DPP v Moran

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 22 January 2019
• Neutral Citation: [2019] IECA 5
• Docket Number: Record No. CA 249/17
• Court: Court of Appeal (Ireland)
• Date: 22 January 2019

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V

DECLAN MORAN

APPELLANT

[2019] IECA 5

Record No. CA 249/17

THE COURT OF APPEAL

Sentencing – Dangerous driving causing death – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Moran, pleaded guilty before Castlebar Circuit Criminal Court on the 27th of June 2017 to three offences involving: (i) dangerous driving causing death, contrary to s. 53 of the Road Traffic Act 1961; (ii) leaving the scene of an accident, contrary to s. 106 (1)(a) and (3) of the 1961 Act; and (iii) failing to report an occurrence contrary to s. 106 (1)(d) and (3) of the 1961 Act. He was sentenced on the 25th of October 2017 to six years imprisonment on the count of dangerous driving causing death, to date from that date, with the final year of the said sentence suspended for a period of three years on standard conditions. He was also disqualified from driving for a period of ten years. The other two offences were taken into consideration. The appellant appealed to the Court of Appeal against the severity of the custodial sentence imposed upon him. He did not contest the duration of the driving disqualification. He complained that the sentencing judge over-assessed the gravity of the case and erred in nominating eight years as the appropriate headline sentence or starting point. He also complained that an inadequate discount was afforded to reflect the mitigating circumstances in the case.

Held by the Court that, having had regard to the intrinsic moral culpability associated with what the appellant did, the dreadful harm done in this case, the significant aggravation of the appellant’s culpability by virtue of his previous conviction for a relevant offence, and the fact that two other serious offences were to be taken into consideration, the headline sentence selected, albeit that it was severe, was not excessive; it was within the sentencing judge’s legitimate range of discretion to nominate the figure that he did, and it was not an error to do so. The Court held that the mitigating circumstances in the case were adequately, if perhaps not generously, reflected in the discount of two years or 25% from the headline sentence. The sentencing judge went on to suspend a further year of the remaining six-year sentence and gave as his rational for doing so that “[a]s a mixed deterrent to him and an incentive to rehabilitation, I will suspend the final year of the six-year sentence for a period of three years, post release”; the Court held that this was entirely appropriate in the circumstances of the case.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered 22nd January 2019 by Mr Justice Edwards .

Introduction

1 The appellant pleaded guilty before Castlebar Circuit Criminal Court on the 27th of June 2017 to three offences involving: (i) dangerous driving causing death, contrary to s.53 of the Road Traffic Act, 1961; (ii) leaving the scene of an accident, contrary to s.106 (1)(a) and (3) of the Road Traffic Act 1961, as amended; and (iii) failing to report an occurrence contrary to s.106 (1)(d) and (3) of the Road Traffic Act 1961, as amended.

2 He was sentenced by His Honour Judge McCabe on the 25th of October 2017 to six years imprisonment on the count of dangerous driving causing death, to date from that date, with the final year of the said sentence suspended for a period of three years on standard conditions. He was also disqualified from driving for a period of ten years. The other two offences were taken into consideration.

3 The appellant now appeals against the severity of the custodial sentence imposed upon him. He does not, however, contest the duration of the driving disqualification.

The Circumstances of the Offence

4 On the evening of Sunday the 8th of May 2016 the appellant, who resides at Carrentrila, Ballina, Co Mayo was driving a Ford Transit van, registration no 07 G 5396, and had been travelling along the N26 towards the town of Ballina when at Ballinahaglish, Ballina he pulled into the hard shoulder and parked in order to make a phone-call on his mobile phone. Having completed his phonecall the appellant then moved off again from where he had been parked and immediately swung to his right in an attempt to perform an illegal ‘U-turn’ on the roadway. In doing he turned across the path of a motorcycle, which was travelling along the N26 in the direction of Ballina, causing the motorcycle to collide with the right side of the van, in the vicinity of the van's ‘B’ pillar.

