Bentley, the learned trial judge should have made only a minimal reference to it. He submitted also that the learned trial judge failed to give sufficient regard to mitigating factors, which included an offer to plead guilty to careless driving at an early stage, an absence of previous convictions, and the presence of ample evidence of remorse. Counsel submitted that this offence should have attracted a lower sentence, which should not have included imprisonment. Counsel for the State, Mr. Tom Teehan B.L., submitted that there was no error in principle by the learned trial judge in imposing sentence.

12. This Court has been asked to consider the relevant law in an offence of careless driving where as a result a death has occurred, and whether the trial court in considering sentence may take account of this consequence as in itself an aggravating factor.

13. No Irish case referring to this aspect of the law was brought to the attention of the Court. The Court was referred to four decisions, one from Northern Ireland and three from England and Wales.

14.1 The first case referred to was from England and Wales: R v. Krawec [1984] 6 Cr. App. R. (S) 367. The facts of that case were that on the afternoon of January 5th, 1983, the defendant was riding his motor cycle at the junction of Maple Street, University Street and Tottenham Court Road. He collided with an elderly male pedestrian, who died six days later. When interviewed the defendant admitted that he might have gone through the traffic lights whilst they were showing red against him. He said that he was concentrating on the car in front of him which was turning right and only saw the pedestrian when it was too late. At the Central Criminal Court he was acquitted of causing death by reckless driving but was convicted of driving without due care and attention. He was fined £350 and his licence was endorsed with five penalty points. He appealed against the sentence. He was then twenty-five years of age, he had no previous convictions. On the appeal counsel submitted that the learned trial judge erred in regarding the fatality that ensued from the accident as an aggravating factor. She submitted that in a case of careless driving the gravity of the consequences, in this case the death of the pedestrian, were not relevant to the penalty. Lord Lane L.C.J. stated at p.369:
“The question therefore arises, if (as it appears) the learned judge did take into account the fact that a death occurred, was he entitled to do so?
In our judgment the unforeseen and unexpected results of the carelessness are not in themselves relevant to penalty. The primary considerations are the quality of the driving, the extent to which the appellant on the particular occasion fell below the standard of the reasonably competent driver; in other words, the degree of carelessness and culpability. The unforeseen consequences may sometimes be relevant to those considerations. In the present case the fact that the appellant failed to see the pedestrian until it was too late and therefore collided with him was plainly a relevant factor. We do not think that the fact that the unfortunate man died was relevant on this charge.”

Lord Lane L.C.J held that since it seemed that the fact of the death influenced the judge to some extent they considered some reduction of the fine appropriate. He stated at p. 369:
“But this was nevertheless a bad case. It was, death apart, a case where it was open to the judge to conclude, if not inevitable that he would, that on this occasion the appellant fell far below the standard of the reasonably competent motor cyclist. This was not a case of momentary inattention. On his own admissions to the police it was apparent that he was not keeping a proper look out. The traffic lights were adjusted for a three-second amber phase. Even on his own account he failed to appreciate that the lights were changing from green to amber or from amber to red. He failed to see the deceased save at the very last moment.”

The Court concluded that the fine should properly be reduced from £350 to £250, and to that extent the appeal was allowed.

14.2 The second case referred to by counsel for the applicant was also from England and Wales: R v MacCaig [1986] 8 Cr. App.R. (S) 77. In this case the appellant had been charged with causing death by reckless driving but he was acquitted by the jury. He pleaded guilty to the offence of careless driving. He was fined £150 and he was disqualified from driving for two years and his licence was endorsed. He appealed against the sentence of disqualification. He was a college student who collected three fellow students from their homes with the intention of driving them to college in his father’s car. A lecturer who had arranged to give them a lift had failed to arrive. At a point on the journey when the car was going around an unmarked left-hand bend, approaching a village, the appellant lost control of it and failed to negotiate the bend and went straight on across the road into a stone wall. Two of his passengers were injured and the third was killed as a result of a broken neck, a type of whiplash injury. He could not remember anything from the time he picked up his first passenger until he woke up in hospital because he was injured in the accident. The appellant was nineteen years old and had no previous convictions. The trial judge noted that this was as bad a case of careless driving as one can imagine but he said, (see the judgment of Webster J. at p.78, 79):
“I think the jury were probably right to say that it did not go over the line of reckless driving. There was no drink involved or other facts which differentiate that type of case but, as I am sure you will understand, I cannot ignore the fact that this young life has been brought to an end by what was a terrible piece of careless driving, and I must disqualify you for an appreciable time. That is the real punishment.”

