DPP v Peter O'Dwyer
| Jurisdiction | Ireland |
| Judge | Denham J. |
| Judgment Date | 28 July 2005 |
| Neutral Citation | [2005] IECCA 94 |
| Court | Court of Criminal Appeal |
| Docket Number | [CCA No. 244 of 2004],No. 244 CCA/04 |
| Date | 28 July 2005 |
Between
and
[2005] IECCA 94
Denham J
Herbert J
Gilligan J
THE COURT OF CRIMINAL APPEAL
CRIMINAL LAW
Sentence Careless driving - Suspended custodial sentence - Whether sentence unduly harsh - Whether trial judge erred in taking into account fact of fatality - Whether failure to properly consider mitigating factors - Road Traffic Act 1961 (No 24), ss 52 and 53 - R v Simmonds [1999] RTR 257 and R v King [2001] EWCA Crim 709; [2001] 2 CrAppR (S) 503 considered. People (DPP) v Sheedy [2000] 2 IR 184 followed - Appeal allowed (244/2004 - Court of Criminal Appeal - 28/7/2005) [2005] IECCA 94; [2005] 3 IR 134 People (DPP) v O'Dwyer
The applicant was found not guilty of dangerous driving causing death but was convicted by a jury in the Circuit Court of the offence of careless driving and was sentenced to one month imprisonment, which was suspended for 18 months on bond and his licence was endorsed. The applicant's motor vehicle was examined following an accident in which a motorcyclist was killed and the Gardai discovered that the tyres on the applicant's vehicle were bald and below the legal limit. The applicant sought leave to appeal his sentence, the appeal being limited to the custodial sentence on the grounds that the learned trial judge erred in taking into account, when imposing sentence, the death of a member of the public who had been involved in a road traffic accident with the applicant in circumstances where the applicant had been convicted of careless driving only.
Held by the Court of Criminal Appeal (Denham, Herbert, Gilligan JJ) in allowing the appeal and imposing a fine of €1,000, with no disqualification and the conviction to be endorsed on the applicant's driving licence: That the offence in this case was at the lower end of the sentencing spectrum and was reduced further by mitigating factors. The fact that a death occurred may in itself be factor to be taken into account in sentencing but that would depend on the court's finding regarding the primary issue of the degree of carelessness and therefore of the culpability of the driving. In the present case it would be disproportionate to regard the tragic death as an aggravating factor in itself, in all the circumstances of the case.
Reporter: L.O'S.
ROAD TRAFFIC ACT 1961 S53(1)
ROAD TRAFFIC ACT 1961 S52(1)
ROAD TRAFFIC ACT 1961 S36(1)
DPP v O'BRIEN 1989 IR 266
R v KRAWEC 1984 6 CR APP R (S) 367
R v MACCAIG 1986 8 CR APP R (S)77
R v SIMMONDS 1999 RTR 257
ROAD TRAFFIC ACT 1998 S3 (UK)
ROAD TRAFFIC ACT 1991 S2 (UK)
R v KING 2001 EWCA CRIM 709
JOHN BRIAN MORLING 1998 1 CR APP R (S) 421
ROAD TRAFFIC ACT 2002 S23(1)(a)
ROAD TRAFFIC ACT 1988 S3A(1)
ROAD TRAFFIC ACT 1991 S3
ROAD TRAFFIC ACT 1988 SCHED 2
DPP v SHEEDY 2000 2 IR 184
ROAD TRAFFIC ACT 1961 S53(2)
28th day of July, 2005 by Denham J.
1. Peter O'Dwyer, the applicant, hereinafter referred to as the applicant, was convicted on the 8 th December, 2004, by the Clonmel Circuit (Criminal) Court for the offence of careless driving and sentenced to one months imprisonment, which was suspended for eighteen months on bond and his licence was endorsed.
2. The applicant seeks leave to appeal against sentence, his appeal being limited to the custodial sentence.
3. The grounds filed for the motion for leave to appeal were as follows. That the learned trial judge erred in:
(i) imposing a term of imprisonment of one month in respect of a first conviction for careless driving;
(ii) failing to give proper weight or to have due regard to the verdict of the jury which had acquitted the applicant on a charge of dangerous driving causing death;
(iii) taking into account the death of a member of the public who had been involved in an accident with the applicant in circumstances where the applicant had been convicted of careless driving only;
(iv) failing to have due regard or give sufficient weight to the fact that the applicant had no previous convictions and was a person of exemplary character;
(v) failing to have due regard to the remorse which the applicant himself felt over the accident and the consequences of same and the extent to which the applicant had suffered since the occurrence of the said accident;
(vi) failing generally to take a proper account of all the circumstances relating to the applicant and the circumstances surrounding the accident in which he had been involved.