5 The van did not stop immediately but rather continued for some 18 metres from the point of impact before stopping on the hard shoulder on the far side of the road and facing Foxford. In circumstances where the van did not stop immediately the unfortunate motorcyclist became trapped under the rear axle of the van on the driver's side, and was dragged along the roadway while the van was being driven the said distance of 18 metres from the point of impact.

6 The motor-cyclist was Mr Martin (Morch) Wynne, who worked for the Road Safety Authority, and who resided in Crossmolina. Mr Wynne received devastating and fatal injuries in the accident.

7 The accident was witnessed by several people, all of whom went immediately to the aid of Mr Wynne who remained trapped and who was obviously in a bad way. The emergency services were contacted at 15:37:56 which was estimated to be within a minute of the collision having occurred, and Gardai, the Fire Service and a medical doctor were on the scene within a very short time, but unfortunately Mr Wynne could not be saved and was pronounced dead at the scene.

8 One of the witnesses to the accident saw the appellant get out of his van, walk around the back of it to where the motorcyclist was trapped and then walk away. Several of the witnesses recall the appellant sitting on the adjacent road barrier in the early aftermath of the accident, initially with his head in his hands, and then leaving the scene on foot heading in the direction of Carrentrila. The appellant was known to two of the witnesses. By the time the Gardai arrived the appellant had left the scene, but he was identified to the Gardai as having been the driver by the witnesses in question.

9 A major search was commenced in order to locate the appellant, involving Ballina District Gardaí and other Gardaí from the wider Mayo Garda division, as well as the helicopter of Garda Air Support Unit which was sent from Dublin. While the appellant was a person of interest to the Gardai in connection with their investigation into the accident, there was also concern for the appellant's welfare. Such was the level of concern that the local River Moy Search and Rescue Boat was launched, along with other civilian boats. After just over two hours the appellant was ultimately located by his father at his house at Carrentrila, Ballina and the search operation was stood down.

10 The appellant was arrested at his home at 18.15 on the evening of the 8th of May 2016 on suspicion of dangerous driving causing death. On being informed of his arrest, he responded ‘What can I say’. He was taken to Ballina Garda station where he provided a urine sample. This was provided at a time that was 3 hours and 14 minutes after the collision. When this sample was later analysed it showed a reading of 183 milligrammes of alcohol per 100 millilitres of urine. By way of a benchmark, s.4(3) of the Road Traffic Act 2010, which was the law in force on the date in question, provided that:

‘A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her urine will exceed a concentration of—

(a) 67 milligrammes of alcohol per 100 millilitres of urine.’

11 The urine analysis also involved a screening for controlled drugs and yielded a positive result for the presence of cocaine.

12 The interviewing of the appellant was postponed for two hours after his arrival at the Garda station on medical grounds, after he was seen by a doctor who recommended the two-hour postponement in circumstances where the appellant appeared to be suffering from shock.

13 The appellant was interviewed under caution and in the presence of a solicitor on six occasions while detained following his arrest. He was unco-operative in the first three interviews which took place on the evening of his arrest. However, in three subsequent interviews on the following day he made a number of admissions including his driving of the vehicle, his involvement in the collision, the fact that he had earlier been drinking in ‘Hughes's Pub’, and his fleeing from the scene. When the finding of a positive result on urine analysis indicating the presence of traces of cocaine was put to him, he admitted that he had taken cocaine a day and a half before the collision but maintained that he had not consumed cocaine on the day of the collision.

14 After the appellant was charged he pleaded guilty at the first available opportunity.

The impact on the victims

15 Mr. Wynne, who was aged 42 at the date of his death, was survived by his wife Marcella, his three-year-old daughter Autumn, his own father, and his two siblings, a brother and sister, respectively. Mrs Marcella Wynne read a powerful and poignant victim impact statement at the sentencing hearing to which we have had full regard. In addition to the immense personal tragedy for herself, for Autumn, and for the rest of Mr Wynne's family that she has so eloquently described, it is clear that she and her daughter have also suffered certain material losses as a result of the accident in as much as she was self-employed running a Beauty Salon at the time of...