DPP v O'Rourke

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 24 October 2016
• Neutral Citation: [2016] IECA 299
• Docket Number: Record No.: 276/2015
• Court: Court of Appeal (Ireland)
• Date: 24 October 2016

[2016] IECA 299

THE COURT OF APPEAL

Mahon J.

Birmingham J.

Sheehan J.

Mahon J.

Record No.: 276/2015

Between/

The Director of Public Prosecutions

Respondent

- and –

Finbar O'Rourke

Appellant

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

Facts: The appellant, Mr O'Rourke, pleaded guilty and was convicted on 5th May 2015 at the Circuit Criminal Court sitting in Portlaoise, Co. Laois, of one count of dangerous driving causing death or serious bodily harm, contrary to s. 53(1) and s. 53(2) of the Road Traffic Act 1961. On 3rd November 2015 the appellant was sentenced to a term of imprisonment of seven years and six months, to date from 27th October 2015. He was also disqualified from holding a driving licence for a period of twenty years from 3rd November 2015. The appellant appealed to the Court of Appeal against severity of sentence, submitting that: (i) having regard to comparative cases the reduction of one year from the maximum sentence of ten years arriving at a notional sentence of nine years before applying mitigation amounted to an error of principle; (ii) taking the mitigating factors as a whole insufficient weight was attached to them which reduced the amount of credit the appellant should have received; (iii) the failure to co-operate (generally) or as described by the sentencing judge in the index case was not an aggravating factor per se, it merely denied the appellant the credit he would have got from a sentencing judge had he co-operated and/or provided material assistance; (iv) the sentencing judge erred when he expressly referred to the actions of the accused after the accident as an aggravating factor when a more benign reference should have been made, if at all; (v) and (vi) the emphasis, attention and weight placed on the Victim Impact Statement sentencing judgment was disproportionate and objectively unfair to the accused.

Held by Mahon J that, having considered DPP v Shovelin [2009] IECCA 44, he was satisfied that there was an error of principle on the part of the sentencing judge in placing the headline sentence at nine years (having a regard to the fact that the maximum sentence for this offence is ten years) primarily because of the absence of evidence of a prolonged period of dangerous driving or significantly excessive speed. In those circumstances Mahon J held it necessary for the Court to re-sentence the appellant.

Mahon J held that the Court would impose a sentence of eight years, with the final two years suspended for a period of five years on his entering into a bond to keep the peace and be of good behaviour. Mahon J held that this period of suspension was primarily intended as a recognition of the appellant’s genuine remorse, his plea of guilty and to incentivise rehabilitation. The Court also re-imposed the disqualification for a period of twenty years.

Appeal allowed.

Judgment of the Court delivered by Mr. Justice Mahon on the 24th October 2016

1 The appellant pleaded guilty and was convicted on 5th May 2015 at the Circuit Criminal Court sitting in Portlaoise, Co. Laois, of one count of dangerous driving causing death or serious bodily harm, contrary to s. 53(1) and s. 53(2) of the Road Traffic Act 1961 as substituted by s. 4 of the Road Traffic (No. 2) Act 2011. On 3rd November 2015 the appellant was sentenced to a term of imprisonment of seven years and six months, to date from 27th October 2015. He was also disqualified from holding a driving licence for a period of twenty years from 3rd November 2015.

2 A second offence, that of driving a mechanically propelled vehicle while exceeding alcohol limits contrary to s. 4(3) of the Road Traffic Act 2010, was taken into consideration.

3 This is an appeal against severity of sentence.

4 On the afternoon of 17th April 2914, Mrs. Gillian Tracey was driving her car on the R419 road between Portlaoise and her home in Portarlington in Co. Laois. At Ballymaurice, Portarlington, she was confronted with a Toyota Avensis crossing the road and colliding head on with her vehicle. That car was being driven by the appellant. Mrs. Treacy sustained very serious personal injuries, and her young son, Ciaran, aged four years, was also seriously injured and in spite of the best efforts of the emergency services, he died that evening at Portlaoise Hospital. Her seven year old son, Sean, thankfully escaped physically unscathed.