The Court of Appeal referred to and followed Krawec, stating at p.79:
“In light of that decision, it is clear that the learned judge in the present case did err when he clearly took into account the tragic death of the passenger when he was considering sentence.
In those circumstances, we propose to reduce the period of disqualification. … this was not a case of momentary inattention, and even though it is clear from the jury’s verdict that the appellant is not to be treated as having been driving recklessly fast, it is equally clear that he must have been driving too fast because had he not been driving too fast he would not have gone off the road. In those circumstances, in our view, it is right to disqualify the appellant but for a period of six months and not for a period of two years for which the Crown Court disqualified him.”

14.3 In the third case of R v. Megaw, Northern Ireland, 1st February, 1993, Hutton L.C.J., held that where death has resulted from careless driving, the fact that death had been caused should not be taken into account in determining the length of any period of disqualification from driving which is imposed. The facts of this case were that Mr. James Martin was driving his car on the south bound carriageway of the A1 towards Newry with Miss Patricia Byrne as his front seat passenger when the appellant, Mr. David Megaw, who was driving a pick up truck, drove out directly in front of him from a side road, the Buskhill Road, and a violent collision occurred when the front of the car struck the side of the truck. As a result of the collision Ms. Byrne was killed. At the Crown Court sitting in Armagh the appellant was charged with the offence of causing the death of Miss Byrne by reckless driving. The case made by the Crown at the trial was that the appellant had driven out on the carriageway of the A1 from Buskhill Road without stopping at the junction and without looking to see whether there was traffic approaching from the direction of Belfast. The appellant told the Court that he had looked right and the road was clear and then he looked left but he did not remember if he looked right again. By unanimous verdict the jury found the appellant not guilty of reckless driving causing death but guilty of careless driving. The learned trial judge fined him £300 and disqualified him for six years. In sentencing the trial judge said that he must reflect both the findings of the jury that the appellant had not been guilty of causing death by reckless driving and the harm that was done by the appellant’s piece of careless driving. Neither Krawec nor MacCaig had been drawn to his attention. Hutton L.C.J, having determined that Krawec and MacCaig were relevant said that he was satisfied that if these cases had been opened before the trial judge then the trial judge would not have imposed the period of disqualification which he did. Despite his excellent record and other circumstances the Court considered that the appellant should suffer some period of disqualification. In light of the English decisions the Court held that the period of disqualification should be twelve months.

14.4 The final decision opened to this Court was from England and Wales: a case of R v Simmonds [1999] R.T.R. 257. The appellant was a man in his sixties with an excellent driving record. He was driving along an unfamiliar road in good road conditions, although it was dark. He pulled into a wide mouthed entrance on his nearside in order to turn his car and return the way he had come. Without pausing he embarked on a sweeping right-hand turn designed to take him across the carriageway along which he had been travelling and on to the opposite carriageway. He collided with an approaching motor cyclist who subsequently died of multiple injuries. The appellant was charged with causing death by dangerous driving, but a plea of careless driving was accepted. He was fined £1,000, ordered to pay £150 costs, and disqualified from driving for twelve months. On appeal against sentence, in particular the period of disqualification, the appellant contended that the trial judge erred in principle in taking into account the motor cyclist’s death when passing sentence. The Court of Appeal dismissed the appeal holding that in the context of a statutory regime for road traffic offences which envisaged the causing of death as a factor leading to an enhanced statutory sentencing bracket and in which, where such offences were considered, additional deaths were regarded as an aggravating factor; the concept of a road traffic offence in which the sentencing court was obliged to disregard the fact that a death had been caused was wholly anomalous. It was held that while culpability or criminality remained the primary consideration where an offence of careless driving had led to death, a judge was entitled to bear that death in mind when sentencing. The relatively limited criminality of careless driving was balanced by the limited penalties which could be imposed for it. R v Krawec was distinguished. In the judgement reference was made to the English case law developing the analysis of the propriety of taking into account the consequences of road traffic offences. Reference was also made to Parliament’s policy in road traffic legislation, as a reflection of public reaction to maiming or death caused by bad driving. The offence in issue in this case was s.3 of the English Road Traffic Act, 1998, as substituted by s.2 of the Road Traffic Act 1991, which provides:
“If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.”

