DPP v Sheedy

• Jurisdiction: Ireland
• Judge: Mrs. Justice Denham
• Judgment Date: 21 December 1999
• Neutral Citation: 1999 WJSC-CCA 2148
• Date: 21 December 1999
• Docket Number: No. 77/99,[C.C.A. No. 77 of 1999]
• Court: Court of Criminal Appeal

1999 WJSC-CCA 2148

COURT OF CRIMINAL APPEAL

Denham, J.

Geoghegan, J.

McGuinness,J.

No. 77/99

DPP v. SHEEDY

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

V.

PHILIP SHEEDY

APPLICANT

Citations:

ROAD TRAFFIC ACT 1961 S53(2)

ROAD TRAFFIC ACT 1968 S51

ROAD TRAFFIC ACT 1961 S49(7)

ROAD TRAFFIC ACT 1994 S10

DPP V M 1994 2 ILRM 541, 1994 1 IR 307

CRIMINAL JUSTICE ACT 1993 S2

DPP, PEOPLE V CAHILL 1980 IR 8

DPP, PEOPLE V AYLMER 1995 2 ILRM 624

DPP, PEOPLE V GALLAGHER UNREP CCA 4.3.1994 1998/4/1072

R V SPARTALIS 1979 2 NZLR 265

DPP V DODD UNREP CCA 19.4.1999

DPP, PEOPLE V MCDONALD UNREP CCA 29.7.1998 1998/16/5742

AG, PEOPLE V O'DRISCOLL 1972 1 FREWEN 351

DPP, PEOPLE V TIERNAN 1988 IR 250

ROAD TRAFFIC ACT 1994 S49(1)(f)

Synopsis

Criminal Law

Criminal law; appeal against sentence; applicant had pleaded guilty to the offences of dangerous driving causing death and driving a mechanically propelled vehicle in a public place while exceeding the lawful blood-alcohol quotient; applicant had been imprisoned for a period of 4 years on the former count, to be reviewed after 2 years; applicant was also disqualified from holding a driving licence for 12 years; it had been ordered that the applicant be disqualified from holding a driving licence for a period of 1 year in respect of the latter count; matter had come on for review and Circuit Court had ordered that balance of custodial sentence, approximately 3 years, be suspended, subject to certain conditions; D.P.P. had successfully sought a judicial review of this review order; applicant had then faced the balance of a 4 year sentence simpliciter; applicant seeks leave to appeal against sentence imposed; whether sentence unduly severe; s.53 (2), Road Traffic Act, 1961, as amended by s. 51, Road Traffic Act, 1968; s.49 (7), Road Traffic Act, 1961, as inserted by s. 10, the Road Traffic Act, 1994.

Held: Application for leave to appeal treated as the appeal; this was not an appropriate case to sentence on the review date formula of sentencing; orders of sentence on their face stated that applicant was to serve 4 years in prison; evidence established that intention of trial judge was for applicant to serve 24 months in custody, which in the circumstances of the case was equivalent to a 3 year prison sentence; accordingly, orders of sentence did not accurately reflect trial judge's intention and should not be upheld; intent of trial judge that applicant serve 24 months in custody upheld; sentence accordingly varied to one of three years" imprisonment.

People (D.P.P.) v. Sheedy - CCA: Denham J., Geoghegan J., McGuinness J.- 15/10/1999 - [2000] 2 IR 184

The applicant had been sentenced to a four year term of imprisonment arising out of a road traffic accident which had resulted in the death of a woman and had caused extensive injuries to others. The applicant received a sentence of four years to be reviewed in two years. The applicant was also disqualified from holding a driving licence for 12 years. Subsequently the review period was vacated, the balance of the sentence was suspended and the applicant was released from custody. As a result of a judicial review action taken by the DPP the applicant was detained once more on foot of the original court orders. On behalf of the applicant it was argued that the applicant was now serving a greater sentence than originally envisaged and that the sentence itself was unduly harsh. The court acceded to the application and stated that it was clear that the trial judge envisaged that the applicant would actually spend 24 months in custody. Taking into account the normal remission period the court would therefore order that the sentence be amended to one of 36 months. [subsequently amended by the court on 21 December 1999 to a sentence of 34 months and 10 days to accurately allow for a period of 24 months in custody].

1 Mrs. Justice Denham on the15th day of October,1999.

2 This is an application for leave to appeal by Philip Sheedy (hereafter referred to as "the Applicant") against a sentence of four years imprisonment on the grounds that, in all the circumstances of the case, the sentence imposed on 20th October, 1997 and varied on 6th November, 1997 was unduly severe. On 11th June, 1997 before Judge Kelly, the Applicant pleaded guilty to Counts No. 1 and No.3 of the indictment preferred against him. These counts stated:

"Statement of Offence

3 Count No. 1Dangerous driving causing death contrary to Section 53(2) as amended by Section 51 of the Road Traffic Act, 1968of the Road Traffic Act, 1961.

