Irish Court of Criminal Appeal

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URL: http://www.bailii.org/ie/cases/IECCA/2007/C118.html
Cite as: [2007] IECCA 118, [2008] 3 IR 632

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Judgment Title: D.P.P.-v- James O'Reilly

Neutral Citation: [2007] IECCA 118

Court of Criminal Appeal Record Number: 189CJA/06

Date of Delivery: 11 December 2007

Court: Court of Criminal Appeal

Composition of Court: Kearns J., Murphy J., Mac Menamin J.

Judgment by: Kearns J.

Status of Judgment: Approved


Judgments by	Result
Kearns J.	Quash sentence and impose sent. in lieu

Outcome: Quash sentence & impose in lieu

COURT OF CRIMINAL APPEAL

Kearns J.
Murphy J.
MacMenamin J.

[189CJA/06]

IN THE MATTER OF THE CRIMINAL JUSTICE ACT, 1993, SECTION 2 AND IN THE MATTER OF AN APPLICATION

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/ APPLICANT

AND

JAMES O’ REILLY

RESPONDENT

JUDGMENT of the Court delivered on 11th day of December 2007 by Kearns J.

This is an application brought on behalf of the Director of Public Prosecutions pursuant to s. 2 of The Criminal Justice Act, 1993, which provides:-
“(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the "sentencing court") on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.
….(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.”
At Wexford Circuit Criminal Court the respondent was arraigned and pleaded guilty on 3rd October, 2006 to the following counts on the indictment, namely:-
(a) Count No.1: Dangerous driving causing the death of Ian Rossiter on 9th day of January, 2005
(b) Count No. 2: Driving while under the influence of an intoxicant contrary to s. 49 (2) of the Road Traffic Act, 1961 on the same date;
(c) Driving without insurance contrary to s. 56 (1) of the Road Traffic Act, 1961 on the said date.
Having heard evidence from the investigating garda, evidence from the respondent and submissions made by counsel on his behalf, the sentencing judge imposed a sentence of five years imprisonment in respect of count No. 1 and sentences of six months imprisonment in respect of counts 2 and 3, all of which said sentences were to run concurrently but were suspended in their entirety on condition that the respondent keep the peace and be of good behaviour for a period of three years. The respondent was also disqualified from driving for a period of six years.
The notice of application indicates the grounds relied upon as follows:-
(1) The sentence of five years suspended failed to reflect sufficiently the gravity of the offence of dangerous driving causing death; in particular, the court failed to have sufficient regard to the evidence as to the nature of the dangerous driving as outlined by Garda Jason O’ Farrell which indicated that the respondent had been driving dangerously some time prior to the fatal collision and completely lost control of his vehicle in the course of the fatal collision
(2) The trial judge failed to have sufficient regard for certain aggravating factors in the case which included the fact that the respondent was driving at a time when the quantity of alcohol in his system was in excess of the legal limit and the fact that he knowingly drove while uninsured.
(3) The learned trial judge gave undue weight to matters concerning the respondent which were found to be mitigating circumstances, namely:-
(a) His expression of remorse in evidence
(b) Submissions as to the impact of the incident upon the respondent, particularly given the limited nature of the evidence available to support such matters.
The notice further contends that by suspending the sentence in respect of count No. 1 in its entirety the trial judge failed to incorporate in the sentence a sufficient deterrent element for the offence of dangerous driving causing death.

