DPP v O'Flaherty
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 26 January 2021 |
| Neutral Citation | [2021] IECA 43 |
| Docket Number | Record Number: 103CJA/20 |
| Court | Court of Appeal (Ireland) |
| Date | 26 January 2021 |
IN THE MATTER OF S.2 OF THE CRIMINAL JUSTICE ACT,1993, AND IN THE MATTER OF:
[2021] IECA 43
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 103CJA/20
THE COURT OF APPEAL
Sentencing – Careless driving causing death and serious bodily harm – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent, Mr O’Flaherty, pleaded guilty to counts of careless driving causing death and serious bodily harm contrary to s. 52 (1) (a) of the Road Traffic Act 1961. The respondent was disqualified from driving for a period of four years and fines of €750 were imposed on each count. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency of the sentence imposed on the respondent on the 20th April 2020. The primary submission of the applicant was that the judge erred in seemingly accepting the respondent’s proposition that he only moved across out across the white line in order to avoid a perceived obstacle which the coach in front had attempted to avoid. The applicant submitted that this proposition was only contended by the respondent himself in his memorandum of interview. Moreover, it was said that in light of the prosecution evidence, the judge’s finding that the respondent’s culpability was at the lower end of the spectrum was erroneous and amounted to an error in principle. The applicant argued that the imposition of the least possible disqualification period of driving, even given the resultant consequences for the respondent together with an aggregate fine of €1500 was unduly lenient. The applicant submitted that the sentence imposed represented a substantial departure from the norm and referred to The People (DPP) v Moran [2019] IECA 5 where the accused had received a sentence of one year imprisonment suspended for two years following a conviction for careless driving causing death. The appellant further referred to The People (DPP) v Healy [2017] IECA 194 where the accused received a one-year suspended sentence in respect of a careless driving causing death conviction.
Held by the Court that, in the circumstances, having scrutinised the evidence, it was persuaded that the judge erred in principle in placing the respondent’s culpability at the lowest level. The Court was of the view that that this case fell within the upper end of the mid-range of sentence and that the blameworthiness of the respondent was more significant than that identified by the judge. The Court held that, in identifying the range as being at the lower end, the penalty imposed constituted a substantial departure from the appropriate sentence. The Court was satisfied that it was necessary to impose a sentence in the circumstances of the case, as disclosed on the evidence. The Court was satisfied that it was necessary to mark the gravity of the offence by the imposition of a sentence.
The Court held that, as the judge erred in the manner identified, it would quash the sentence imposed and re-sentence the respondent. Having borne in mind that the maximum sentence was one of two years’ imprisonment, the Court considered the appropriate sentence to be one of 16 months’ imprisonment in addition to a fine of €750.00 on each count. The Court held that it would hear submissions regarding the time period for the payment of those fines. The Court acknowledged that there were mitigating factors, and in order to give effect to those factors, it held that it would suspend the sentence on the respondent entering into a bond in the sum of €100.00 to be of good behaviour for a period of two years. The Court therefore substituted a sentence of 16 months’ imprisonment, suspended for a period of two years on the mandatory statutory condition and a fine on each count. The Court held that the respondent was disqualified from driving for a period of four years.
Appeal allowed.
This is an application brought by the Director of Public Prosecutions pursuant to the provisions of section 2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency of a sentence imposed on the respondent on the 20 th April 2020. The respondent pleaded guilty to counts of careless driving causing death and serious bodily harm contrary to section 52 (1) (a) of the Road Traffic Act, 1961 as substituted by section 4 of the Road Traffic (No. 2) Act, 2011. The respondent was disqualified from driving for a period of four years and fines of €750 were imposed on each count.
By way of background at 9am on the 15 th March 2017 a road traffic accident occurred which involved a collision between a Skoda Fabia then being driven by Mr Wall, in which his three-year-old daughter was a backseat passenger and was secured in a baby seat, and a Kia Sportage jeep which was being driven in the opposite direction.
A third vehicle, namely a four axle heavy goods truck, being driven by the respondent, was travelling west in an advanced position ahead of the Kia Sportage jeep.
Ahead of the respondent's truck was a 35 seater coach. A Ms Kilbane, who was driving a silver Toyota Corolla behind the respondent's truck, observed the oncoming Skoda Fabia coming down the hill in the opposite lane and that the respondent pulled out as if to overtake the coach. Once the respondent pulled out he jammed on his brakes and pulled straight back in. The respondent was very close to the bus at the time and it's unlikely that the respondent had a view of oncoming traffic until he had in fact pulled out. Ms Kilbane stated that the oncoming car came onto her side of the road as if it lost control, narrowly colliding with her car. A Mr McMahon, who believes he was the eighth car behind the respondent's truck, when coming from the bend observed the truck at an angle as if to suggest the respondent had pulled out and then back in as if he had seen a car approaching. As a result, the Skoda Fabia steered towards the grass verge on his side of the road, lost control and spun across the centre of the roadway and collided with the Kia Sportage.
When later questioned by gardaí the respondent stated that the coach in front of him slowed down and appeared to move out over the white line and he believed there could have been a rock or some such on the road and that the coach driver pulled out to avoid it. He stated that he indicated, pulled out and observed a car coming against him at high speed. The respondent stated that he did not see a collision occur and continued on his journey unaware that an accident had taken place.
The child sustained horrific injuries and died at the scene of the accident. The driver, her father, sustained a very traumatic brain injury, which included left subarachnoid haemorrhage and diffused axonal injury and multiple rib fractures, a left plural infusion and left-sided surgical emphysema.
In terms of sentencing the judge was of the view that the circumstances of the accident were not clear-cut. He placed culpability at the lower end of the spectrum. The judge noted that the punitive aspect of the mandatory disqualification would have a significant impact on the respondent, taking into account his profession. In terms of aggravating factors, the trial judge identified a previous conviction for driving without due care and attention on the 18th of February 2002 for which the respondent was fined €250 and, the fact that the...
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