DPP v Cash

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] IECA 199
• Court: Court of Appeal (Ireland)
• Date: 31 July 2015

[2015] IECA 199

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

52/14

DPP v Casey

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Sean Casey

Appellant

Sentencing – Dangerous driving causing death and serious bodily harm – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly lenient

Facts: The appellant, Mr Casey, in April, 2013, and five others, all of whom were friends, were out socialising together in the Harbour bar in Leap, Co. Cork. Sometime later the appellant drove his car to Skibbereen which was 10km away. He crashed into a lamp post at Marsh, near the Schull Road Roundabout. Ms Johnson, one of the two female passengers, was pronounced dead at the scene. Ms Petford was treated at the scene and removed to hospital. She suffered serious spinal injuries and was rendered quadriplegic. All other casualties made a full recovery. In May, 2013, the appellant was arrested on suspicion of dangerous driving causing death and was detained and made full admissions in relation to the events surrounding the night of the fatal collision. In February, 2014, the appellant pleaded guilty to the offence of dangerous driving causing death and serious bodily harm contrary to s. 53(1) of the Road Traffic Act 1961. The respondent was sentenced to seven years imprisonment at the Circuit Criminal Court in Cork for this offence and disqualified from driving for 30 years. The appellant appealed to the Court of Appeal against the severity of sentence imposed. The appellant contended that the sentencing judge erred in principal in: 1) holding that the circumstances of the dangerous driving in the index case was such as to put it at the absolute apex of the dangerous driving scale meriting ten years imprisonment before applying mitigating factors and in handing down a sentence that was excessive, disproportionate and in all the circumstances inconsistent with precedent sentences imposed by the Court of Criminal Appeal and with other sentences handed down by the sentencing judge himself in similar cases; 2) failing to take proper and/or adequate account of the mitigating factors in determining what reduction ought to be applied to the appropriate sentence; 3) failing to have proper and adequate regard for the rehabilitation of the appellant both in the length of the sentence and the period of disqualification from driving imposed, moreover having regard to the age of the appellant and the nature of his work in plant hire; 4) his interpretation of the evidence relating to (a) the return of the car keys to the appellant in the bar, (b) relating to the unwarranted inference that he was driving a big powerful car, (c) that the appellant was nearly five times over the legal drunk driving limit; 5) failing to take account of the retributive effect of the loss suffered by the appellant by reason of his conviction with particular reference to his loss of standing within his family and the community. The respondent, the DPP, submitted that the correct approach for an appeal court is to apply the following general propositions: 1) The Court ought not to intervene to impose a sentence it might prefer to impose in the absence of error of principle by the sentencing judge; 2) The sentencing judge is in the best place to weigh up the factors in each case, both mitigating and aggravating; 3) Each case must be viewed on its own facts and circumstances, particularly in these types of cases given the wide variety of circumstances, aggravating factors and mitigating features.

Held by Sheehan J that, having considered DPP v James Connors [2008] IECCA 163 and DPP v Shovelin [2009] IECCA 44, the sentence imposed by the sentencing judge was out of line with other decided cases and accordingly the Court held that the sentencing judge erred in principle in holding that this case was at the absolute apex of dangerous driving causing death cases, attracting as a starting point a ten year sentence. The Court also found that there was no evidence to support the sentencing judge in his finding that the appellant had inveigled his keys back from the bar assistant; as the sentencing judge had deemed this to be an aggravating factor, this also resulted in an error of principle in the sentencing judge”s approach to sentence.

Sheehan J held that the Court would set aside the original sentence and would impose a new sentence in place of the original one following a further sentence hearing.

Appeal allowed.

1 Judgment of the Court delivered on the 31st day of July 2015 by Mr. Justice Sheehan

2 1. This is an appeal against the severity of sentence imposed on the appellant at the Circuit Criminal Court in Cork on the 17th February, 2014.