BACKGROUND
On the night of 8th January, 2005 the respondent was attending a function in honour of his parents wedding anniversary at the Talbot Hotel in Wexford in the company of his girlfriend. He had a few drinks at the function following which he went back to his girlfriend’s house at Mount Prospect in Wexford. He did not drive a vehicle in returning with his girlfriend from the function and there is no evidence that he was drinking prior to the function. Sometime shortly after midnight he took his girlfriend’s car and drove it to the local fast food restaurant. While he was there he met a number of friends who were looking for a lift and he offered these young men a lift home. Some time after picking up these friends, the accused drove the car onto Coolcotts Lane where he was observed to be driving at some speed with tyres screeching. He appeared to lose control of the vehicle as an oncoming vehicle approached. The vehicle being driven by the respondent crossed the centre of the road, glanced off the other vehicle before returning to its correct side where it impacted with a wall. Ian Rossiter, who was travelling as a back seat passenger, received fatal injuries.
A sample of blood was subsequently taken from the respondent in hospital which indicated a concentration of 125 mgs of alcohol per 100 ml of blood.
On 16th February, 2005, the respondent made a full cautioned statement to the gardaí in which he admitted driving the vehicle on the night in question knowing himself to be uninsured and knowing that he had consumed alcohol.
In the course of his evidence, Garda Jason O’ Farrell stated that the respondent had fully co-operated with the gardaí and had no previous convictions. The respondent himself gave evidence in which he apologised to the family of the deceased for his actions. Following a plea on his behalf by counsel, the learned trial judge (Judge Alice Doyle) imposed the sentences set out above.
In imposing sentence the trial judge stated:-

“I have watched the demeanour of the accused over the course of the time this case has started and it appears to me, both from what he said and his demeanour, he appears to be in his own private hell and he will have that for the rest of his life.

In my opinion the sending to jail of this young man would not benefit anyone. He has his own jail sentence and he can never forget that. He does not have to be imprisoned by walls. He has shown genuine remorse and has admitted from the very beginning that he had been drinking.

Counsel very eloquently tells us there was no malice of forethought, and I accept that. However, knowingly getting into a car with drink, knowing that he wasn’t insured, there is a great degree of negligence there. From listening to his evidence, the apology that came today in court was heartfelt and certainly came straight from his heart, I thought. I hope the Rossiter family can feel that too and I know that this isn’t the first time, or so he tells us, that he has apologised to them.”

From the medical report furnished from Dr. Paul Curran, it appears the respondent remained in hospital for five or six weeks post-accident. He had sustained a serious compression fracture at T6 of his spine in the accident. He also became extremely depressed. He was subsequently referred to Dr. Liam Watters in St. Senan’s Hospital for help with his depression. He was placed on significant levels of medication both for depression and for severe back pain. In September, 2006 he was referred to Mr. Thomas Glynn, orthopaedic surgeon, in Waterford Regional Hospital to see if any more could be done regarding the further management of his condition. The respondent has been unable to work since the accident and as of November, 2007 was continuing to attend for counselling to help him with depression and to help him cope with the reality of what occurred and the consequences of his actions. The respondent is 30 years of age and has no previous convictions. While he never married, he does have an eleven year old daughter who stays with him every second weekend. He is currently on disability benefit of €180 per week and is attending the New Start Programme at the Swan Training Centre in Wexford which helps people retrain for new employment.

