Director of Public Prosecutions v O'Dowd

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 15 June 2023
• Neutral Citation: [2023] IECA 157
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 137/2023

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

John O'Dowd

Appellant

[2023] IECA 157

Edwards J.

McCarthy J.

Kennedy J.

Record No: 137/2023

THE COURT OF APPEAL

APPROVED JUDGMENT FOR ELECTRONIC DELIVERY

NO REDACTION NEEDED

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 15 ^th of June 2023 .

Introduction

1 . Before this Court is an appeal brought by Mr. O'Dowd (i.e. “the appellant”) against the severity of the sentence imposed on him by the South Eastern Circuit Criminal Court sitting in Wexford town on the 1 ^st of April 2022. The appellant had been charged with the following counts (Bill No. WXDP0127/2020):

• • One count (count no. 1) of careless driving causing death, contrary to s. 52(1) and (2)(a) of the Road Traffic Act 1961 (i.e. “the Act of 1961”), as substituted by s. 4 of the Road Traffic (No. 2) Act 2011;

• • One count (count no. 2) of driving of dangerously defective vehicle, contrary to s. 54(1) and (4) of the Act of 1961, as substituted by s. 4 of the Road Traffic (No. 2) Act 2011 and by s. 46 of the Road Safety Authority (Commercial Vehicle Roadworthiness) Act 2012, and;

• • One count (count no. 3) of use of a vehicle without excise duty, contrary to s 71(1) of the Finance Act 1976, as amended by s. 63 of the Finance Act 1993.

2 . The appellant entered a guilty plea in respect of count no. 1, and the sentencing court took count nos. 2 and 3 into consideration when imposing sentence. The court below ordered (i) that the appellant be disqualified from holding a driving license for a period of 4 years from the date of sentencing, and further ordered (ii) that the appellant be imprisoned for the period of 1 year, which custodial sentence was suspended in its entirety for a period of 1 year.

3 . The appeal against sentence is confined to the length of the disqualification period.

Factual Background

4 . The following summary of the factual background to the appellant's offending is compiled with reference to the transcript of the 1 ^st of April 2022 on which date a Detective Garda Jamie Jordan (otherwise “D/Garda Jordan”) gave evidence to the sentencing court.

The Collision

5 . On the 17 ^th of September 2019, the appellant was driving an Iveco Daily van along the R741 Gorey to Wexford Road, at Knockskimolin, Oulart, County Wexford, when it collided with the rear of a Volkswagen Polo driven by a Ms. Katie Grimes, as the latter was making her way with her mother, seated in the front passenger seat, and boyfriend, seated in the back of the vehicle, to Wexford Town. The sentencing court was provided with a report compiled by a forensic collision investigator which illustrated the layout of the road where the collision took place. It was described as a carriageway governed by an unbroken line, except for a portion of the road where there is a right-hand turn (changing direction from an otherwise northbound course towards Gorey to an eastbound course towards Kilmuckridge). It was Ms. Grimes' intention to execute that right-hand turn, and for this purpose she had slowed her speed and turned on the Volkswagen's right indicator. She was stationary, on account of her inability to execute the turn while traffic was oncoming. While stationary, Ms. Grimes had an opportunity to check her mirror and she could see the appellant's van coming behind her, which she anticipated would pass her by. Not realising the danger that this van posed, Ms. Grimes had her Volkswagen in first gear and her foot on the brake, indicating and preparing to manoeuvre onto the Kilmuckridge Road. It is then she heard the screeching of tyres and the sound of skidding from behind, all followed by a “ bang” caused when the van/trailer combination, driven by the appellant, struck the Volkswagen from behind.

6 . Following this collision, Ms. Grimes observed that there was silence in the Volkswagen, that the deceased was unconscious and was leaning on her chest, and that her boyfriend was unresponsive also. Considerable damage was caused to her Volkswagen. Distraught, Ms. Grimes got out of the vehicle and called for help, particularly conscious of her mother's need for medical attention. A passing vehicle stopped and provided assistance, and subsequently an ambulance was called. Ms. Grimes' boyfriend eventually came to and, with the assistance of the parties in attendance, managed to make his way out of the damaged vehicle complaining of a sore back. While waiting on the emergency services, those in attendance attempted to administer CPR to the deceased.