Giving the judgment of the Court Henry L.J., stated at p.263:
“Whether sentencing courts should take into account criminality alone or both the criminality and the consequences of an offence – and in the latter event in what proportions – is ultimately a question of choice and policy. R v Krawec [1985] R.T.R. 1 was clearly valid in its context and at its time, but we do not see it as of assistance to sentencing courts in the different context of today. While culpability or criminality remains the primary consideration, this court has concluded that Judge Nicholl was entitled to bear in mind that he was dealing with an offence that had led to death. The relatively limited criminality of careless driving is balanced by the limited penalties that can be imposed for it. Parliament envisages the potentially appropriate penalties for careless driving as including disqualification. That penalty is not limited to repeat offenders. Neither the fine imposed in this case (albeit that it exceeded the Magistrates’ Association guidelines) nor the disqualifications were excessive. This appeal is accordingly dismissed.”

This then was the most recent case from England opened to the Court. It is notable that none of the cases envisaged a penalty of imprisonment. This arises because the hierarchy of road traffic offences in England and Wales (and Northern Ireland) is different to the hierarchy in this jurisdiction. It illustrates a difficulty in comparing and contrasting case law from the two jurisdictions in this area of the law.

14.5 While it was not opened in court this Court has noted a further case from the Court of Appeal (Criminal ) Division of England, R v King, [2001] EWCA Crim 709, where Mackay J. gave the judgment of the Court. The facts were that on the 20th October at Newcastle upon Tyne Crown Court the appellant was tried on an indictment containing three counts of causing death by dangerous driving. The jury acquitted him on all three counts, but he was convicted of three offences of driving without due care and attention. He accepted from the outset that he was guilty of that lesser offence. In due course he was sentenced to be fined £2,250 and was disqualified from driving for three years. The charges arose out of an accident on the 27th May 2000 on the A1, a dual carriageway where the south bound lanes were closed for road works with all traffic using the contra flow system on the north bound side. A 40 mph speed limit was in place. Temporary traffic lights had been installed. A line of either stationary or slow moving traffic was to be found on the approach to the lights. The appellant’s heavy goods lorry ran into the back of the last car of this queue instantly killing the three occupants of the car. That car was pushed in its turn into another car in front, which was itself pushed into a lorry in front of it. The sole occupant of the car was very badly injured. The impact speed shown on the tachograph was 43mph. The accident was one and a quarter miles into the contra flow system. The road was straight. Warning markings were in place. The slow moving traffic was there to be seen by the appellant for at least a minute. The appellant said he had not seen this traffic until he was virtually on top of it – five or ten yards away as he put it. His explanation was that he had taken his eyes off the road to look down at the tachograph to calculate when he needed to stop driving. The trial judge, when sentencing, described it as one of the worst cases of careless driving he had ever encountered, and as a quite appalling piece of careless driving. The Court of Appeal, at para 10, referred to Krawec, citing Lord Lane L.C.J. (in a paragraph already cited above) where he stated:
“The primary considerations are the quality of the driving, the extent to which the appellant on the particular occasion fell below the standard of the reasonably competent driver; in other words, the degree of carelessness and culpability. The unforeseen consequences may sometimes be relevant to these circumstances.”

