DPP v James O'Reilly

• Jurisdiction: Ireland
• Judge: Kearns J.
• Judgment Date: 11 December 2007
• Neutral Citation: [2007] IECCA 118
• Court: Court of Criminal Appeal
• Docket Number: [2006 No.
• Date: 11 December 2007

DPP v O'Reilly

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

OF AN APPLICATION

BETWEEN

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

PROSECUTOR/ APPLICANT

AND

JAMES O'REILLY

RESPONDENT

[2007] IECCA 118

Kearns J.

Murphy J.

MacMenamin J.

[189CJA/06]

COURT OF CRIMINAL APPEAL

CRIMINAL JUSTICE ACT 1993 S2

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S56(1)

ROAD TRAFFIC ACT 1994 S49(f)(i)

DPP v GALLAGHER UNREP CCA 4.3.1994 1998/4/1072

DPP v SHEEDY 2000 2 IR 184

DPP v FALLON UNREP CCA 6.3.2000 EX TEMPORE

AG, PEOPLE v O'DRISCOLL 1972 1 FREWEN 351

DPP v MCCORMACK 2000 4 IR 356 2000/8/3024

DPP v O'D (R) 2000 4 IR 361 2000 8 3133

DPP v MCCORMACK UNREP CCA 27.4.2006 2006 IECCA 60

DPP v BYRNE 1995 1 ILRM 279

CRIMINAL JUSTICE (COMMUNITY SERVICE) ACT 1983 S4

CRIMINAL JUSTICE (COMMUNITY SERVICE) ACT 1983 S5

1 JUDGMENT of the Court delivered on 11th day of December 2007 by Kearns J.

2 This is an application brought on behalf of the Director of Public Prosecutions pursuant to s. 2 of The Criminal Justice Act, 1993, which provides:-

3 2 "(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the "sentencing court") on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

4 3 ....(3) On such an application, the Court may either-

5 (a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

6 (b) refuse the application."

7 At Wexford Circuit Criminal Court the respondent was arraigned and pleaded guilty on 3rd October, 2006 to the following counts on the indictment, namely:-

8 (a) Count No.1: Dangerous driving causing the death of Ian Rossiter on 9th day of January, 2005

9 (b) Count No. 2: Driving while under the influence of an intoxicant contrary to s. 49 (2) of the Road Traffic Act, 1961 on the same date;

10 (c) Driving without insurance contrary to s. 56 (1) of the Road Traffic Act, 1961 on the said date.

11 Having heard evidence from the investigating garda, evidence from the respondent and submissions made by counsel on his behalf, the sentencing judge imposed a sentence of five years imprisonment in respect of count No. 1 and sentences of six months imprisonment in respect of counts 2 and 3, all of which said sentences were to run concurrently but were suspended in their entirety on condition that the respondent keep the peace and be of good behaviour for a period of three years. The respondent was also disqualified from driving for a period of six years.

12 The notice of application indicates the grounds relied upon as follows:-

13 (1) The sentence of five years suspended failed to reflect sufficiently the gravity of the offence of dangerous driving causing death; in particular, the court failed to have sufficient regard to the evidence as to the nature of the dangerous driving as outlined by Garda Jason O'Farrell which indicated that the respondent had been driving dangerously some time prior to the fatal collision and completely lost control of his vehicle in the course of the fatal collision

14 (2) The trial judge failed to have sufficient regard for certain aggravating factors in the case which included the fact that the respondent was driving at a time when the quantity of alcohol in his system was in excess of the legal limit and the fact that he knowingly drove while uninsured.

15 (3) The learned trial judge gave undue weight to matters concerning the respondent which were found to be mitigating circumstances, namely:-

16 (a) His expression of remorse in evidence

17 (b) Submissions as to the impact of the incident upon the respondent, particularly given the limited nature of the evidence available to support such matters.

18 The notice further contends that by suspending the sentence in respect of count No. 1 in its entirety the trial judge failed to incorporate in the sentence a sufficient deterrent element for the offence of dangerous driving causing death.

