DPP v Power

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 01 November 2016
• Neutral Citation: [2016] IECA 326
• Docket Number: 222/13
• Court: Court of Appeal (Ireland)
• Date: 01 November 2016

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Maurice Power

Appellant

[2016] IECA 326

222/13

THE COURT OF APPEAL

Sentencing – Dangerous driving causing serious bodily harm – Manifestly excessive sentence – Appellant seeking to appeal against sentence – Whether sentence was manifestly excessive

Facts: The appellant, Mr Power, pleaded guilty to dangerous driving causing serious bodily harm and was sentenced to seven years imprisonment with the final year of the said sentence suspended for a period of two years provided that he abstain from alcohol for two years following his release from prison and further that he keep the peace and be of good behaviour towards all the people of Ireland for the said period. The offence occurred on the 17th November, 2012 and the appellant was sentenced on the 31st July, 2013, at a sitting of the Circuit Criminal Court in Clonmel, Co. Tipperary. The appellant appealed to the Court of Appeal against his sentence on two grounds: 1) the trial judge placed the offence too high on the scale of available penalties; and 2) the trial judge gave insufficient weight to the mitigating factors in the case. The appellant relied on the case of DPP v Belov [2008] ICCA p. 24 as being an appropriate comparator and also relied on a number of recent decisions of the Court of Appeal including DPP v Casey [2015] IECA 199 and ICA 278 and DPP v Kelly [2015] IECA. The respondent, the DPP, relied in particular on a recent judgment of the Court of Appeal in DPP v Finbar O’Rourke CA 276/2015 delivered on the 24th October, 2016. While counsel conceded that that case was not on all fours with the present appeal he nevertheless pointed out that the appellant in the O’Rourke case had also consumed an excessive amount of alcohol.

Held by Sheehan J that the essential question that the Court needed to ask was whether or not the sentence was excessive. Sheehan J noted that in this case not only was the appellant disqualified at the time of the accident, but he was someone with significant previous convictions having a previous conviction for drink driving and having been previously disqualified from driving on more than one occasion. Sheehan J noted that while the Court of Criminal Appeal deemed the appropriate sentence in the Belov case to be in the two to four year range, Mr Belov was a young man with no previous convictions. The Court also noted that that judgment was delivered eight years prior. Sheehan J noted that the remark made by Mahon J stated in the course of delivering the Court’s judgment in the O’Rourke case (“There has been a progressive increase in sentences imposed in dangerous driving causing death cases over the past fifteen years or so”) is also applicable to cases of dangerous driving causing serious injury. Sheehan J held that, bearing in mind that the Court was bound to afford a margin of appreciation to a sentencing judge, he was satisfied that the judge in this case was entitled to identify a sentence of seven years imprisonment as the appropriate headline sentence, particularly having regard to the horrific injuries suffered as well other aggravating factors in the case, namely that the appellant was three times over the legal limit insofar as his consumption of alcohol was concerned and the fact that he was driving at a time when he was disqualified. Sheehan J held that the sentencing judge gave the appellant sufficient credit for the mitigating factors by suspending the final twelve months of the seven year sentence.

Sheehan J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 1st day of November 2016 by Mr. Justice Sheehan

1 The appellant pleaded guilty to dangerous driving causing serious bodily harm and was sentenced to seven years imprisonment with the final year of the said sentence suspended for a period of two years provided that he abstain from alcohol for two years following his release from prison and further that he keep the peace and be of good behaviour towards all the people of Ireland for the said period. The offence occurred on the 17th November, 2012 and the appellant was sentenced on the 31st July, 2013, at a sitting of the Circuit Criminal Court in Clonmel, Co. Tipperary.

2 The accident occurred at about 5.00 am in the morning when the appellant lost control of his car and collided with the injured party Mrs. O'Connell who happened to be walking home at the time. The injured party was then carried into the grounds of Northfield House, Clonmel, the appellant having driven through the boundary wall. The...