Reference was made to MacCaig; and to the fact that Krawec was followed in other cases; to a different approach in certain other cases; and to Morling [1998] 1Cr App R (S) 421 and Simmonds [1999] 2 Cr App R (S) 218. Mackay J., referred to the new statutory scheme in England, including the introduction in 1991 of the new statutory offence of causing death by careless driving when under the influence of drink or drugs, the maximum sentence for which was originally fixed at five years imprisonment, but which, within a year, had been doubled by Parliament to one of ten years. At para 15 he cited from the judgment of Henry L.J. in Simmonds who in this context had concluded:
“In the context of a statutory regime for road traffic offences that envisages the causing of death as a factor leading to an enhanced statutory sentencing bracket, and in a context in which, where such offences are considered, the courts regard additional deaths as an aggravating factor… we find the concept of a road traffic offence in which the sentencing court is obliged to disregard the fact that a death had been caused as wholly anomalous”.

Mackay J. held at para 16:
“It cannot be denied that this decision [Simmonds] has marked something of a reconsideration of the approach to sentencing in this difficult area. The public concern, to which Henry LJ referred, has in no way abated in the two years since he spoke those words. The sentencer must still, therefore, make it his primary task to access culpability, but should not close his eyes to the fact that death has resulted, especially multiple death, where, as here, that was all too readily foreseeable as the consequence of the admitted lack of care in this case.”

The Court of Appeal (Criminal) Division of England and Wales pointed out that it was a very serious offence but it was considered that the level of fine and length of disqualification were excessive. The fine was reduced to one of £1500 and the disqualification was reduced to one of two years.

15. As may be seen, there is a hierarchy of offences in both jurisdictions. However, it is not a similar hierarchy. The offence of careless driving at Irish law is different to its nearest equivalent in the jurisdiction of England and Wales, and the penalties available are different.

15.1 Careless driving at Irish law is found in s. 52 of the Road Traffic Act, 1961 as inserted by s. 50 of the Road Traffic Act, 1968 and amended by s. 23 of the Road Traffic Act, 2002. It provides:
“52(1) A person shall not drive a vehicle in a public place without due care and attention.

(2) A person who contravenes subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €1,500 or, at the discretion of the court, to imprisonment for any term not exceeding three months or to both such fine and imprisonment.”

This is a summary offence. The penalties provided by the Oireachtas are a maximum fine of €1,500 and/or a maximum of three months imprisonment. A mandatory disqualification period of 6 months arises where the contravention involved an offence in a mechanically propelled vehicle, being an offence committed within a three year time frame in which two or more previous offences were committed by the person under s. 52 for which he was convicted.

15.2 The offence of careless, and inconsiderate, driving at English law is found in s. 3 of the Road Traffic Act, 1988 as substituted by s. 2 of the Road Traffic Act, 1991. It provides:

“If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention or without reasonable consideration for other persons using the road or place, he is guilty of an offence.”

This is a summary offence only. The maximum penalty which is set out in schedule 2 to the 1988 Act is a fine of £2500 (level 4 fine). The Court can, upon conviction, if it thinks fit, disqualify for any period and order that the driver sit a driving test before getting his licence back.

15.3 Driving without due care and attention and driving without reasonable consideration which are separate offences in Ireland are combined into one offence of careless and inconsiderate driving under the English statutory regime. Irish legislation provides for the distinct offence of driving without reasonable consideration. It is found in s. 51A of the Road Traffic Act, 1961 as inserted by s. 49 of the Road Traffic Act, 1968. It provides:

“51A. (1) A person shall not drive a vehicle in a public place without reasonable consideration for other persons using the place.

(2) A person who contravenes subsection (1) of this section shall be guilty of an offence”

The general penalty under the Road Traffic Acts applies to this offence. It is found in s. 102 of the Road Traffic Act, 1961 as amended by s. 23(1)(a) of the Road Traffic Act, 2002. It provides that on summary conviction the following maximum penalties apply:

(a) on a first offence a fine of €800;
(b) on a second offence a fine of €1500;
(c) on a third or subsequent offence within 12 months, a fine of €1500 and/or three months’ imprisonment;
(d) on a third or subsequent offence not within 12 months a fine of €1500.
The offence does not attract mandatory disqualification.

15.4 Thus the law with regard to careless driving in Ireland differs considerably from careless driving in England. The most important difference, and the one that we are concerned with in this case, is the fact that Irish law provides for the possibility of imprisonment whereas English law does not.