SUBMISSIONS
On behalf of the Director, Mr. Michael Delaney BL argued that the trial judge erred in suspending the sentence in its entirety and that the sentence should have required the respondent to serve some time in custody so that the sentence could be seen as incorporating a sufficient element of general deterrence in respect of the offence of dangerous driving causing death where alcohol or drugs are involved.
He pointed out that by virtue of s. 49 (f)(i) of The Road Traffic Act, 1994, the maximum sentence for dangerous driving causing death was increased from five years to ten years. He referred to a judgment delivered by this Court on 4th March, 1994 in The People (DPP) v. Gallagher (Unreported, Court of Criminal Appeal, 4th March, 1994) which conducted a review of four previous cases which had come before the court. In each case, net sentences of between two and three years imprisonment had been imposed in respect of the offence of dangerous driving causing death. In three of the four cases, there had been a plea of guilty. The information available in relation to those cases did not indicate whether the consumption of alcohol was a factor.
In The People (Director of Public Prosecutions) v. Sheedy [2000] 2 IR 184 this Court had been invited to set out guidelines on sentencing for this type of offence but had declined to do so in view of the “particular facts” of that case. However, the court did identify in general terms the approach which should be adopted by a sentencing court. This involved identifying where, on the range of penalties, the particular case would lie having regard to the nature of the driving itself and thereafter applying all appropriate aggravating factors and mitigating factors. In that context, the consumption of alcohol as well as the manner of driving was identified as a relevant aggravating factor. Since Sheedy, a considerable number of cases in respect of dangerous driving causing death or serious injury have come before this Court. The essential particulars relating to such cases and the ultimate outcome of same are set out in a table of cases submitted to the Court (which is appended to this judgment).
Mr. Delaney pointed out that custodial sentences have been imposed in cases characterised by the presence of at least one aggravating factor such as particularly dangerous driving, multiple deaths and/or consumption of excess alcohol. In the case of The People (Director of Public Prosecutions) v. Sheedy, a sentence of 34 months and 10 days was imposed. In The People (Director of Public Prosecutions) v. John Joseph Fallon (Unreported, Court of Criminal Appeal, 6th March, 2000), a sentence of three years imprisonment was imposed. Both involved one or more aggravating factors.
In The People (Director of Public Prosecutions) v. David Naughton (Unreported, Court of Criminal Appeal, 20th April, 2007) a sentence of three years imprisonment was increased to six years pursuant to the application of the Director. The case involved several significant aggravating factors. Two young girls were killed and a third passenger was seriously injured. There had been dangerous driving over a prolonged period involving a car which had been purchased on the day of the accident for £20. The car was neither taxed nor insured. The accused was aged sixteen years at the time of the offence.
Mr. Delaney pointed out that the cases in which judgments are available suggest that a high proportion of persons who commit the offence of dangerous driving causing death are of previous good character, genuinely remorseful and generally have pleaded guilty. Such persons were unlikely to re-offend and a requirement for individual deterrence is seldom needed once a tragic outcome has resulted from the driving.
The essential question is whether general deterrence should be a significant concern when imposing sentence in such cases. Mr. Delaney argued that there was a high level of public concern in Ireland arising out of the ongoing high level of fatalities as a result of road traffic accidents. In 2001, the total number of deaths on the road was 411. Despite measures taken since then, including the introduction of penalty points in greater public awareness campaigns, the total number of deaths in 2005 was 396 and in 2006 was 367.
In October, 2006, the Health Service Executive published a report on the role of alcohol and fatal crashes in Ireland in 2003. The study showed that 28.2 percent of fatal accidents that year involved the consumption of alcohol by the driver of a vehicle involved. In 23.9 percent of cases the driver was above the legal limit. Mr. Delaney argued that the additional blameworthy act meriting punishment is the earlier act of taking control of a motor vehicle while under the influence of alcohol. Mr. Delaney argued that the drunken driver disables himself from meeting emergencies or from recovering from small errors which all drivers frequently commit. In conclusion, Mr. Delaney acknowledged that, in the absence of a statutory provision to that effect, no mandatory custodial sentence was provided for by the relevant legislation. Nonetheless, he submitted that truly exceptional circumstances ought to be present if the offence of dangerous driving causing death- accompanied by the aggravating factor of excess alcohol (or other aggravating factors) is not to attract an immediate custodial sentence of some duration.
In response, Deirdre Murphy S.C. for the respondent, stressed that any approach whereby an automatic custodial sentence was triggered by reason of the fact that an accused was over the legal alcohol limit would amount to mandatory sentencing without any legislative provision or requirement for same. Such an approach could work a serious injustice. It would mean, for example, that a person who was 1 mg above the legal limit would have to be imprisoned while a person 1 mg below the legal limit would not, even though their level of culpability was virtually identical. It would make no allowance for a person who by reason of an emergency found himself compelled to drive a vehicle while over the legal blood alcohol limit.
The discretion of the court in matters of sentence should not be lightly interfered with. In all the leading cases in which this and other superior courts have dealt with sentencing, it has been emphasised that sentencing involves a consideration of all the circumstances of both the offence and the accused and the weighing up of both the aggravating factors and the mitigating factors. This principle was put succinctly by Walsh J. in The People (Attorney General) v. O’ Driscoll [1972] 1 Frewen 351 (at p. 359) in the following terms:-

“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.”