5 Forensic evidence suggested that there was no evidence of braking on the part of the appellant's vehicle and that it was being driven at approximately eighty six kilometres per hour in an area in which there was a speed limit of eighty kilometres per hour. Mrs. Treacy recalled observing the appellant shortly before impact, slouched over his steering wheel. Both vehicles were extensively damaged. Immediately following the collision, Mrs. Treacy recalls the appellant approaching her vehicle. However, he then left the scene and walked away in the direction of Portarlington. He was later met on the road by gardaí in a distressed state and was arrested. The appellant told the gardaí that he had consumed just two glasses of wine earlier in the afternoon. When his blood alcohol was tested he was found to have 200mg of alcohol to 100ml of urine. On being informed at the garda station that the young boy, Ciaran Treacy, had died from injuries sustained in the accident, the appellant smashed his head through a glass window in the garda station.

6 Further investigation by the gardaí suggested that the appellant had, prior to the accident, been drinking with a Mr. Smith. According to Mr. Smith, the appellant had consumed between eight and ten pints of cider over a few hours on that afternoon. Mr. Smith also informed the gardaí that while the appellant was walking away from the scene of the collision in the direction of Portarlington, he telephoned Mr. Smith a number of times, in the course of which he told him of the accident and that he believed someone had died. He also asked Mr. Smith to come and collect him.

7 The appellant's grounds of appeal are as follows:-

(i) By categorising the index case as one which ‘in my view this is a particular bad case, taking into account the aggravating factors, and that it is close to the top of the upper end of the offending scale, if not at the top’ and by expressly referring to the statutory maximum sentence of ten years where the learned judge stated ‘as I have already indicated the maximum sentence that can be imposed in this country for a charge of dangerous driving causing bodily harm or death is ten years. In structuring sentence, I am constrained by this and also constrained by the Appeal Courts…’ it could be inferred that the learned sentencing judge calculated the sentence at a maximum before reducing the sentence to nine years before applying mitigation. It is submitted that having regard to comparative cases the reduction of one year from the maximum sentence of ten years arriving at a notional sentence of nine years before applying mitigation amounts to an error of principle.

(ii) While it is accepted that the learned sentencing judge did expressly acknowledge the majority of the mitigating factors; it is submitted that taking the mitigating factors as a whole insufficient weight was attached to them which reduced the amount of credit the appellant should have received.

It is further submitted that the credit that should have been afforded to the appellant was diminished when the learned sentencing judge counter balanced and / or qualified the appellant's plea of guilty in a manner that was objectively unfair to the appellant when he stated:-

‘Given the overwhelming evidence which the State had against the accused, it has to be said that the credit for the plea in this instance is not as substantial as it would be in a case where the State might have difficulty in mounting a successful prosecution.’

It is submitted that the appellant should have been given the maximum credit for his guilty plea, and this should have been given without qualification. The plea of guilty was indicated and followed through at the earliest possible opportunity as illustrated by the timeline below and which saved the bereaved family the obvious trauma of a criminal trial.

(iii) It is submitted that the failure to co-operate (generally) or as described by the learned sentencing judge in the index case is not an aggravating factor per se, it merely denies the appellant the credit he / she would have got from a sentencing judge had he / she co-operated and / or provided material assistance. It is submitted that the learned judge's decision to use this language was unfair and amounts to an error of principle.

With regard to the co-operation of the appellant, it is an undisputed fact that he engaged in conversation with Gda. Nevin at the scene of the accidence and gave an account of his movements prior to the accident occurring.

Furthermore, the appellant made admissions under caution to Gda. Karen Nevin at the scene of the accident, whilst he was intoxicated and never resiled from the admissions at any stage. It was some six weeks later that the appellant was arrested and detained for questioning - and therein he invoked his constitutional right to silence, having received legal advice to do so. It is submitted that in accordance with the principles of DPP v. Joseph Finnerty [1999] IESC 130 there...