DPP v O’Connell

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 22 July 2020
• Neutral Citation: [2020] IECA 237
• Docket Number: Record No: 259/2019
• Court: Court of Appeal (Ireland)
• Date: 22 July 2020

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

RESPONDENT

V

GARY O'CONNELL

APPELLANT

[2020] IECA 237

Edwards J.

McCarthy J.

Donnelly J.

Record No: 259/2019

THE COURT OF APPEAL

Sentencing – Endangerment – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr O’Connell, on the 31st of May 2019, was arraigned in relation to count 1 on the indictment, namely one count of endangerment contrary to s. 13 of the Non-Fatal Offences Against the Person Act, 1997. On the 29th of July 2019, further pleas of guilt were entered in relation to certain summary counts added to the indictment, being counts 4, 6, 7 and 14, which consisted of a count of driving without insurance, a count refusing to provide a specimen, a count of dangerous driving and a count of obstruction, respectively. Those pleas were offered and accepted on the understanding that a number of further summary counts would be taken into consideration, involving possession of a controlled drug contrary to s. 3 of the Misuse of Drugs Act 1977, failure to stop his vehicle at the direction of a member of An Garda Siochana, and multiple further counts of dangerous driving. These were counts 2, 3, 5, 8, 9, 10, 11, 12 and 13. The court heard evidence on the 29th of July, 2019. On the 21st of October, 2019, the appellant received a sentence of six years’ imprisonment with the final 18 months conditionally suspended in respect of the count of endangerment. In respect of counts 4 and 7, the appellant was sentenced to imprisonment for six months and was disqualified from holding a driving license for a period of 16 years. In respect of count 6 he was also sentenced to imprisonment for six months and was disqualified from holding a driving license for a period of 6 months. Count 14 was also taken into consideration. The appellant appealed to the Court of Appeal against the severity of the sentence imposed in respect of the count of endangerment on the following grounds: (i) the sentencing court failed to take into account the mitigating factors and placed too much emphasis on the aggravating factors in imposing sentence; (ii) in all the circumstances the sentence imposed was too severe having regard to the aggravating and mitigating factors and the personal circumstances of the appellant; (iii) the sentencing court erred in identifying a headline sentence of seven years for this offence and the resultant sentence imposed was excessive and disproportionate.

Held by the Court that, having considered comparators submitted by the appellant including The People (At the Suit of the D.P.P.) v Joseph McInerney [2016] IECA 378, The People (At the Suit of the D.P.P.) v Maxwell [2020] IECA 62, The People (At the Suit of the D.P.P.) v O'Driscoll [2017] IECA 91, The People (At the Suit of the D.P.P.) v Cash [2015] IECA 198 and The People (At the Suit of the D.P.P.) v McGillian [2018] IECA 62, a headline sentence of seven years imprisonment was out of kilter with the sentencing trend with respect to assessments of gravity. Having considered all the circumstances relevant to the gravity of the appellant’s offending conduct, and also factoring in an increase for the offences to be taken into consideration, the Court believed that an appropriate starting point to select as a headline sentence was 5 ½ years’ imprisonment. Having found an error of principle, it was necessary for the Court to quash the sentence imposed by the court below, and proceed to a re-sentencing of the appellant.

The Court held that, to reflect the mitigation to which the appellant was entitled, to further reward progress by him towards rehabilitation to date, and further to incentivise his continued rehabilitation, it imposed a sentence of 5 ½ years’ imprisonment on count 1 but suspended the final two years of that sentence to make allowance for those factors. The Court proposed attaching the same conditions to the partial suspension as were imposed by the sentencing judge in the court below and the sentence would further date from the same commencement date as was nominated by the court below. The Court held that the appellant could enter into his new bond before the governor of the prison in which he was serving his sentence and it granted liberty to apply in the event of difficulty in that regard.

Appeal allowed.