As was noted by Barron J. in The People (Director of Public Prosecutions) v. McCormack [2000] 4 IR 356 at p. 359:-

“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.”

In The People (Director of Public Prosecutions) v. R. O’ D. [2000] 4 IR 361 this Court emphasised (at p. 363 per Geoghegan J.):-

“in the absence of a statutory provision to that effect it is never mandatory on a trial judge to impose a custodial sentence… that does not mean that a trial judge is at large as to whether he or she imposes a custodial sentence or not. Not to impose a custodial sentence in a particular case may amount to an error in principle which would be capable of correction by this court. But there is no question of an absolute rule that for certain types of offences a custodial sentence is mandatory

.”

Insofar as the comparator cases were compared, it was not disputed that, as contended in submissions filed on behalf of the applicant, all of the cases where a custodial sentence was imposed included at least one of the aggravating factors identified by this court in The People (Director of Public Prosecutions) v. Sheedy as relevant to sentencing in cases of dangerous driving causing death.
In this regard the case of DPP v. Vincent McCormack (unreported, Court of Criminal Appeal, 27th April, 2006) was particularly significant. In that case the accused had pleaded guilty to one charge of drunken driving in addition to the dangerous driving causing death. The extent to which alcohol was an aggravating factor can in fact be viewed as greater than in the present case. In McCormack, the accused had been at Christmas parties on two consecutive nights, and had had only one hour’s sleep in the previous twenty-four hours. While the precise concentration of alcohol to blood or urine remained unclear from the judgment, the accused in McCormack had consumed “three to four pints of Guinness”. The McCormack case also had the additional aggravating factors that two people were killed as a result of the dangerous driving and also that at the time of the incident the accused was overtaking. Nonetheless, the sentencing court did not impose a custodial sentence but imposed a fine only. On an application for review brought by the Director of Public Prosecutions, this Court took the view that the failure to impose a custodial sentence was an error in principle and determined that three years was the appropriate sentence. Nonetheless, the Court felt it appropriate that the entire sentence be suspended having regard, in particular, to the character of the accused which it clearly regarded as a significant mitigating factor.

DECISION
This Court is satisfied that the sentencing judge could not be regarded as having committed an error of principle per se simply because she decided to suspend all of a sentence of imprisonment imposed in respect of an offence of dangerous driving causing death even where an aggravating factor might also be present. The sheer weight of mitigating factors might suggest such a course, although obviously such cases will, as suggested by counsel for the Director, be the exception rather than the rule.
The factors which the sentencing judge took very much into account are those which this court specified in The People (Director of Public Prosecutions) v. Sheedy as the mitigating factors relevant to sentencing for this offence, being respectively:-
(a) The plea of guilty
(b) The absence of previous convictions
(c) The presence of remorse
(d) The effect on the accused into the future.
The trial judge was entitled to have regard to the fact that in this case the respondent had made a full admission, had co-operated with the investigation and had indicated an early plea. She was also entitled to take into account that the respondent sustained significant physical injuries in the accident which required an extended stay in hospital. She was also entitled to take into account that in the immediate aftermath of his release from hospital the respondent was in a poor mental condition and had attended an initial session of counselling. He attended a G.P. six weeks after the accident and was referred for psychiatric follow up. He was on medication for depression and had suicidal ideas. As of the time of sentencing and since he has been engaged in a course of counselling.
The learned trial judge was also entitled to take into account that prior to the injuries sustained in the collision the respondent had a good working history. He had worked since leaving school (after third year) as a glazier with various companies.
Since it first heard an appeal under s. 2 of The Criminal Justice Act, 1993 in The People (Director of Public Prosecutions) v. Byrne [1995] 1 ILRM 279, this Court has repeatedly emphasised that when considering an application to adjust a sentence on the grounds of undue leniency, the Court should afford great weight to the trial judge’s reasons for imposing sentence and that nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court.
While satisfied as to the trial judge’s entitlement to suspend a sentence herein, the Court is of the view that this approach in the instant case served only to meet the requirements of personal deterrence insofar as the accused was concerned and did not satisfy the requirement for general deterrence which the Court is satisfied should constitute an element of sentencing policy in cases of this nature. The Court is of the view that the sentence imposed in this case does not adequately address this latter consideration and that the learned trial judge was in error in failing to attach due weight to this consideration.
The facts of this case do not suggest that this is an appropriate case for the court to lay down particular guidelines. That is because it lacks many of the features normally associated with drink driving offences. Firstly, the respondent had behaved responsibly for most of the evening and had taken a lift to and from the location of the function. Secondly, his decision to use his girlfriend’s car to go and get food from the late night fast food outlet was clearly an impromptu decision very much at odds with his behaviour for most of the evening in question. Thus the Court will confine itself to stating that where the offence of dangerous driving causing death is aggravated by an additional factor, such as the consumption of alcohol, the sentence imposed should include an element of general deterrence. The Court is not satisfied that the suspension of the entire sentence without more is sufficient to meet the requirement that the sentence should meet both the circumstances of the particular crime and the particular offender and at the same time provide an element of general deterrence for society as a whole.
With this consideration in mind, the court adjourned this hearing with a view to receiving further submissions as to whether a community service order could be made in respect of the accused under the provisions of The Criminal Justice (Community Service) Act, 1983.
Section 4 of the said Act provides:-