Particulars of offence

4 Philip Sheedy on the 15th (sic) day of March 1996 at Tallaght By-Pass in the City of Dublin drove a motor 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, the amount of traffic which then actually was or might reasonably be expected then to be therein) was dangerous to the public and thereby caused the death of one Anne Ryan.

5 ...

Statement of offence

6 Count No.3Driving a mechanically propelled vehicle in a public place while having in the body a concentration of alcohol exceeding 107 milligrams of alcohol per 100 millilitres of blood contrary to Section 49(7) of the Road Traffic Act 1961as inserted by Section 10 of the Road Traffic Act 1994.

Particulars of offence

7 Philip Sheedy on the 15th (sic) day of March 1996 at Tallaght Bye-Pass (sic) a public place, in the Country of the City of Dublin drive (sic) a mechanically propelled vehicle while there was present in his body a quantity of alcohol such that within 3 hours after so driving the concentration of alcohol in his urine exceeded a concentration of 107 milligrams of alcohol per 100 milliliters of urine."

8 The case arises out of the Applicant's driving on the 9th March, 1996. On that evening the Applicant was driving a Ford Probe, a relatively powerful car, which he had bought that week. At approximately 8.15 p.m. he was driving towards a roundabout at speed on the Tallaght By-Pass. He had consumed between three and a half and four prints of beer. He failed to stop at the roundabout, traversed it, flew into the air for a distance of about 70 feet. His car fell on top of a motor car being driven by the deceased, Mrs. Anne Ryan, whose husband, Mr. John Ryan, was in the passenger seat and wherein three children were in the back seat. Mrs. Ryan was killed instantly in the crash. The Applicant's car proceeded on and hit another car about 20 to 30 feet further on. There was evidence that the Applicant had been driving at speed for quite some time and also driving in a manner which caused other road users concern. On his arrest the Applicant was tested for alcohol consumption and his urine reading was 141. The limit is 107, thus, he was in the range which carries a mandatory disqualification of one year.

History of the Proceedings

9 On 11th June, 1997 on arraignment the Applicant pleaded guilty and a Probation Report was ordered for the purpose of sentencing. The matter was adjourned for sentence to the 20th October, 1997. On 20th October, 1997 Judge Matthews, having heard the evidence tendered and the submissions made on behalf of the respective parties, ordered the Applicant to be imprisoned for a period of 4 years on Court No. 1, to be reviewed on 20th October, 1999. The Court further ordered that the Applicant be disqualified from holding a driving licence for 12 years. It was ordered also that the Applicant be disqualified from holding a driving licence for a period of 1 year in respect of Count No. 3. Liberty was granted to Counsel for the Director of Public Prosecutions to enter a nolle prosequi in respect of Court No. 2. The matter came before Judge Matthews again on 6th November, 1997. In the absence of the Applicant, Senior Counsel on his behalf sought to vacate that part of the Order of the 20th October, 1997 which had set down the 20th October, 1999 as a review date. The Court ordered that the said review date be so vacated.

10 The matter came into the list on 12th November, 1998 before Judge Kelly, who ordered that the balance of the sentence, imposed on 20th October, 1997, be suspended on the Applicant's undertaking, on his own bond of £100, that he would keep the peace and be of good behaviour towards all the People of Ireland for a period of 3 years from 12th November, 1998 and further that he would come up, if called upon to do so, at any time within the said period to serve the sentence of the Court imposed on the 20th October, 1997. It was further ordered that the review date of 20th October, 1999 be vacated. The Applicant was released from custody on 12th November, 1998.

11 In February, 1999 the Director of Public Prosecutions sought a Judicial Review of the Order of 12th November, 1998. On 25th March, 1999 the Applicant, having been advised that the Order of 12th November, 1998 was made in excess of jurisdiction, withdrew his Statement of Opposition to the Judicial Review and presented himself at the gate of Mountjoy Prison whereupon he was detained on foot of the original Orders of Judge Matthews made on 20th October, 1997 and 6th November, 1997. The Order of 12th November, 1998 was quashed by Laffoy J.

12 On 19th April, 1999 the Applicant sought, in the Circuit Criminal Court before Judge Matthews, an extension of time in which to apply for a certificate of leave to appeal and, if that were granted, a certificate of leave to appeal against severity of sentence. The matter was mentioned on 20th April, 1999 and resumed on 26th April, 1999. On 26th April, 1999 Judge Matthews determined that:

"In my judgment in the particular circumstances of this particular case the justice of this case requires that the Applicant be permitted an Order allowing him an extension of time...