DPP v Phelim Cody
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 25 November 2021 |
| Neutral Citation | [2021] IECA 354 |
| Docket Number | 206CJA/20 |
| Year | 2021 |
| Court | Court of Appeal (Ireland) |
In the Matter of Section 2 of the Criminal Justice Act 1993
[2021] IECA 354
Edwards J.
Kennedy J.
Ní Raifeartaigh J.
206CJA/20
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the on the 25th day of November 2021 by Ms. Justice Isobel Kennedy.
This is an application brought by the Director of Public Prosecutions pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency of a sentence imposed on the respondent on the 7th October 2020 in Tipperary Circuit Criminal Court. The respondent pleaded guilty to offences under the Road Traffic Act 1961 (as amended), and the Road Traffic Act 2010 (as amended). The sentence sought to be reviewed is one of two and a half years' imprisonment fully suspended.
On the evening of 29th June 2019, the respondent, Phelim Cody, and the deceased, Stephen Gleeson, as well as six friends met in Garrykennedy. During the evening they moved to the home of Mr. Cody, also in Garrykennedy. In the early hours of the morning, at around 5:00am on the 30th June, Mr. Cody, Mr. Gleeson, and two friends decided to take out an old car that was being restored by the respondent. The car in question was in defective condition, with underinflated tires, no back seats, and no rear seatbelts. It was also uninsured and had no NCT. The car could not move out of low gear and it was stated that it was traveling at no faster than 30–35kph. The route taken was an almost three mile loop on rural roads from Garrykennedy to nearby Portroe and back. While approaching Garrykennedy, the car hit the left-hand side of the road, crossed over, hit the right-hand side of the road and overturned. Mr. Gleeson was thrown from the car and died; the other occupants of the car were essentially unharmed.
The respondent made immediate admissions to the attending Gardaí that he was the driver, stating that he had killed his best friend. He was attempting self-harm so the attending garda handcuffed him. He was subsequently brought for alcohol and drug testing, following which he was admitted as an in-patient to psychiatric services in Ennis. He was found to have a blood alcohol reading of 188/100mg and it was further found that he had consumed cannabis. The sentencing court heard that the crash occurred from a combination of driver error and the defective nature of the car; the severity of the injury caused was as a result of the lack of rear seats and seatbelt.
A large amount of evidence was adduced by the defence as to the character of the respondent, including evidence from the father of the deceased bearing no ill will to the respondent, and referring to a supportive relationship between the Gleeson family and Mr. Cody. Character evidence from his employers, educators, and friends was supported by the fact that the respondent has no previous convictions, and had not previously come to Garda attention. Medical evidence indicated that the respondent had been diagnosed with post-traumatic stress disorder, generalised anxiety and depression as a result of the extreme remorse he has felt since the events, and the report of Professor Henry O'Connell opined that a prison sentence would be very damaging to his mental health.
The sentencing judge noted that the respondent pleaded guilty to four offences, the most serious of which being dangerous driving causing death contrary to s. 53(1) of the Road Traffic Act 1961 as substituted by s. 4 of the Road Traffic Act (No.2) Act 2011, which carries a maximum sentence of ten years' imprisonment.
The sentencing judge considered the aggravating factors to be the condition of the vehicle, and the driver error caused by consumption of alcohol and cannabis, placing the offence at the upper end of the lower scale. The mitigating factors, the judge considered, were the cooperative nature of the respondent and his immediate admissions, as well as his lack of previous convictions and the unlikelihood of his reoffending. His good character was considered in mitigation, and, as a result, the sentencing judge imposed the two and a half year sentence fully suspended, along with his disqualification from driving for four years. The suspension is on the condition that he be of good behaviour and remain drug-free.
The appellant submits that the sentencing judge failed to set out a headline or pre-mitigation sentence. It is said that the sentence of two and a half years was insufficient even before one considers its suspension, and the aggravating factors were not sufficiently considered. It is submitted that the headline sentence should be above the middle point of the scale due to the aggravating factors, and that the weighing of the aggravating and mitigating factors was not proportionate. It is further said that the sentencing judge did not consider the need to provide deterrence given the seriousness of the offences and the fatality.
