DPP v Coen
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 15 December 2022 |
| Neutral Citation | [2022] IECA 308 |
| Docket Number | Record Number: 100/2021 |
[2022] IECA 308
McCarthy J.
Kennedy J.
Donnelly J.
Record Number: 100/2021
THE COURT OF APPEAL
JUDGMENT of the Court delivered ( ex tempore) on the 15 th day of December 2022 by Ms. Justice Isobel Kennedy.
. This is an appeal against severity of sentence. On the 18 th of May 2021, the appellant was sentenced to 4 years' imprisonment with the final year suspended for an offence of dangerous driving causing serious bodily harm contrary to s. 53 of the Road Traffic Act, 1961, as amended, and a summary offence of failing or refusing to comply with a requirement to provide a sample contrary to s.12 of the Road Traffic Act, 2010. The sentencing judge disqualified the appellant from holding a driving licence for a period of 10 years on the first count. In truth, this appeal focuses on the length of the disqualification period.
. On the 1 st December 2019, An Garda Síochána received a call reporting a serious road traffic accident on the N20 road between Mallow and Cork City. On arrival at the scene, Gardaí observed a Ford Focus in the middle of the left-hand lane and a Toyota Corolla in the grass verge on the left-hand side. Paramedics were at the scene and the driver of the Toyota vehicle, the injured party herein, was removed from the scene by air ambulance to Cork University Hospital. The driver of the Ford vehicle, the appellant herein, was also removed by ambulance as were the passengers of the Toyota vehicle.
. Subsequent to this, a request was made by Gardaí to obtain a sample of blood or urine from both drivers involved in the accident. The injured party provided a sample but the appellant refused.
. An investigation was launched, and a number of witnesses came forward. One witness who was travelling on the N20 from Cork towards Mallow at approximately 1:30pm recalled being behind a silver Ford Focus vehicle before Rathduff. She described that the vehicle was driving erratically over and back the white line and in and out of the hard shoulder. As she was concerned, this witness pulled in behind the Ford vehicle in Rathduff and observed the driver exit his vehicle and enter a public house there.
. At approximately 3:30pm, three further witnesses observed the same Ford vehicle driving in a similar erratic fashion. These witnesses were concerned that an accident was about to occur. Shortly after this, the Ford vehicle crossed the white line into oncoming traffic and collided with the Toyota vehicle.
. Serious collision investigators who carried out a report on the scene found that the accident occurred in the southbound lane of the N20 going from Mallow towards Cork. The Ford vehicle was traveling northbound at the time. Weather conditions were dry on the day in question. There was no defect found in either vehicle nor was there evidence of mobile phone usage or excessive speed on the part of either driver.
. In a prepared statement of the 14 th May 2020, the appellant acknowledged that he lost control of the vehicle, traversed the white line and crashed into oncoming traffic. As a result of the collision, the appellant suffered a broken left arm and bruising to the chest area. He also had to have stitches to his head.
. The injured party underwent a CT scan of her brain and cervical spine. She sustained a stable fracture to the transverse process of the seventh cervical vertebrae and multiple right sided rib fractures and contusions as well as fractures to the breastbone and pneumothorax. She had to undergo surgery and was seen by the cardio-thoracic and neurosurgical teams. The injured party's husband and daughter who were passengers in the vehicle at the time also sustained injuries however, there is no charge arising out of those.
. In her victim impact statement, the injured party described the impact of the collision like a bomb going off. Her injuries required her to be air lifted from the site of the collision and she described that her husband and daughter thought her to be dead. She was in critical condition in the CUH and now has ongoing physical and mental health issues including post-traumatic stress disorder. The injured party further outlined the long-term impact of the collision on her life. She stated that, “I haven't woken up in the last 17 months without feeling sad or being in pain. I have great difficulty being in cars.”
. The appellant was 45 years of age at the time of sentencing. He is married with one child and has four previous convictions, none of which are for road traffic offences.
. The appellant was in full-time employment at the time of the offending herein and positive testimonials were put before the sentencing court from a previous workplace of his.
. The appellant has a history of mental health issues and has availed of mental health services in an inpatient capacity four times prior to the offending herein. He has issues with alcohol.
. The sentencing judge identified a headline sentence of five years' imprisonment on the dangerous driving offence and reduced this to one of four years in light of the appellant's guilty plea and personal circumstances. The judge disqualified the appellant from driving for a period of ten years. He further suspended one year of the four-year sentence of imprisonment on the condition that the appellant does not drive for the period of the disqualification or until his licence is restored to him. In relation to the offence of refusing to provide a sample, the judge imposed a sentence of six months' imprisonment and a four year disqualification. All sentences to run concurrently.
. The judge outlined the aggravating factors to include the nature of the appellant's driving prior to the accident, the fact that the appellant had consumed alcohol immediately prior to the accident and his refusal to provide a sample pursuant to s. 12 of the Road Traffic Act, 2010. Insofar as the latter is concerned, a sentence was imposed for this offence and it does not in the circumstances in strictness constitute an aggravating factor. Whilst the refusal to provide a sample may point towards the consumption of an intoxicant, which consumption aggravates the offence, the fact of refusing to provide a sample post accident is not an aggravating factor in and of itself. In any event the appellant acknowledged that he had alcohol taken prior to the accident.
. In terms of mitigation, the judge acknowledged the appellant's early guilty plea, his young age and his absence of previous convictions for road traffic infringements. The appellant's psychiatric history and good employment record were also acknowledged.
. The appellant appeals his sentence on the following four grounds:
“i. That the sentence was excessive and disproportionate in all the circumstances.
ii. The lengthy disqualification of ten years was wrong in principle in that it hampered the Appellant's ability to rehabilitate post release, severely curtailing his prospects of getting and/or keeping employment. In doing so, the learned judge failed to afford sufficient weight to the public interest in the Appellant's rehabilitation.
iii. The disqualification from driving, or alternatively its length, was wrong in principle, in that it was disproportionate given all the circumstances of the case and given the penalty imposed by way of custodial sentence.
iv. The learned sentencing Judge did not give sufficient weight and balance to the evidence adduced in mitigation of sentence such as the Appellant's early plea of guilty, co-operation tendered during the course of the investigation, his psychological and/or depression difficulties and expression of remorse.”
. The appellant relies on the case of The People (DPP) v Shovelin [2009] IECCA 44. In that case, the predecessor to this Court reduced a sentence of seven and a half years imposed for a dangerous driving offence in circumstances where there were aggravating factors present, a notable absence of mitigating factors and the appellant had 27 previous convictions including for previous road traffic offences. It is submitted that the lesser aggravating factors herein coupled with the appellant's plea of guilty and absence of previous road traffic convictions warranted a greater divergence.
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