15.5 The next offence in the English hierarchy of Road Traffic Offences, which does provide for the possibility of imprisonment, is the offence of causing death by careless driving while under the influence of drink or drugs. This offence is found in s.3A (1) of the Road Traffic Act, 1988 as inserted by s. 3 of the Road Traffic Act, 1991.

It provides:

“3A. –(1) If a person causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, and
(a) he is, at the time when he is driving, unfit to drive through drink or drugs, or
(b) he has consumed so much alcohol that the proportion of it in his breath, blood or urine at that time exceeds the prescribed limit, or
(c) he is, within 18 hours after that time, required to provide a specimen in pursuance of section 7 of this Act, but without reasonable excuse fails to provide it,
He is guilty of an offence.

(2) For the purposes of this section a person shall be taken to be unfit to drive at any time when his ability to drive properly is impaired.
(3) Subsection (1) (b) and (c) above shall not apply in relation to a person driving a mechanically propelled vehicle other than a motor vehicle.”

This offence may be prosecuted on indictment only. The maximum penalties, as set out in schedule 2 of the 1988 Act, are 10 years imprisonment and an unlimited fine. Disqualification for a period of two years is obligatory unless special reasons are found. It is clear, therefore, that this is a far more serious offence than careless driving. It is also clear that it does not bear any similarity to the offence of careless driving at Irish law. To convict someone of this offence the prosecution has to prove the three ingredients that it’s title implies; that a driver:
(i) caused death;
(ii) by driving without due care and attention/reasonable consideration;
(iii) while under the influence of drink or drugs.
The Irish offence only requires the prosecution to establish that the driver drove without due care and attention.

15.6 Thus there is a difference between the two legal systems, the Irish offence of careless driving is a summary offence while the offence under s. 3(A) (1) is triable on indictment only; the penalties provided also are vastly different; the most important being the maximum periods of imprisonment; the maximum period is three months for careless driving at Irish law and 10 years for a s. 3(A) (1) conviction in England. There is also a significant difference in the mandatory disqualification periods. It should also be noted that the maximum fine for a s. 3(A) (1) offence is unlimited whereas the maximum fine for careless driving at Irish law is €1,500.

Therefore, in considering the overall position, with regard to careless driving in Ireland and England; there are very significant differences between the two jurisdictions.

16. The concept of careless driving covers a wide spectrum of culpability ranging, from the less serious to the more serious. It covers a mere momentary inattention, a more obvious carelessness, a more positive carelessness, bad cases of very careless driving falling below the standard of the reasonably competent driver, and cases of repeat offending. However, since even a mere momentary inattention in the driving of a mechanically propelled vehicle can give rise to a wholly unexpected death, the court has always to define the degree of carelessness and therefore culpability of the driving.

17. The issue of law on this application for leave to appeal against sentence is whether a trial judge may take into account the fact that someone has died as a result of the road traffic accident and treat it in itself as an aggravating factor.

18. The law relating to sentencing was addressed in D.P.P. v Sheedy [2000] 2 I.R. 184 which held at p.192 that:
“Sentences should be proportionate; The People (Director of Public Prosecutions) v. M. [1994] 3 I.R. 306, at p. 316. Sentences should be proportionate to the crime and also to the personal circumstances of the applicant. As stated in The People (Attorney General) v. O’Driscoll [1972] 1 Frewen 351, at page 359 by Walsh J.:

‘It is therefore the duty of the courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case - not only in regard to the particular crime but in regard to the particular criminal.’

The impact on victims is also a factor to be considered: The People (Director of Public Prosecutions) v. Tiernan [1988] I.R. 250 at p. 253; followed in The People (Director of Public Prosecutions) v. M.”