Medical Evidence

7 . Upon arrival at Wexford General Hospital, Mrs. Alison Grimes was pronounced dead. An autopsy report was made available to the sentencing report. It noted that the deceased was 50 years of age. Blood was observed coming from her nose, and it was observed that there was a right periorbital haematoma, minor bruising over the left eye and chin, superficial bruising to the anterior aspect of the thighs and chest area, and further that there was no evidence of any seatbelt injury. The cause of death was determined, and was stated to have been a very surreal craniocerebral trauma, accompanied by multiple rib fractures.

8 . The rear seat passenger in the Volkswagon, a mr Cullen, was also initially non-responsive, although he came around and with the assistance of persons who came on the scene managed to exit the car. He is believed to have sustained a back injury.

Forensic Collision Investigation

9 . A forensic collision investigation was conducted by a Garda Tom Bolger (otherwise “Garda Bolger”) who subsequently prepared a report which was provided to the sentencing court. It described the slowing down and stopping of the Volkswagen in preparation to execute a right-hand turn and that it was rear-ended by the appellant's Iveco. It further described the layout of the road, and noted that the surface of the road was in good repair, with no evidence of any contaminants. Skid tests conducted by Garda Bolger yielded results that indication that the road condition did not in any way contribute to the collision. A Trimble (laser scanner) was employed by Garda Bolger to construct a 1:500 scale map of the vicinity. It was noted that the point of impact was marked by two tyre scuff marks that could be attributed to the rear right-hand side wheel of the Volkswagen. Additionally, further tyre marks were to be seen going back some distance before the point of impact. Garda Bolger reported that these marks were indicative of a brake that was fully locked, and the freshness of the marks were consistent with the track of the Iveco's front tyres. The length of these marks were measured at 33 metres. After 23.2 metres, there was a substantial deviation in these tyre skid marks was manifest, which Garda Bolger attributed to some force acting against the vehicle as it was skidding. He was satisfied that this deviation occurred when the Iveco collided with the Volkswagen. It was further observed that from the point of impact the Volkswagen was shunted some 19 metres until it came to a stop, both vehicles travelling together and coming to a stop near the hard shoulder.

10 . Garda Bolger provided an analysis based on his examination of physical evidence discovered at the scene, and his examination of the mechanical condition of the vehicles involved. He concluded:

“ Approaching the collision site from the direction of travel of both the Volkswagen and the Iveco van, there was an unobstructed view to where the collision occurred, the area of impact, from a distance of 148 metres. This is more than adequate distance to observe, react and bring a roadworthy vehicle to a complete stop, while driving at or within the posted speed limit.”

11 . Skid tests conducted by Garda Bolger indicated that a car or van in a roadworthy condition would take 41.3 metres to skid to a stop from a speed of 80 kilometres per hour, the speed limit of the road. It would take 23.2 metres from a speed of 60 kilometres per hour. Garda Bolger, however, was not definitive with regard to the speeds at which the Iveco was travelling at the time it collided with the Volkswagen. However, it was said that the Iveco was travelling in excess of the speed that would have allowed it to have come to a safe stop and not collide into the rear of the Volkswagen.

12 . Photographs of the damaged vehicles were exhibited. It could be seen that there was a crease mark on the bonnet of the Iveco, and the back of the Volkswagen was rendered “ almost hollow”. The damage to the Volkswagen, and its roadworthiness, was further described:

“[…] the rear of the Volkswagen Polo was badly damaged. Both rear quarter panels boot lid, boot front, rear bumper, rear light clusters were badly damaged. The damage included damage to the rear driver's side wheel, which was wedged against the bodywork and the tyre now deflated. This was the tyre or wheel associated with the tyre scuff mark which commenced at the area of impact. The car was in first gear when [Garda Bolger] examined it. Both the driver and the front seat passenger seat belts had been worn, no airbags were deployed. The car was examined by the PSV inspector or public service vehicle inspector, Garda Dean Ó Cualáin, and his report concluded that the vehicle, the Volkswagen Polo was in a good roadworthy condition prior to the collision […]”.

13 . The damage to the Iveco, and its roadworthiness, was also described:

“[…] we can see there that the van had significant frontal damage, the front bumper grill bonnet and radiator were damaged, the interior of the van was extremely untidy with a number of items discarded in the driver's footwell. The forward view from the driver's seat was clear, the van was in fourth gear and the driver's seat belt had not been worn at the time of the impact. The Iveco van and trailer was examined by the PSV inspector, again...