DPP v Sweeney

 
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[2014] IECA 5

THE COURT OF APPEAL

Finlay Geoghegan J.

Irvine J.

Hogan J.

[185/2013]
DPP v Sweeney
THE PEOPLE (at the suit of the DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
v.
JOHN SWEENEY
APPELLANT

185/2013 - Finlay Geoghegan Irvine Hogan - Court of Appeal - 15/12/2014 - 2014 17 4801 2014 IECA 5

ROAD TRAFFIC ACT 1961 S27(1)(A)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S18

CONROY v AG 1965 IR 411

ROAD TRAFFIC ACT S49

CONSTITUTION ART 38.2

ROAD TRAFFIC ACT 1961 S26

ROAD TRAFFIC ACT 1961 S27

CONSTITUTION ART 38.5

AG, PEOPLE v POYNING 1972 IR 402

Road Traffic Act 1961 – Ancillary Disqualification – Road Traffic Offence – Judicial Error – Law

Facts: The principle issue presented on this appeal was in what circumstances may a court impose an ancillary disqualification order under s. 27(1)(a) of the Road Traffic Act 1961 (‘the 1961 Act’) following a conviction in respect of an offence other than a road traffic offence where the effect of such an order was to disqualify the holder of a driving licence from driving a motor vehicle for a specific period of time? The appellant, Mr. Sweeney, had pleaded guilty to two counts of offences contrary to s.4 and s.18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (‘the 2001 Act’) respectively. The offences in question concerned the sale of a Ford Transit van using a false name to a Mr. Frank Butler for €4,200. The van in question was actually stolen from a laundry company in London. While this particular theft caused insurance difficulties for the owner of the vehicle (a Ms. Donna White), the van was ultimately returned to Ms. White and she was compensated through her own insurance company. The person who lost out as a result of this fraudulent act was Mr. Butler who had quite innocently paid out for a vehicle to which, he had no legitimate title. Mr. Sweeney ultimately received a suspended sentence of two years imprisonment in respect of both offences on condition that Mr. Butler was recompensed in full. Additionally, the learned trial judge disqualified Mr. Sweeney from driving for a four year period pursuant to s. 27(1)(a) of the 1961 Act. Mr Sweeney appealed against that part of the sentence. The principal issue which arose in the appeal was whether the trial judge erred in law or in principle in imposing a disqualification order in respect of the offences to which the appellant pleaded guilty.

Held by the Court in light of the applicable legislation and case-law including Conroy v. Attorney General [1965] I.R. 411 that the disqualification power in s. 27 could be exercised in cases other than motoring offences only where there was evidence that there was either an offence relating to a motor vehicle or where a motor vehicle was used in the commission of a crime such that in either case the trial judge could properly conclude from the facts proved or admitted in relation to the commission of the offence that the accused was unfit to exercise his right to drive a motor car on a public highway. It was the opinion of the Court that there were no such facts proved or admitted in the present case. Whilst it was true that the fraudulent conduct concerned a motor vehicle which the appellant knew to be stolen. It was necessary that the facts go further and that these demonstrated that the accused abused his right to drive by exercising this right in furtherance of criminal activities and that this was an integral feature of the offence attracting the making of the disqualification order under s. 27 of the 1961 Act. It was reasoned that it could not be said that the act of driving the vehicle on a public road was an essential component of the unlawful act of deception. It followed, therefore, that there was no evidence upon which the learned trial judge could properly have concluded that the appellant abused his right to drive by exercising that right in furtherance of his criminal activities such as would have triggered the potential application of a disqualification order under s. 27(1)(a) of the 1961 Act. Consequently, it was determined that the learned trial judge had erred in principle in making the disqualification order. The Court accordingly allowed the appellant”s appeal and set aside the making of the disqualification order.

Mr. Justice Hogan
1

In what circumstances may a court impose an ancillary disqualification order under s. 27(1)(a) of the Road Traffic Act1961 ("the 1961 Act") following a conviction in respect of an offence other than a road traffic offence where the effect of such an order is to disqualify the holder of a driving licence from driving a motor vehicle for a specific period of time? This, in essence, is the principal issue presented on this appeal.

2

The matter arises in the following way. The appellant, Mr. Sweeney, pleaded guilty to two counts of offences contrary to s.4 and s.18 of the Criminal Justice (Theft and Fraud Offences) Act2001 ("the 2001 Act") respectively. The offences in question concerned the sale of a Ford Transit van using a false name to a Mr. Frank Butler for €4,200. The van in question was actually stolen from a laundry company in London. While this particular theft caused insurance difficulties for the owner of the vehicle (a Ms. Donna White), the van was ultimately returned to Ms. White and she was compensated through her own insurance company. The person who lost out as a result of this fraudulent act was the unfortunate Mr. Butler who had quite innocently paid out over €4,200 for a vehicle to which, as it ultimately transpired, he had no legitimate title.

3

In the Circuit Court Mr. Sweeney pleaded guilty to these two offences. The first offence was one of theft (contrary to s. 4 of the 2001 Act), namely, the act of depriving Mr. Butler of the sum of €4,200. The second offence was that of possession of stolen property, namely, the Ford Transit van (contrary to s. 18 of the 2001 Act). For these offences Mr. Sweeney ultimately received a suspended sentence of two years imprisonment in respect of both offences on condition that Mr. Butler was recompensed in full. It is not in dispute but that full restitution has subsequently been made to Mr. Butler by the appellant. No appeal has been taken by the appellant in respect of these suspended sentences.

4

In addition, however, to the suspended sentence the learned trial judge disqualified Mr. Sweeney from driving for a four year period pursuant to s. 27(1)(a) of the 1961 Act. Mr Sweeney has appealed against that part of the sentence. The principal issue which arises in this appeal is whether the trial judge erred in law or in principle in imposing a disqualification order in respect of these offences...

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