BACKGROUND

19 On the night of 8th January, 2005 the respondent was attending a function in honour of his parents wedding anniversary at the Talbot Hotel in Wexford in the company of his girlfriend. He had a few drinks at the function following which he went back to his girlfriend's house at Mount Prospect in Wexford. He did not drive a vehicle in returning with his girlfriend from the function and there is no evidence that he was drinking prior to the function. Sometime shortly after midnight he took his girlfriend's car and drove it to the local fast food restaurant. While he was there he met a number of friends who were looking for a lift and he offered these young men a lift home. Some time after picking up these friends, the accused drove the car onto Coolcotts Lane where he was observed to be driving at some speed with tyres screeching. He appeared to lose control of the vehicle as an oncoming vehicle approached. The vehicle being driven by the respondent crossed the centre of the road, glanced off the other vehicle before returning to its correct side where it impacted with a wall. Ian Rossiter, who was travelling as a back seat passenger, received fatal injuries.

20 A sample of blood was subsequently taken from the respondent in hospital which indicated a concentration of 125 mgs of alcohol per 100 ml of blood.

21 On 16th February, 2005, the respondent made a full cautioned statement to the gardaí in which he admitted driving the vehicle on the night in question knowing himself to be uninsured and knowing that he had consumed alcohol.

22 In the course of his evidence, Garda Jason O'Farrell stated that the respondent had fully co-operated with the gardaí and had no previous convictions. The respondent himself gave evidence in which he apologised to the family of the deceased for his actions. Following a plea on his behalf by counsel, the learned trial judge (Judge Alice Doyle) imposed the sentences set out above.

23 In imposing sentence the trial judge stated:-

"I have watched the demeanour of the accused over the course of the time this case has started and it appears to me, both from what he said and his demeanour, he appears to be in his own private hell and he will have that for the rest of his life.

In my opinion the sending to jail of this young man would not benefit anyone. He has his own jail sentence and he can never forget that. He does not have to be imprisoned by walls. He has shown genuine remorse and has admitted from the very beginning that he had been drinking.

Counsel very eloquently tells us there was no malice of forethought, and I accept that. However, knowingly getting into a car with drink, knowing that he wasn't insured, there is a great degree of negligence there. From listening to his evidence, the apology that came today in court was heartfelt and certainly came straight from his heart, I thought. I hope the Rossiter family can feel that too and I know that this isn't the first time, or so he tells us, that he has apologised to them."

24 From the medical report furnished from Dr. Paul Curran, it appears the respondent remained in hospital for five or six weeks post-accident. He had sustained a serious compression fracture at T6 of his spine in the accident. He also became extremely depressed. He was subsequently referred to Dr. Liam Watters in St. Senan's Hospital for help with his depression. He was placed on significant levels of medication both for depression and for severe back pain. In September, 2006 he was referred to Mr. Thomas Glynn, orthopaedic surgeon, in Waterford Regional Hospital to see if any more could be done regarding the further management of his condition. The respondent has been unable to work since the accident and as of November, 2007 was continuing to attend for counselling to help him with depression and to help him cope with the reality of what occurred and the consequences of his actions. The respondent is 30 years of age and has no previous convictions. While he never married, he does have an eleven year old daughter who stays with him every second weekend. He is currently on disability benefit of €180 per week and is attending the New Start Programme at the Swan Training Centre in Wexford which helps people retrain for new employment.

SUBMISSIONS

25 On behalf of the Director, Mr. Michael Delaney BL argued that the trial judge erred in suspending the sentence in its entirety and that the sentence should have required the respondent to serve some time in custody so that the sentence could be seen as incorporating a sufficient element of general deterrence in respect of the offence of dangerous driving causing death where alcohol or drugs are involved.

26 He pointed out that by virtue of s. 49 (f)(i) of The Road Traffic Act, 1994, the maximum sentence for dangerous driving causing death was increased from five years to ten years. He referred to a judgment delivered by this Court on 4th March, 1994 in The People (DPP) v. Gallagher (Unreported, Court of Criminal Appeal, 4th March, 1994) which conducted a review of four previous cases which had come before the court. In each case, net sentences of between two and three years imprisonment had been imposed in respect of the offence of dangerous driving causing death. In three of the four cases, there had been a plea of guilty. The information available in relation to those cases did not indicate whether the consumption of alcohol was a factor.

27 In The People (Director of Public Prosecutions) v. Sheedy [2000] 2 IR 184 this Court had been invited to set out...