DPP v Shovelin

• Jurisdiction: Ireland
• Judge: Kearns J.
• Judgment Date: 27 April 2009
• Neutral Citation: [2009] IECCA 44
• Docket Number: [C.C.A. No. 234 of 2008]
• Court: Court of Criminal Appeal
• Date: 27 April 2009

DPP v Shovelin

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

OLIVER SHOVELIN

APPELLANT

[2009] IECCA 44

Kearns J.

Irvine J.

Edwards J.

[C.C.A. No. 234 of 2008]

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Sentence

Severity - Dangerous driving causing death and serious harm - Imprisonment - Disqualification - Previous convictions - Plea of not guilty - Full trial - Aggravating and mitigating circumstances - Grounds of appeal - Whether applicant punished for contesting case - Whether failure to give weight to mitigating factors - Absence of evidence of alcohol consumption - Injuries to applicant - Consistency in sentencing - Range of sentences for offence - Factors for consideration - Whether trial judge adopted excessively punitive approach - People (DPP) v Sheedy [2000] 2 IR 184 and People (DPP) v O'Reilly [2007] IECCA 118 (Unrep, CCA, 11/12/2007) considered - Road Traffic Act 1961 (No 24), s 53 - Sentence reduced; disqualification upheld (234/2008 - CCA - 27/4/2009) [2009] IECCA 44

People (DPP) v Shovelin

Facts: the appellant was sentenced to seven and a half years by Circuit Court in respect of his conviction for dangerous driving causing death contrary to section 53 of the Road Traffic Act 1961 and six years in respect of his conviction for dangerous driving causing serious harm, both sentences to run concurrently. In addition the appellant was disqualified from driving for life. The appellant appealed against the severity of the sentences imposed on the basis, inter alia, that the trial judge failed to take mitigating factors into account and unlawfully took into account that the appellant had filed to concede any matter during his trial.

Held by the Court of Criminal Appeal in substituting a sentence of five years imprisonment in respect of the first offence and four years in respect of the second offence and confirming the disqualification that as each case of dangerous driving causing death turned so uniquely on its own facts, it was an area of sentencing which did not lend itself to uniformity or consistency. The trial judge adopted an excessively punitive approach to the issue of sentence having regard to failure of the appellant to make any concessions at any point during his trial.

DPP v Sheedy [2000] 2 IR 184 considered.

Reporter: P.C.

ROAD TRAFFIC ACT 1961 S53

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1961 S13

DPP v SHEEDY 2000 2 IR 184 1999/9/2148

DPP v O'REILLY UNREP CCA 11.12.2007 2007/21/4355 2007 IECCA 118

Kearns J.

1 This is an appeal against the severity of a sentence imposed in the Dublin Circuit Court on 28^th July, 2008. The appellant was convicted following a trial of dangerous driving causing the death of John Sheridan at Cookstown, Ardee in the County of Louth on 11^th July, 2004. He was also convicted of dangerous driving causing serious harm to Deirdre O'Brien on the same date and at the same location. In respect of the offence of dangerous driving causing death contrary to s.53 of the Road Traffic Act, 1961 (as amended), the learned trial judge imposed a sentence of seven and a half years imprisonment. A sentence of six years imprisonment was imposed for the offence of dangerous driving causing serious harm. Both sentences were directed to run concurrently. In addition, the appellant was disqualified from driving for life. Leave to appeal to this Court was granted by the trial judge, His Honour Judge Hunt.

BACKGROUND

2 The appellant was born on 25^th February, 1976 and is a native of Rathmullen, County Donegal. He is a single man and grew up on the family farm in Rathmullen. At the time of the sentencing hearing he had twenty-seven previous convictions most of which related to road traffic offences, but two of which consisted of assaults on members of An Garda Siochana. At the time of this offence he had two drink driving prosecutions which were pending and in respect of which convictions were recorded on 14^th October, 2005. He also had a conviction for refusing to provide a sample of his breath on 15^th March, 2004 in respect of which a sentence of four months imprisonment was imposed but suspended on condition that the appellant would have no further convictions within five years under s. 49 or s. 13 of the Road Traffic Act 1961.