JUDGMENT of the Court (extempore) delivered on the 22nd day of July 2020 by Mr Justice Edwards

Introduction

1 On the 31st of May 2019, the appellant was arraigned in relation to count 1 on the indictment, namely one count of endangerment contrary to section 13 of the Non-Fatal Offences Against the Person Act, 1997, in respect of an incident which occurred on the 14th of December 2018. On the 29th of July 2019, further pleas of guilt were entered in relation to certain summary counts added to the indictment, being counts 4, 6, 7 and 14, which consisted of a count of driving without insurance, a count refusing to provide a specimen, a count of dangerous driving and a count of obstruction, respectively. These pleas were offered and accepted on the understanding that a number of further summary counts would be taken into consideration, involving possession of a controlled drug contrary to s.3 of the Misuse of Drugs Act 1977, failure to stop his vehicle at the direction of a member of An Garda Siochana, and multiple further counts of dangerous driving. These were counts 2, 3, 5, 8, 9, 10, 11, 12 and 13. The court heard evidence on the 29th of July, 2019.

2 On the 21st of October, 2019, the appellant received a sentence of six years’ imprisonment with the final 18 months conditionally suspended in respect of the count of endangerment. In respect of counts 4 and 7, the appellant was sentenced to imprisonment for six months and was disqualified from holding a driving license for a period of 16 years. In respect of count 6 he was also sentenced to imprisonment for six months and was disqualified from holding a driving license for a period of 6 months. Count no 14 was also taken into consideration.

3 The appellant now appeals against the severity of the sentence imposed in respect of the count of endangerment.

Background Facts

4 The court heard evidence from Garda Andrew O'Donnell that on the 14th of December, 2018, at approximately 12.05 a.m. whilst travelling on the N11 in Cherrywood, County Dublin inbound, he and his colleague Garda Darragh Hughes observed a blue Volvo 40 series saloon vehicle travelling at high speed on the dual carriageway and passing motorists in the overtaking lane. Garda O'Donnell noted that the car was breaching the speed limit of 80 kilometres per hour at which he was travelling, and it continued out of sight. Garda O'Donnell estimated the car to have been travelling at anywhere between 120 and 140 km/h due to the speed he had to reach to catch up. He activated the blue lights and sirens, prompting the vehicle in question to come to a stop on the N11 at Cabinteely. Garda O'Donnell and Garda Hughes approached the vehicle and observed three occupants, of which the appellant was the driver. As the gardaí came near to the driver's window, the vehicle took off at speed, skidding as it did so, and drove through a red light at the junction of the N11 and Johnstown Road in Dun Laoghaire. This was the subject of the dangerous driving charge at count 8 on the indictment. The two gardaí returned to their patrol vehicle and engaged the appellant in pursuit.

5 The vehicle driven by the appellant was at this stage travelling at speeds in excess of 160 km/h and was weaving between other vehicles as it approached the junction of the N11 and Clonkeen Road in Dun Laoghaire. This was the subject of the dangerous driving charge at count 9 on the indictment. At this point Garda Hughes informed the Garda Command Control of the situation. The appellant's vehicle then travelled through a red light at the junction, necessitating other motorists taking evasive action to avoid collision. This formed the basis of the dangerous driving charge at count number 7 on the indictment.

6 The vehicle further sped pasta red light at the junction of the N11 and Kill Lane. Once again, motorists in the vicinity had to take evasive action to avoid a collision. This was the subject of the dangerous driving charge at count number 10 on the indictment. A similar action was repeated at the junction of the N11 and Leopardstown, Foxrock, where the car continued travelling at speed and weaved between other cars. It proceeded onto the Kilmacud Road Lower, in Goatstown, where it yet again breached a red light and again forced motorists at that junction to take evasive action to avoid collision. This formed the basis of the dangerous driving charge at count 11 on the indictment.

7 The vehicle travelled along the old Dublin Road towards Donnybrook. Another garda patrol car joined in pursuing the appellant at this stage. The vehicle passed the junction of Fosters Avenue and Stillorgan Road, before turning left at Beaver Road onto Clonskeagh Road. Garda. The crew of the second garda car updated Command and Control to state that the vehicle was now heading towards Bird Avenue, Clonskeagh, and as Garda O'Donnell caught up in his patrol vehicle, he observed the second patrol vehicle pursuing the Volvo into Gledswood Park, a housing estate in Clonskeagh.

8 Garda O'Donnell drove onto the Dundrum Road and waited there, anticipating that the appellant's vehicle would return along Mulvey Park. Whilst stationary at this junction, facing the direction of Milltown in Clonskeagh on the Dundrum Road, another unmarked patrol vehicle pulled up and then Garda O'Donnell observed the Volvo travelling towards them at high speed from Bird Avenue. It was travelling at high speed in the middle of the road in contravention of a continuous white line, with its headlights off. This portion of the...