DPP v Michael Welby
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 13 February 2023 |
| Neutral Citation | [2023] IECA 29 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 152CJA/2022 |
In the Matter of Section 2 of the Criminal Justice Act 1993
[2023] IECA 29
Edwards J.
McCarthy J.
Kennedy J.
Record Number: 152CJA/2022
THE COURT OF APPEAL
JUDGMENT of the Court delivered ( ex tempore) on the 13 th day of February 2023 by Ms. Justice Kennedy.
. 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 of three years with the final eighteen months suspended imposed for one count of dangerous driving causing death, contrary to s. 53(1) of the Road Traffic Act, 1961, as substituted by s. 4 of the Road Traffic (No.2) Act, 2011.
. At approximately 4pm on the 29 th February 2020, the respondent collected Róisín Hession, the deceased, and a friend from their homes to drive them into Oughterard for a night out. The group socialised in two pubs in the town and returned to the friend's house where the respondent had left his vehicle at approximately 10/11pm.
. At approximately 1am, Ms Hession left the house with two of her friends in order to go home but subsequently asked if she could be dropped off at a Centra in order to avail of a lift home with the respondent instead.
. At 1:06am, the respondent's vehicle was captured on CCTV footage exiting the Centra car park. Shortly thereafter, the vehicle was observed by Garda Naughton driving at speed heading in the direction of Oughterard. The Garda made an attempt to stop the vehicle, activating the blue lights and siren but the vehicle failed to stop and turned off the N59 onto a minor road. The Garda noted that upon making this turn, the vehicle hit a bump with such force that he could hear the undercarriage of the car scraping off of the road. A friend of the deceased stated that around this time, Ms. Hession had sent a Snapchat message to her which read “we took chase.”
. The Garda lost sight of the vehicle but continued down minor roads in an attempt to locate it. He located the vehicle crashed at Porridgetown West, Oughterard. The respondent sustained serious injuries and when attending to him, the Garda realised there was a second person in the vehicle. Ms. Hession was a front seat passenger and received fatal injuries; whilst the Garda made attempts to resuscitate her at the scene which continued until the paramedics arrived, sadly, she was pronounced dead at the scene.
. The respondent was taken to University Hospital Galway. A blood sample was taken from him pursuant s. 14 of the Road Traffic Act, 2010 and he later gave his consent for same to be examined by the Medical Bureau of Road Safety of Ireland pursuant to s. 17 of the 2010 Act. This sample was obtained over two hours after the time of the collision. The results indicated a blood alcohol level of 125 milligrams of alcohol per 100 millilitres of blood.
. The scene of the collision was preserved and examined by a forensic collision investigator. The road was described as a country road with a small carriageway. There were no road markings either at the centre or at the road's edge, no hard shoulder or footpath and no street lighting at the location of the collision. The forensic collision investigator found that the respondent lost control of the vehicle as it went around a slight bend in the road and collided with a small clump of trees. The vehicle then continued with both nearside wheels in the hedgerow for nine metres before flipping over onto its roof and colliding with a wall. After impact, the car spun clockwise 220 degrees. The distance from the initial point of collision with the tree to impact with the wall was 40 metres. The weather conditions at the time of the collision were poor. There had been a status red warning the day before due to Storm Jorge.
. In terms of the condition of the vehicle, the PSB inspector indicated that the vehicle was in a dangerously defective condition prior to the collision. The rear offside tyre had a tread depth of 1.5 millimetres and was therefore defective and the rear nearside tyre was bald. The rear offside shock absorber was worn and had been leaking fluid prior to the collision. Further, the front windscreen was fitted with an inessential tinted sticker with a light transmission level transparency of 18%. According to the Road Traffic (National Car Test) Regulations 2017, glass in front windscreens require a light transmission level transparency of 65%.