The appellant refers to the case law of this Court, including inter alia DPP v. Nestor [2018] IECA 255, and DPP v. Declan Moran [2019] IECA 5. In Nestor, it is said that although the facts are not “on all fours” with the instant case, the aggravating factors in that case led to a sentence of four years with two suspended, indicating that the respondent's sentence is insufficient. Further, in Moran, the submissions note that Edwards J. considered that the offence of dangerous driving causing death in that case, when not considering previous convictions, should be in the upper half of mid-range. The Director submits that the same headline should be applied in the instant case.
Finally, the appellant submits that, as in DPP v. Byrne [2017] IECA 97, the Court should consider the suspension of the entirety of the sentence based on the nature of the offence, the objective seriousness of it, the need for deterrence, and the subjective circumstances of the offender. It is submitted that the aggravating factors in the instant case warrant that the sentence should not be fully suspended.
The respondent's submissions focus on the distinguishing features of the cases cited by the appellant, as well as the mitigation relevant to Mr. Cody's case. In Nestor, it is said that the blood alcohol reading of the accused was far higher than in the instant case, a pedestrian was killed, and there were injuries to two Gardaí. Similarly, in Moran, the accused hit a motorcyclist while executing an illegal turn on a main road, and left the scene without assisting the deceased. The respondent considers the case of DPP v. Flynn [2020] IECA 294, in which Moran and Nestor were considered. It is said that in that case, certain ostensible “outliers” are cited as only requiring sentences of two to four years, including DPP v. Ryan [2017] IECA 31. In that case, three years was considered an appropriate headline sentence, in which the intoxicated accused caused grave injuries to a pedestrian while driving with no lights and only a provisional licence, following which he left the scene without assisting. It is said that, although it was questioned whether a fully suspended sentence was unduly lenient in Ryan, this Court decided not to give the accused a custodial sentence.
The respondent submits that Moran is not a useful comparator in relation to setting a headline sentence due to the facts of that case. It is argued that the “freak” element to the fatality in the instant case, the short, rural, and slow nature of the trip, and all four boys' awareness of the condition of the car and the driver, distinguish the respondent's case.
The relevant mitigating factors are reiterated, in that they are “exceptional” and that they go far enough to render the sentence fully suspended. Pertinently for the purposes of this appeal, the respondent notes that Mr. Cody has, for example, taken on a managerial role at the local café, continued to work with his online clothing company (while giving a percentage of its profits to charity) and remained drug-free. It is said that the long wait for the appeal has affected his mental health. It is said that, due to Ryan, beyond deterrence, it would not serve the public interest to give Mr. Cody a custodial sentence.
The jurisprudence relating to undue leniency appeals is well settled at this point. This Court will not intervene in the sentence imposed unless it is satisfied that the sentence constituted a substantial departure from the appropriate sentence.
This is a tragic case for all involved. The conduct of the respondent in the early hours of the 30th June 2019 was highly reckless and the consequences were devastating. The aggravating factors are many and obvious; the analysis of the respondent's blood revealed a blood alcohol level of 188 mgs alcohol per 100mls of blood, where the limit for a person with a learner permit is that of 20mgs, the sample also revealed the presence of cannabis, the vehicle was not in a serviceable pre-collision condition; the tyres were underinflated which impacted on the stability of the vehicle, the inner thread of one tyre was under the legal limit, the vehicle had no rear seats and had been modified to carry two occupants. The collision came about due to driver error and defects in the vehicle, with the fatal injuries to Stephen Gleeson resulting from the absence of seating and consequently the absence of restraints causing him to be ejected through the rear window. The impact on the family of the deceased is of course immense and we will return to the impact statement shortly.
The mitigating factors are also many: immediate admissions, enormous distress on the part of the respondent, he has no previous convictions, a plea of guilty was entered, genuine and...
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DPP v Michael Welby
...rather than for a moment in time and that this sequence of event demonstrates his culpability. 19 . 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 culpabil......