DPP v Flynn

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 30 October 2020
• Neutral Citation: [2020] IECA 294
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 19/2016

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

V

MUIRIS FLYNN

Appellant

[2020] IECA 294

Edwards J.

McCarthy J.

Donnelly J.

Record No: 19/2016

THE COURT OF APPEAL

Sentencing – Dangerous driving causing serious bodily harm – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Flynn, on the 30th April, 2019, came before Roscommon Circuit Criminal Court and pleaded guilty to Counts 1, 2, and 3 on the indictment, being: a count of dangerous driving causing serious bodily harm, contrary to s. 53(1) and (2)(a) of the Road Traffic Act 1961; a count of driving while exceeding the lawful alcohol limit, contrary to s. 4(4)(b) and 4(5) of the Road Traffic Act 2010; and a count of driving without insurance, contrary to s. 56(1) and (3) of the 1961 Act. On the 8th October, 2019 the respondent was sentenced to imprisonment for four years on Count 1, to date from the 11th October, 2019 with the final thirty months of the said sentence suspended. He was further sentenced to imprisonment for four months on Count 2, to run concurrently with the sentence on Count 1 and to date from the 11th October, 2019.The respondent further received the following disqualifications from driving: eight years to date from the 8th October, 2019 on Count 1; three years to date from the 8th October, 2019 on Count 2; and three years to date from the 8th October, 2019 on Count 3. It was further ordered that the details of all three convictions and disqualifications be endorsed on the respondent’s driving licence. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal seeking a review pursuant to s. 2 of the Criminal Justice Act 1993 of the sentence imposed on Count 1 claiming that it was unduly lenient. The applicant’s Notice of Application set forth the following grounds: (1) the sentencing judge erred in principle by fixing the ‘headline indication’ at a point on the spectrum which was inconsistent with the gravity of the offence; (2) the judge erred in principle by applying insufficient weight to a number of important aggravating factors surrounding the commission of the offence; (3) the judge erred in principle in the manner in which he structured the sentence imposed by applying undue weight to the mitigating factors present which resulted in him failing to adequately reflect the seriousness of the offending behaviour before him; (4) the judge erred in principle in circumstances where the sentence imposed failed to adequately reflect the principles of specific and/or general deterrence.

Held by the Court that because the headline sentence that had been nominated was inappropriately low, normative limits (in terms of what was proportionately required in terms of an ultimate sentence having regard to the gravity of the offence) were breached when that headline sentence was discounted to the extent that it was, resulting in an unduly lenient overall sentence. The Court quashed the sentence imposed by the court below and re-sentenced the respondent.

The Court nominated a headline sentence of six years imprisonment. The Court considered that the mitigating circumstances in this case required it to discount from the headline sentence by 50%. The Court imposed a fine on the respondent of €20,000, with six months’ imprisonment in default. The Court reimposed the disqualification of eight years imprisonment in respect of the offence of dangerous driving causing serious injury, to date from the 8th October, 2019. The Court suspended the unserved balance of the net custodial sentence of three years that it imposed upon him on the same conditions as applied to the suspended portion of the sentence imposed by the court below; the revised custodial sentence was to date from the 11th October, 2019, as in the case of the custodial sentence imposed by the court below. The court saw no reason to interfere with the sentences imposed by the court below for the offences of driving under the influence and driving without insurance. The Court held that all sentences were to run concurrently.

Appeal allowed.

JUDGMENT of the Court delivered by Mr Justice Edwards on the 30 ^th of October 2020.

Introduction

1 On the 30 ^th of April, 2019, the respondent came before Roscommon Circuit Criminal Court and pleaded guilty to Counts No's 1, 2, & 3 on the indictment, being a count of dangerous driving causing serious bodily harm, contrary to s.53(1) and (2)(a) of the Road Traffic Act. 1961 as substituted by s.4 of the Road Traffic (No 2) Act, 2011; a count of driving while exceeding the lawful alcohol limit, contrary to s. 4(4)(b) and 4(5) of the Road Traffic Act. 2010: and a count of driving without insurance, contrary to s. 56(1) and (3) of the Road Traffic Act 1961, respectively.