3 2. On that date the appellant pleaded guilty to the offence of dangerous driving causing death and serious bodily harm contrary to s. 53(1) of the Road Traffic Act 1961, as substituted by s. 4 of the Road Traffic (No. 2) Act 2011. The respondent was sentenced to seven years imprisonment for this offence and disqualified from driving for 30 years.

4 3. The appellant contends that the sentencing judge erred in principal on five separate grounds set out in his submissions in the following manner:

5 1. The learned sentencing judge erred in principle in holding that the circumstances of the dangerous driving in the index case was such as to put it at the "the absolute apex of the dangerous driving" scale meriting ten years imprisonment before applying mitigating factors and in handing down a sentence that was excessive, disproportionate and in all the circumstances inconsistent with precedent sentences imposed by the Court of Criminal Appeal and with other sentences handed down by the learned sentencing judge himself in similar cases.

6 2. The learned sentencing judge erred in principle in failing to take proper and/or adequate account of the mitigating factors in determining what reduction ought to be applied to the appropriate sentence on taking in such mitigating facts into account namely:

7 (a) the plea of guilty,

8 (b) the accepted genuine remorse of the appellant,

9 (c) the evidence as to the good character of the appellant by Patricia O'Mahony and Michael Dineen,

10 (d) his excellent work record,

11 (e) the fact that he had not come to garda notice for three years since his minor previous convictions nor since the index offences, and

12 (f) the age of the appellant.

13 3. The learned sentencing judge erred in principal in failing to have proper and adequate regard for the rehabilitation of the appellant both in the length of the sentence (seven years) and the period of disqualification from driving imposed (30 years), moreover having regard to the age of the appellant and the nature of his work in plant hire.

14 4. The learned sentencing judge erred in principle in his interpretation of the evidence relating to (a) the return of the car keys to the appellant, (b) relating to the unwarranted inference that he was driving a big powerful car, (c) that the appellant was nearly five times over the legal drunk driving limit.

15 5. That the learned sentencing judge erred in principle in failing to take account of the retributive effect of the loss suffered by the appellant by reason of his conviction with particular reference to his loss of standing within his family and the community.

16 4. In order to consider these grounds of appeal it is first of all necessary to set out the background to this offence.

17 5. On Sunday the 7th April, 2013, the appellant and the five passengers in his car, all of whom were friends were out socialising together. They ended up in the Harbour bar in Leap, Co. Cork. The appellant's car key was picked up by one of the bar assistants in the public house where they were socialising and she told the appellant that she was putting it behind the counter to which the appellant consented.

18 6. At some stage later one of his male friends also being a passenger in the motor car asked the bar assistant for the key on a number of occasions and eventually she relented and gave it to him. Sometime later the appellant drove his car to Skibbereen which was 10kms away. At about 1.45 am he crashed into a lamp post at Marsh, Skibbereen, near the Schull Road Roundabout, otherwise known as Hurley's Roundabout.

19 7. Megan Johnson, aged 22 years, one of the two female passengers, was pronounced dead at the scene. Kate Petford was treated at the scene and removed to hospital. She suffered serious spinal injuries and was rendered quadriplegic. All other casualties have made a full recovery.

20 8. The appellant called the emergency services and then left the scene of the accident. Some time later he was arrested on suspicion of drunk driving and taken to Clonakilty garda station where he provided a blood sample that was found to contain 204mgms of alcohol per 100mls of blood. The drink driving limit at the material time was 50mgms of alcohol per 100mls of blood. The appellant admitted driving and being involved in the accident.

21 9. Garda forensic investigations established with the aid of CCTV at the roundabout that the appellant's car travelled into the roundabout at approximately 80kms per hour. The speed limit in the area was 50kms per hour. The garda forensic expert also suggested that the maximum speed the vehicle could travel around the roundabout when wet was between 34kms and 42kms per hour.

22 10. On the 4th May, 2013, the appellant was arrested on suspicion of dangerous...