THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.
222/13
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
JUDGMENT of the Court delivered on the 1st day of November 2016 by
Mr. Justice Sheehan
1. The appellant pleaded guilty to dangerous driving causing serious bodily harm and was sentenced to seven years imprisonment with the final year of the said sentence suspended for a period of two years provided that he abstain from alcohol for two years following his release from prison and further that he keep the peace and be of good behaviour towards all the people of Ireland for the said period. The offence occurred on the 17th November, 2012 and the appellant was sentenced on the 31st July, 2013, at a sitting of the Circuit Criminal Court in Clonmel, Co. Tipperary.
2. The accident occurred at about 5.00 am in the morning when the appellant lost control of his car and collided with the injured party Mrs. O’Connell who happened to be walking home at the time. The injured party was then carried into the grounds of Northfield House, Clonmel, the appellant having driven through the boundary wall. The appellant remained at the scene and endeavoured to give assistance before he was arrested by the gardaí. He also pleaded guilty to driving with excess alcohol in his blood contrary to ss. 4(2)(b) and 5 of the Road Traffic Act 2010. He was three times over the legal limit. At a time he was uninsured and disqualified from driving.
3. In the course of her victim impact report the injured party stated as follows:
“As a result of this accident I have had my left leg amputated through the knee. I have had fourteen operations in an attempt to save my leg, but it could not be saved. I have also had a fractured nose, cracked ribs, injuries to my right leg, two black eyes and I was bruised all over. I spent four months in hospital after the accident and I now attend the National Rehabilitation Centre in Dun Laoghaire and will be getting fitted for my prosthetic leg on the 31st July, 2013. I am then going to undergo further rehab for thirteen weeks. I will be staying in the Centre as an in patient. I have been in a wheelchair since coming out of hospital. As a result I have suffered a traumatic brain injury and this resulted in slight brain damage. This affects me in the way that I now have very bad mood swings. It is literally one minute I am happy and the next minute I am angry. My memory is not as good these days as well and I now forget names, places, appointments etc.”
4. The report then went on to disclose further adverse psychological impacts that the accident had had on the victim as well as how it had affected her marriage, her family life and her relationships with her children and grandchildren.
5. The appellant is a 30 year old labourer who is in a relationship and is the father of two young children. He has 51 previous convictions which relate to events over a twelve year period and are mainly convictions for road traffic offences including one for drink driving. However, apart from road traffic matters he has a previous conviction for assault, a previous conviction for possession of drugs, and a previous conviction for the unauthorised possession of a firearm and ammunition. 25 of the previous convictions recorded against him had occurred when he was under twenty years of age and between 2005 and 2010 he had no convictions recorded against him. In the course of his sentencing remarks the learned sentencing judge said:-
“Well I have to say that having regard to the aggravating factors here that this is the single most serious matter which has come before me under s. 53 of the Road Traffic Act on indictment. There are many aggravating factors here. The fact the Mr. Power drove while disqualified seems to me to be a singular feature of the case. He is somebody who had been disqualified by courts on numerous previous occasions and to compound that he drove on this occasion with a combination of alcohol and prescribed drugs and this was recklessness of a very high order indeed and it is no surprise whatever that there are such serious consequences here. The consequences are indeed very serious for the unfortunate Mrs. O’Connell. The contents of the victim impact report are extremely harrowing.”
The sentencing judge went on to note what Mrs. O’Connell had stated in the course of her victim impact report.
6. With regard to the mitigating factors the sentencing judge noted the following:-
“First of all there is a plea of guilty. This was entered I am told at the first available opportunity having regard to the timescale involved that seems clear and unsurprising and it is of a piece with the admissions which Mr. Power made when he was interviewed about this matter in February of this year and indeed the apology which he made then, the expression of remorse in relation to somebody that I learn he actually he knew before this event. These all taken together are extremely important. Mrs. O’Connell at least knew that she did not have to give evidence about this and be cross examined in an adversarial form. And of a piece with this too is the fact that Mr. Power’s remorse was expressed in a concrete way in that he remained at the scene of this accident and rendered what assistance he could to the unfortunate lady who suffered so grievously at his hands. That is to his credit and he will get full credit for that.”
7. Two grounds of appeal are advanced by counsel on behalf of the appellant:-
8. Counsel for the appellant relied on the case of DPP v. Belov [2008] ICCA p. 24 as being an appropriate comparator and also relied on a number of recent decisions of this Court including DPP v. Casey [2015] IECA 199 and ICA 278 and DPP v. Kelly [2015] IECA.
9. Counsel for the respondent relied in particular on a recent judgment of this Court in DPP v. Finbar O’Rourke CA 276/2015 delivered on the 24th October, 2016. While counsel conceded that that case was not on all fours with the present appeal he nevertheless pointed out that the appellant in the O’Rourke case had also consumed an excessive amount of alcohol.
10. The essential question therefore that the court must ask is whether or not the sentence was excessive. Unlike a number of cases which this Court has dealt with recently, where death and serious injury have resulted from dangerous driving the appellants in those cases have had no previous convictions or relatively minor ones. In this case not only was the appellant disqualified at the time of the accident, but he is someone with significant previous convictions having a previous conviction for drink driving and having been previously disqualified from driving on more than one occasion.
11. While the Court of Criminal Appeal deemed the appropriate sentence in the Belov case to be in the two to four year range, Mr. Belov was a young man with no previous convictions. We also note that that judgment was delivered eight years ago. As Mahon J. stated in the course of delivering the courts judgment in the O’Rourke case:-
“There has been a progressive increase in sentences imposed in dangerous driving causing death cases over the past fifteen years or so.”
12. This remark is also applicable to cases of dangerous driving causing serious injury. Undoubtedly the sentence in this case was a significant one. Bearing in mind that we are bound to afford a margin of appreciation to a sentencing judge we are satisfied that the judge in this case was entitled to identify a sentence of seven years imprisonment as the appropriate headline sentence, particularly having regard to the horrific injuries suffered by Mrs. O’Connell as well other aggravating factors in the case namely, that the appellant was three times over the legal limit insofar as his consumption of alcohol was concerned and the fact that he was driving at a time when he was disqualified.
13. The sentencing judge saw fit to mark the mitigation in this case by suspending the final twelve months of the seven year sentence. Again in reviewing this aspect of the appeal we are also obliged to afford a margin of appreciation to the sentencing judge. We are satisfied that he gave the appellant sufficient credit for the mitigating factors and accordingly we dismiss this appeal.