In Sheedy the applicant pleaded guilty to dangerous driving causing death contrary to s.53 (2) of the Road Traffic Act, 1961 as amended by s.51 of the Road Traffic Act, 1968. He also pleaded guilty to a count of drunk driving. The facts were that on the 9th March, 1996 the applicant was driving a Ford Probe, a relatively powerful car, which he had bought that week. At approximately 8.15 p.m. he was driving towards a roundabout at speed on the Tallaght By-Pass. He had consumed between three and a half and four pints of beer. He failed to stop at the roundabout, traversed it, and flew into the air for distance of about 70 feet. His car fell on top of a motor car being driven by the deceased, Mrs. Anne Ryan, whose husband, Mr. John Ryan, was in the passenger seat and wherein three children were in the back seat. Mrs. Ryan was killed instantly in the crash. The applicant’s car proceeded on and hit another car about 20 to 30 feet further on. There was evidence that the applicant had been driving at speed for quite some time and also driving in a manner which caused other road users concern. On his arrest the applicant was tested for alcohol consumption and his urine reading was 141. The limit is 107, thus, he was in the range which carries a mandatory disqualification of one year. The trial judge ordered he be sentenced to imprisonment for a period of four years on Count No. 1 to be reviewed in two years, and that he be disqualified from driving for twelve years. On appeal to this Court it was said at p.195:
“Each case must be considered on its own facts. The relevant factors must be balanced in each case. At issue is an offence in which there can be varying degrees of fault. On the one hand one could have a case where there was one factor of fault, perhaps a momentary factor, and on the other hand the offence can arise when there is a multiplicity of fault, many factors, such as the dangerous driving of a stolen vehicle and its use in the intended ramming of other cars. The proportionate sentence takes into consideration the relevant factors.

A sentence should not always be calculated in relation to the maximum sentence. First, the court should consider the matter to see where on a range of penalties the particular case would lie. It is clear that this case does not fall into the category of a less serious dangerous driving case (where, for example, there may have been one fault factor). Nor can it be categorised as the most heinous. It is an offence which, in light of the circumstances, falls into the medium band of this offence. Thus, the sentence should not be calculated at the maximum penalty. That established it is then necessary for the Court to consider the factors pleaded in mitigation as well as the aggravating factors.”
The Court reviewed the aggravating and mitigating factors of that case as follows:
“Aggravating Factors


In this case there are a number of aggravating factors in the offence;
1. Death. The driving of the applicant caused the death of Mrs. Anne Ryan and injury to others.
2. Speed. It was clear on the evidence that the applicant was speeding.
3. Manner of Driving. The applicant drove in such a manner over a period of time prior to the collision that other drivers on the road were apprehensive of a collision.
4. Drink. The applicant had drunk approximately three and a half to four pints of beer prior to driving the car.
5. New car to him. The applicant had purchased the car, which was relatively powerful and with which he had not become familiar, just days before the accident. Thus, he should have driven carefully so as to be in control of his new car.
Mitigating factors



The court’s attention was drawn to a number of mitigating factors in this case:-
1. Plea. The applicant made an early plea of guilty.
2. Previous Convictions. The applicant has no previous convictions.
3. Helpful attitude. Counsel on behalf of the applicant argued that it was a mitigating factor that the applicant had approached his insurance company and asked them to facilitate disposal of civil proceedings.
4. Previous attitude to life. The applicant worked hard to achieve his profession as an architect, he held down jobs throughout his college life to help pay for his education. He has done pro bono work.
5. Remorse. The applicant suffers greatly from remorse. There is no doubt, from the evidence before the court, that he has deep feelings of remorse and that this causes him to suffer. It is clear that this remorse is genuine. He has apologised unreservedly to the family of the deceased.
6. Effect into the future. The applicant will be affected into the future by the event, the convictions and the sentences. His remorse will remain with him. On a personal level the imprisonment has an effect, as it does on every person. Even when he is released ultimately he will not be able to drive a car for a very long time because of the disqualification from holding a licence for twelve years, which order is affirmed by this Court. An architect who cannot get into his car and drive to a site is seriously hampered in his professional life. Also, this case has been the subject of extensive media coverage which cannot be beneficial to the applicant’s employment position.”

In that case the Court varied the sentence to one of three years.

19. Analysis
Applying that approach to sentencing in this case it is clear that a sentence should be proportionate to the crime and to the personal circumstances of the applicant. The crime in this case is one of careless driving. The issue then is where on the range of penalties this particular case should lie. It is clear in all the circumstances that this case falls into the lesser bracket, so that consideration of the appropriate sentence for the applicant should commence at the lower end of the spectrum of penalties.