4. The applicant was charged with dangerous driving causing death. The particulars of the offence, as set out in Count No. 1, were that the applicant did on the 16 th day of February, 2003, at New Line, Dungarvan Road, Carrick-on-Suir, in the County of Tipperary, a public place, drive a vehicle in a manner (including speed) which, having regard to all the circumstances of the case (including the condition of the vehicle, the nature, condition and use of such place and the amount of traffic which then actually was or might be expected to be therein), was dangerous to the public, thereby causing the death of another person, namely Austin Bentley.
5. On the 8 th December, 2004, the trial in this action came on before Clonmel Circuit (Criminal) Court, before a judge and jury.
6. The facts were that on Sunday the 16 th February, 2003, a group of motorcyclists, having been at a motorbike rally in Dungarvan the day before, were returning home to Mountmellick. They left Dungarvan at about midday and travelled in the direction of Carrick-on-Suir. It was a nice day and travel conditions appeared good. Mr. Dan Turner said that Mr. Austin Bentley was in front of him, driving down the road, when, approaching Carrick-on-Suir, a jeep came around the bend weaving. The jeep then crossed the road, hit the ditch and slid and hit Mr. Bentley's motorcycle. Mr. Bentley died at the scene from injuries received in the road traffic accident.
Garda Joe Robinson gave evidence of examining the applicant's jeep on the 17 th February, 2003. He said that the two rear tyres were bald and below the legal limit. He said that the tracking was out on the front wheels and the tyres were under the legal limit. However, there was three-quarters of a good grip remaining on the tyres, there was three millimetres of thread. He said that the tyres on the rear wheels should have been replaced and the tyres on the front should have been replaced and the tracking corrected. On cross-examination he said there was wearing on the inside of the front wheels and that this wearing of the inside of the front wheels would not be visible to a lay person. On the outer portion of the tyre, for three quarters of the tyre, the thread level was at three millimetres which is above the legal limit.
7. The jury found the applicant not guilty of dangerous driving but guilty of careless driving. The learned trial judge sentenced the applicant, after hearing further evidence. The learned trial judge accepted that the applicant was genuinely remorseful, but indicated that he was going to impose a custodial sentence which he proposed suspending. Counsel for the applicant submitted that such an approach was an error, and counsel urged the trial judge not to impose a disqualification either as the applicant had no previous convictions.
The learned trial judge then held as follows:
"Basically I am not against you in respect of disqualification, he needs it for his job. The maximum sentence for careless driving is three months and/or a fine. Then I must look at what range does this case lie. Well, it's within the lower range of that maximum penalty. In the personal circumstances and this is important in respect of what sentence I impose and in respect of disqualification that he [is] now aged 38 years and that he is a self-employed builder and he also keeps a few horses and he needs his driving licence to go from job to job or in respect of his horses and I will take that into account.
In mitigation, in respect of disqualification, ... I'll impose a one month custodial prison sentence which I will suspend on Mr. O'Dwyer entering into a bond of fifty euro and to be of good behaviour for a period of 18 months from today's date. I will not disqualify him from driving but it appears that the terms will have to be endorsed on his driving licence because that is mandatory."
8. The background to the sentence was that the applicant had been charged with an offence under s.53 (1) of the Road Traffic Act, 1961, as amended. This section states:
"A person shall not drive a vehicle in a public place in a manner (including speed) which, having regard to all the circumstances of the case (including the condition of the vehicle, the nature, condition and use of the place and the amount of traffic which then actually is or might reasonably be expected then to be therein) is dangerous to the public".
In his charge to the jury the learned trial judge stated that the meaning of dangerous driving was driving in a manner which a reasonable, prudent, motorist, having regard to all the circumstances, would clearly recognise as involving a direct and serious risk of harm to the public. He informed the jury that on the charge they had to be satisfied that the applicant drove the car dangerously and that the concept of dangerous driving is based on an objective test or an objective view of the facts. It is a test of what a prudent careful person would do.
The learned trial judge pointed out to the jury that if they were not satisfied beyond...
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