DPP v Stronge

• Jurisdiction: Ireland
• Judgment Date: 23 May 2011
• Neutral Citation: [2011] IECCA 79
• Date: 23 May 2011
• Court: Court of Criminal Appeal

DPP v Stronge

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT

AND

IN THE MATTER OF THE PEOPLE OF IRELAND (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/APPELLANT

AND

DERRICK STRONGE

ACCUSED/RESPONDENT

[2011] IECCA 79

MCKECHNIE J.

BUDD J.

MORIARTY J.

[282 CJA OF 2010]

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Sentence

Undue leniency - Dangerous driving causing death - Two year sentence; one year suspended - 10 year disqualification from driving -Distinction between homicide and dangerous driving causing death - Whether trial court and appeal court entitled to consider victim impact statement - Absence of aggravating features - Whether departure from normal sentencing - People (Attorney General) v O'Driscoll [1972] 1 Frewen 351 and People (DPP) v McCormack [2000] 4 IR 356 followed - People (DPP) v Sheedy [2000] 2 R 184 People (DPP) v McCormack (Unrep, CCA, 27/4/2006), People (DPP) v O'Reilly [2007] IECCA 118, [2008] 3 IR 632, and People (DPP) v O'Leary [2011] IECCA 27 (Unrep, CCA, 21/2/2011) considered - Application to increase sentence refused (79/2011 - CCA - 23/5/2011) [2011] IECCA 79

People (DPP) v Stronge

Facts The respondent who was charged with two offences pleaded guilty to dangerous driving causing death. A nolle prosequi was entered in respect of the second charge, namely drunken driving. The respondent was sentenced to two years imprisonment with the final twelve months suspended on certain conditions. The respondent was also disqualified from holding a driving licence for a period of ten years. The applicant applied herein under section 2 of the Criminal Justice Act, 1993 for a review of that sentence on the grounds that it was unduly lenient. The deceased who was a back seat passenger in a vehicle being driven by the respondent died following an accident. The respondent alleged that, immediately prior to the accident he encountered an animal on the road, which caused him to swerve, which in turn led to the accident. The Gardai were satisfied that the vehicle was in fair condition and it was not suggested that excessive speed was in and of itself a factor in the accident. The respondent had just turned eighteen at the date of the accident and was a friend of the deceased, who was sixteen years of age at the time. Their families were friends also. The respondent was charged with drunken driving approximately two weeks prior to the abovementioned accident. The sentencing judge considered a victim impact statement. The learned sentencing judge highlighted as mitigating factors the respondent's plea of guilty, his co-operation with the Gardai, his apology offered through counsel, his age, the presence of post-traumatic stress and the difficulties he encountered since the accident.

Held by the C.C.A.; McKechnie J. (Budd, Moriarty JJ) in dismissing the application: That the learned sentencing judge was entitled to have regard to the explanation proffered by the respondent and to consider that it was 'possible' that an animal ran out on the road. The learned sentencing judge took all relevant matters into account, disregarded all irrelevant matters and having had regard to the appropriate principles (including that of deterrence), arrived at a sentence, which was not amenable to a successful section 2 review.

Reporter: L.O'S.

CRIMINAL JUSTICE ACT 1993 S2

ROAD TRAFFIC ACT 1961 S53(1)

ROAD TRAFFIC ACT 1968 S51

ROAD TRAFFIC ACT 1961 S53(2)(A)

ROAD TRAFFIC ACT 1994 S49(1)(F)

ROAD TRAFFIC ACT 2006 S18

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49 S6(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2010 S4

MISUSE OF DRUGS ACT 1977 S3

ROAD TRAFFIC ACT 1961 S49(3)

CRIMINAL JUSTICE ACT 1993 S5(1)

CRIMINAL PROCEDURE ACT 2010 S4

CRIMINAL PROCEDURE ACT 2010 S5

CRIMINAL PROCEDURE ACT 2010 S6

ROAD TRAFFIC ACT 1961 S53

CRIMINAL JUSTICE ACT 1993 S49

DPP v O'REILLY 2008 3 IR 632

DPP v MCCORMACK UNREP CCA 27.4.2006 2007/20/4074 2006 IECCA 60

CRIMINAL JUSTICE ACT 2006 S23

A G, PEOPLE v O'DRISCOLL 1972 1 FREWEN 351

DPP v MCCORMACK 2000 4 IR 356

DPP v BYRNE 1995 I ILRM 279

DPP v REDMOND 2001 3 IR 390

AG v DUNLEAVY 1948 IR 95

ANDREWS v DPP 1937 AC 576

DPP v SHEEDY 2000 2 IR 184

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1961 S56

DPP v O'LEARY UNREP CCA 21.2.2011 (EXTEMPORE)

ROAD TRAFFIC ACT 1961 S26

DPP v M 1994 3 IR 306

MCILHAGGA, IN RE UNREP SUPREME 29.7.1971

OSBOROUGH A DAMOCLES SWORD GUARANTEED IRISH SUSPENDED SENTENCE IN REPUBLIC OF IRELAND 1982 17 IR JUR 221

1 1. This is an application, moved by counsel for the Director of Public Prosecutions ("D.P.P.") under s. 2 of the Criminal Justice Act 1993, ("the 1993 Act"), whereby the sentence imposed by the learned trial judge is sought to be reviewed on the grounds that in the circumstances presenting, the same was unduly lenient. The background events giving rise to this application are as follows.