“(1) A court shall not make a community service order unless the following conditions have been complied with:

(a) the court is satisfied, after considering the offender's circumstances and a report about him by a probation and welfare officer (including, if the court thinks it necessary, hearing evidence from such an officer), that the offender is a suitable person to perform work under such an order and that arrangements can be made for him to perform such work, and
(b) the offender has consented.

(2) Before making a community service order in respect of an offender the court shall explain to him—

(a) the effect of the order, and in particular, the requirements of sections 7 (1) and 7 (2),

(b) the consequences which may follow under sections 7 (4) and 8 if he fails to comply with any of those requirements, and

(c) that under this Act the District Court may review the order on the application of either the offender or a relevant officer.”

The Court has received a report dated 6th November, 2007 from Phil Lyons, Probation Officer, who is attached to the Probation Service Office at Anne Street, Wexford in which, inter alia, it is stated:-

“Mr. O’Reilly is aged 30 and while he has suffered injuries in the accident, he has confirmed that he is able to do light work, and his G.P.’s note confirms this. I have explained to him the duties and responsibilities as laid down under the Criminal Justice(Community Service) Act, 1983 and the consequences of non adherence to these criteria. He has given his consent to completing a community service order should the court so decide. I can confirm that there is a community service project available in Wexford Town with a local soccer club which provides sporting opportunities for young people in the area. The work involves general maintenance of the grounds and clubhouse. In view of all the elements outlined, I deem him to be a suitable candidate for community service.”

The Court is strongly of the view that the particular facts of this case are such as to suggest that the imposition of such an order is appropriate. While in other cases the imposition of a sentence, even a suspended sentence, might be required to both punish and deter a particular offender from re-offending, it is manifest from all the evidence in this case that the respondent is most unlikely to re-offend. This was the trial judge’s own opinion and conclusion and was based on her own evaluation and assessment of the respondent.
Having regard to both the requirement for general deterrence and having regard also to all the mitigating factors, and having regard to the further requirement that the Court keeps in mind the ultimate rehabilitation of the respondent, the Court is satisfied that it should quash the sentence imposed by the learned trial judge and in lieu of the suspended sentences should require the accused to work a total of 240 hours under a community service order which the Court will make pursuant to s. 5 of The Criminal Justice (Community Service) Act, 1983. This form of sentence will also have the important added feature that it will constitute a plainly visible form of general deterrence for other road users in the locality where this offence occurred and where all the affected parties reside.
The Court will also leave intact the disqualification order which disqualifies the accused from driving for a period of six years.