3 On the day prior to the accident, the appellant purchased the Ford Escort van which he was driving on the date of the offence. Without arranging insurance for the vehicle, the appellant decided to drive to Dublin in the van on the morning of 11^th July, 2004 for the purpose of attending a football match in Croke Park. Having commenced his journey, the appellant stopped to pick up John Sheridan who was a young man aged nineteen years from Rathmullen and who was hitch-hiking a lift to Dublin on the date in question. A number of witnesses who gave evidence at trial that over a period of some thirty or forty minutes before the accident occurred, the appellant's van was seen to be driven at very high speed and in an erratic manner along the route that would take persons from Donegal to the crash scene. At times the appellant was on the wrong side of the road to such a degree that he was driving on the hard shoulder on the incorrect side of the roadway. One witness observed that the appellant appeared to be asleep or falling asleep because he had his eyes closed at the wheel of the car. At a certain point a vehicle driven by Ms. Deirdre O'Brien came in the opposite direction and a collision between the two vehicles occurred as a result of which Mr. Sheridan suffered fatal injuries, Ms. O'Brien suffered severe injuries of a permanent nature and the appellant himself suffered multiple injuries, including a significant head injury which left him with no recollection or memory whatsoever of the event in question.

4 The extent of the injuries suffered by the appellant were such as to render it impossible for the Garda Siochana to interview the appellant, nor was it possible having regard to his condition to test for the possibility of alcohol consumption. However, in this respect it should be noted that in the aftermath of the collision an independent witness who suspected that the consumption of alcohol had played a part in the collision sniffed around inside the van containing the deceased and the appellant but could smell no trace of alcohol.

5 The appellant pleaded not guilty and there was a full trial in the Circuit Court where each and every element of the prosecution case was fully contested. In the course of imposing sentence, the learned trial judge noted that no "concessions" had been made in respect of any aspect of the trial and further noted that this was not the fault of counsel who was obliged to act in accordance with instructions received from the appellant. The learned trial judge noted further that the family of Mr. Sheridan had to listen to all of the details in relation to his injuries and in this regard concluded "so I really think that Mr. Shovelin has very very little going for him".

6 In identifying the aggravating and mitigating circumstances in the case, the learned trial judge noted the following:-

"There are a number of aggravating factors - the consistent pattern of dangerous driving, very high speed, consistent positioning on the incorrect side of the roadway. What is perhaps worse is Mr. Shovelin's attitude following upon his conviction and I want to refer to the probation report which has been commissioned in relation to the matter. He has what in my view is the gall to take issue with the actions of Ms. O'Brien who tried to avoid the inevitable accident by swerving to her outside rather than to the inside. He disputed with the Probation Officer that he was on the wrong side of the road but he went on to inform the Probation Officer that if that was the case the hard shoulder was available to the other car to avoid the collision. This is the flavour of Mr. Shovelin's stance in relation to his behaviour. He apparently was capable of making admissions to the Probation Officer in relation to speed in overtaking, but when the implications of the potential consequences of this factor were explored with him, he advised the Probation Officer that this fact did not make him responsible for what happened. This is an absolutely outrageous stance in my view. Mr. Shovelin sat through the trial, as we all did; and although I accept he has difficulties in recollecting the events of this morning, he strikes me that he could have had no difficulties in appreciating that the evidence that was given at his trial and the very clear nature indeed of the evidence in relation his behaviour on that morning. So his stance, in my view, is an aggravation of what is already a very serious offence. When he was asked to consider the fact that by his own admission his memory had been vague but that he had been found guilty by an independent jury, he remained steadfast in his belief that not only has he suffered long term physical injuries as a result of the incident, he is also being blamed for something that he did not do. Now, he does express remorse in relation to the death of Mr. Sheridan but he is singularly incapable of making a connection...