. On the 18 th May 2020, the respondent was arrested by arrangement for the offence of dangerous driving causing death. He made admissions during his detention. He admitted to driving the vehicle involved in the collision, he admitted to having consumed alcohol and he accepted that his vehicle was in a dangerously defective condition. He was, however, reserved in his admissions around the quantity of alcohol consumed, the speed at which he drove and whether he knew the blue lights driving behind him were that of a garda vehicle. The respondent showed remorse and was upset during interview.
. The sentencing judge noted the aggravating factors in the case as the respondent's blood alcohol level, his decision to drive under the influence of alcohol, knowing that there were defects in his vehicle, his failure to comply with his legal duty to stop his vehicle when being called upon to do so by the Garda and the impact of the offending.
. In terms of mitigation, the judge considered the respondent's young age, that he was a first-time offender, that he entered a mid-early plea, that he was otherwise of good character and had a good work ethic, that he suffered serious injuries in the accident, his reaction post the accident, his expression of remorse and that he visited the scene of the accident with the father of the deceased girl.
. The judge nominated a headline sentence of five years' imprisonment. Taking into account the mitigating factors, he reduced this sentence to three years' imprisonment, then, after remarking that the respondent did not require specific deterrence, but that general deterrence was required in the case, the judge suspended the final eighteen months thereof, leading to an effective carceral sentence of eighteen months' imprisonment.
. The Director relies on the following grounds:-
“The learned sentencing Judge:-
1) Failed to fully appreciate the gravity of the offences as committed by the offender;
2) Departed in a significant way from the norm that would reasonably be expected in a case of this nature;
3) Failed to have sufficient regard to the deterrence aspect of the sentence;
4) Failed to have sufficient regard to the aggravating factors; and
5) Attached too much weight to the mitigating factors.”
. It is submitted that the sentencing judge failed to reflect the culpability of the respondent, the harm done by him, and the numerous aggravating factors present in his nomination of a headline sentence of five years. While acknowledging that each case must be decided on its own individual facts and noting this Court's clear position on the role of comparators, the applicant puts forward a number of comparator cases.
. In People (DPP) v Moran [2019] IECA 5 this Court noted a recalibration in how courts assess the gravity of dangerous driving causing death as an offence and emphasised that aggravating factors are to be considered in the assessment of gravity.
. It is acknowledged that Ms Hession was not originally intended to travel with the respondent, however, it is said there remained pre-meditation in the sense that he made a conscious decision to leave the public house, walk to his car and drive for some time before the resulting collision.
. Reliance is placed on People (DPP) v Flynn [2020] IECA 294 in which this Court considered an undue leniency application in relation to a sentence imposed for dangerous driving causing serious injury. It was noted that the respondent exceeded the lawful alcohol limit by four times and that on that account alone he was “very substantially morally culpable.” It is submitted that the same consideration applies herein.
. In terms of speed, the applicant refers to People (DPP) v Whelan [2020] IECA 350 and says that the primary cause of the collision in the present case was excessive speed, as underlined by the evidence that the undercarriage of the respondent's vehicle was damaged when travelling over a bump at excessive speed. It is submitted that the fact that the respondent was observed travelling at speed by the Garda shortly after exiting the Centra carpark indicated that his dangerous driving continued over a period of time rather than for a moment in time and that this sequence of event demonstrates his culpability.
. In contrast with People (DPP) v Cody [2021] IECA 354, it is said that the respondent herein made a series of decisions which lead to the fatal accident. This Court in Cody placed the culpability of the respondent in the mid-range and accordingly it is contended that the culpability of the respondent in the present case was far greater.
. In the Flynn case this Court set out the spectrum for dangerous driving causing death with a low range of zero custody to three years and four months, a mid-range up to six years and eight months and a high range up to a maximum of ten years. In that case, the respondent seriously injured two cyclists while driving under the influence of alcohol. This Court was of the view that a headline sentence of six years' imprisonment, as opposed to the headline of four years nominated by the sentencing judge, would represent the norm for offending of that gravity. It is said that the...
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