2 On the 8 ^th of October 2019 the respondent was sentenced to imprisonment for four years on Count no 1, to date from the 11 ^th of October 2019 with the final thirty months of the said sentence suspended. He was further sentenced to imprisonment for four months on Count No 2, to ran concurrently with the sentence on Count No 1 and to date from the 11 ^th of October 2019. The respondent further received the following disqualifications from driving, namely eight years to date from the 8 ^th of October 2019 on Count No 1; three years to date from the 8 ^th of October 2019 on Count No 2; and three years to date from the 8 ^th of October 2019 on Count No 3. It was further ordered that the details of all three convictions and disqualifications be endorsed on the respondent's driving licence.

3 The applicant now seeks a review of the said sentence imposed on Count No 1 claiming that it was unduly lenient.

Factual Background

4 The court heard evidence from Garda Martin McTiernan that on the 24 ^th of September 2017, at 9:30 AM, he received a report that a person had been seriously injured in a road traffic accident involving a cyclist at Doon, Boyle, County Roscommon. On arrival at the scene at 9:40 AM he noted that the weather conditions were dry but that the road surface was wet. There were two vehicles ahead of him on the road. He further noted that there were two females in cycling clothing lying face down on the road and roaring in pain. Their bicycles were smashed upon the road and there were bits of debris all over the road. An ambulance crew was in attendance and the witness went to the aid of the women on the ground in the first instance.

5 Garda McTiernan subsequently became aware of the presence of third female, who was also wearing cycling gear, at the scene and he established that her name was A O'C(1). Ms. O'C informed him that the two cyclists who were injured were her sister Ms. A O'C(2) and their friend Ms. C.C. She related that they were out cycling when her sister and their friend were struck from behind at speed by him maroon coloured Ford Focus, registration number 03LS611.

6 Ms. A O'C(1) pointed out a young male who was also at the scene as being the driver of the Ford Focus. He was standing beside C.C who was lying face down the road. Garda McTiernan spoke to the male who confirmed that he had been the driver of the vehicle in question. He gave his name as Muiris Flynn. Garda McTiernan made a demand for production of his driving license and certificate of insurance. In doing so he noticed a smell of alcohol from Mr. Flynn's breath and noted also that his eyes were glazed. He conducted a roadside breast test and the result was a fail. Garda McTiernan then arrested Mr. Flynn and he was conveyed to Carrick on Shannon Garda station. At Garda station Mr. Flynn provided to breath specimens which were analyzed using an Evidenzer machine. They each yielded a reading of 80 μg of alcohol per 100 mL of breath. This was nearly four times the legal limit for an unspecified driver, the limit being 22 μg of alcohol per 100 mL of breath. As the reading was above 67 μg of alcohol per 100 mL of breath it would attract a mandatory three-year disqualification from driving. Arising from the evidence provided by this breath analysis the respondent, Mr. Flynn, was charged with an offence contrary to s. 4 of the Road Traffic Act 2010.

7 The respondent produced what initially appeared to be a valid policy of insurance. However, subsequent inquiries with the insurance company indicated that the policy did not cover him on the occasion in question. The policy of insurance, which was current, had been issued in respect of a vehicle that he had previously owned but had disposed of it prior to the accident. The maroon Ford Focus belonged to his father. While the policy would have covered him to drive any vehicle not belonging to him if he had retained ownership of the vehicle to which the policy related, he was no longer covered by it in circumstances where he had ceased to be the owner of that vehicle. The respondent offered the explanation to Gardaí that after he had transferred ownership of the vehicle to which the policy related to his girlfriend, he had simply overlooked requesting his insurer to transfer the insurance cover which his motor insurance policy offered to his father's old car. i.e., the maroon Ford Focus, which he would now be driving.

8 A statement was taken from Ms. A O'C(1) in which she described the clothing being worn by her sister and her friend. Her sister's gear was bright, white in colour with yellow fluorescent socks half way up her legs. Her friend Ms. C. was wearing a fluorescent orange jacket.

9 The accident had happened after a bend leading on to a long straight stretch of road. It was a narrow country road governed by an 80 km/h speed limit. According to Ms. A O'C(1) the three cyclists were proceeding in single file on the left-hand side of the road near the verge and were a good distance from the bend behind them when suddenly the...