20. Factors
Having made the determination that the consideration of the penalty should commence at the lower end of the spectrum of the penalties, it is appropriate next to consider the other relevant factors, mitigating and aggravating.
The primary issue of carelessness in this case revolves around the fact that on the occasion of the offence the applicant was driving with bald tyres. It is a reasonable inference that this was the carelessness and culpability found by the jury.

The mitigating factors included his offer to plead guilty to careless driving, his helpful attitude in the inquiries, his absence of previous convictions, his position as a working member of the community, and his genuine remorse. In other words it is clear that there were significant mitigating factors in this case.

We then come to the issue as to whether the learned trial judge may refer to the fact that there has been a death as a consequence of the accident. Any such reference would make it an aggravating factor.

Surprisingly there appears to be no reported cases on this issue in Ireland. This Court was referred to case law in England and Northern Ireland which is set out above. Because of the matters to which this Court has adverted, the cases require to be considered carefully to ascertain if they are of assistance. This Court has determined that they are of limited assistance in an analysis of the law in this jurisdiction for the following reasons:
(i) They relate to a statutory scheme in England and Northern Ireland which is not the same as the legislation in this jurisdiction.
(ii) None of the cases relate to a situation where the defendant was given a prison sentence: all relate to issues on sentencing by way of fine and disqualification only.
(iii) The interpretation of the law as seen in these four cases has altered over the decades. This indicates an uncertainly in the proper approach to this difficult issue.

However this Court would not disagree with Mackay L.J. in R v King [2001] E.W.C.A. Crim. 709, where he held that the primary task of the sentencing judge is to assess culpability but that the judge should not close his eyes to the fact that a death, especially multiple deaths, has or have resulted from the driving of the accused. The culpability of the accused will relate to issues regarding his driving, for example speed, drink or drugs, condition of the vehicle, theft of the vehicle, leaving the scene of the accident, previous convictions and many other circumstances surrounding the driving of the vehicle, including, as in this case, bald tyres. Having made that determination on the culpability of the driver the sentencing judge should not close his eyes to the fact that a death or multiple deaths has or have occurred as a result of that driving. Depending on the primary finding of the level of carelessness of the driver, the fact that a death occurred may in itself be a factor to be taken into account in sentencing.

As stated previously, there is a world of difference between a mere momentary inattention in the driving of a mechanical propelled vehicle, which unexpectedly and tragically causes a loss of a life, and grossly careless driving, which, though still short of dangerous driving, hardly surprisingly results in a fatal collision. A rigid adherence in sentencing to an approach which excludes any reference to the death in itself as an aggravating factor, despite the many and various differences in the degrees of careless driving, would not be proportionate.
While the fact of a death occurring may be a separate factor in itself, it should not be so in every case where there is a death. The occasions on which it becomes a factor must depend upon the finding of the court on the primary issue of the degree of carelessness and therefore of the culpability of the driving.

In this case the Court is satisfied that it would be disproportionate to regard the tragic death as an aggravating factor in itself, in all the circumstances of the case.

21. This Court notes the concern expressed by the trial judge for the applicant in his need for a driving licence because of the nature of his work. It may have been that in seeking the proportionate sentence for the applicant the trial judge determined that it would be more appropriate not to disqualify him from driving because of his work commitments and consequent need for the car, but rather to give him a prison sentence of one month and to suspend it. This Court is satisfied that in imposing such a custodial sentence the trial judge erred. This offence was at the lower end of the sentencing spectrum, reduced further by the mitigating factors. It was not an offence which could proportionately attract a prison sentence. Consequently the Court would treat the application for leave to appeal as the hearing of the appeal and allow the appeal. It is now necessary to determine the appropriate sentence.

22. In all the circumstances the Court determines that the appropriate sentence is a fine of €1,000, the conviction to be endorsed on the applicant’s driving licence. This Court has given consideration to imposing a period of disqualification, but for the reason’s advanced by the trial judge in this regard the Court comes to the conclusion that it will not interfere with the trial judge’s view and accordingly will not impose a period of disqualification.