2 2. Mr. Stronge was charged with two offences as appear on the indictment. Count no. 1 was a charge of dangerous driving causing death contrary to s. 53(1), (as amended by s. 51 of the Road Traffic Act 1968 ) and subs. (2)(a) (as amended by s. 49(1)(f) of the Road Traffic Act "1994 and by s. 18 of the Road Traffic Act 2006) of the Road Traffic Act "1961 (The "1961 Act"). Count no.2 was a charge that on the same occasion he drove a mechanically propelled vehicle whilst under the influence of intoxicating liquor contrary to s. 49(2) and (6)(a) of the Road Traffic Act 1961, as inserted by s. 10 of the Road Traffic Act "1994 (as amended by s. 18 of the Road Traffic Act 2006). On the 28 ^th January, 2010, the respondent pleaded guilty to count no. 1: on that basis the D.P.P. entered a nolle prosecui in respect of count no. 2. The sentencing hearing took place on the 4 ^th November, 2010, after which the learned trial judge, her Honour Judge Buttimer imposed a sentence of two years on count no. 1, suspending the final twelve months of such sentence. She ordered that Mr. Stronge enter into a bond for the suspended period on certain conditions. She directed that he should be disqualified from holding a driving licence for a period of ten years. It is from such sentence that the D.P.P. seeks a review in the within application.

3 3. The particular facts giving rise to these charges can be stated thus. At about 5.30am on the morning of the 2 ^nd March, 2009, the gardaí were alerted to a single car accident which had occurred at Grangecuffe, Cuffesgrange in Kilkenny. On arrival it was noted that there were three occupants in the car: Mr. Stronge who later admitted to being the driver, Mr. Ryan Fulton who was a front seat passenger and Mr. Patrick McDonagh who was the back seat passenger. As a result of the injuries sustained by him, Mr. McDonagh was pronounced dead at the scene of the accident.

4 4. By reason of the gardaí's subsequent investigation, including an interview with Mr. Stronge after his arrest on the 8 ^th July, 2009, the following evidence was given by Sergeant O'Meara to the trial judge on the said 4 ^th November, 2010. On the evening prior to this accident both Mr. Stronge and Mr. Fulton had been out drinking. At some point in the night they rang Patrick McDonagh, a friend of the respondent who, unbeknownst to his older brother who was in charge of him, sneaked out of the house and joined up with them. They drove around Kilkenny city for some time and eventually met other cars in the car park of Woodies. In convoy form, they proceeded out the Callan Road. After travelling some distance Mr. Stronge, for reasons evidentially not explained, decided to return and did so in the direction of Kilkenny. Whilst on a straight stretch of road, which had clear markings and signs, and with good weather conditions prevailing, the car which he was driving went out of control. It travelled over onto the opposite side of the road and along a grass margin: it collided rear end with a tree and continued broadside along a boundary concrete wall of a house eventually coming to a stop on the opposite side of the road, by which stage it was semi broadside. Mr. Stronge alleged that, immediately prior to the accident he encountered an animal, either a fox or a rabbit, on the road which caused him to swerve, which in turn led to the accident resulting in the tragic circumstances above outlined. As Mr. Fulton had little or no recollection of the accident the source of this last piece of information was Mr. Stronge himself: the gardaí could neither substantiate nor disprove this assertion.

5 5. Following a technical examination of the motor vehicle the gardaí were satisfied that it was in fair condition and that there was no evidence of a mechanical failure. Moreover, it was not suggested that excessive speed was in and of itself a factor in the accident. The conclusion of the investigating team was that the same was caused by driver error.

6 6. An analysis of the driver's blood alcohol level showed a reading of 99mgs of alcohol per 100mls of blood: the legal limit is 80mg/100mls. It will be 50mgs/100mls when s. 4 of the Road Traffic Act 2010 is commenced.

7 7. The respondent, who was born on the 12 ^th December, 1990, and who had just turned eighteen at the date of the accident, was a friend of Patrick McDonagh with both families living relatively close to each other. He had what was described as a difficult upbringing, leaving school early. He started drinking and taking drugs also early in life. He offered an apology to the victim's family through his counsel at the sentencing hearing but not before. It was said that he would have to live with the responsibility for and the consequences of this accident for life. He also suffered from a psychiatric and psychological disorder. Post-traumatic stress symptoms were identified. A custodial sentence, it was...