DPP v Walsh
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 27 July 2017 |
| Neutral Citation | [2017] IECA 240 |
| Docket Number | 4/17 |
| Court | Court of Appeal (Ireland) |
| Date | 27 July 2017 |
[2017] IECA 240
THE COURT OF APPEAL
Hedigan J.
Birmingham J.
Edwards J.
Hedigan J.
4/17
Sentencing – Dangerous driving causing serious bodily harm – Driving disqualification – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Walsh, entered a guilty plea, on the 4th July, 2014, to the offence of dangerous driving causing serious bodily harm contrary to s. 53(1) of the Road Traffic Act 1961. In Cork Circuit Criminal Court on the 30th July, 2014, he was sentenced to four years imprisonment with the final year suspended and he was disqualified from driving for 15 years. The appellant appealed to the Court of Appeal against severity of sentence. The appeal was only in respect of the 15 years disqualification. The appellant submitted that it was wrong in principle in that it militated against his rehabilitation post release by severely curtailed his prospects of getting and/or keeping employment. The appellant submitted that it was disproportionate in the circumstances of the case and given the custodial sentence imposed. The appellant also submitted that s. 26 of the 1961 Act provides on conviction on indictment for a s. 53 offence for a consequential disqualification for the first offence of not less than four years. The Court was referred to s. 26(3) where it is stated that the disqualification shall operate unless there is a special reason in the particular case. The appellant argued that there was such a special reason in his case.
Held by the Court that a young driver found to have acted recklessly, irresponsibly or thoughtlessly may well be considered unfit to drive until he reaches a certain level of greater maturity; a court might reasonably consider that keeping him off the road for a particular limited number of years may be necessary in the public interest. The Court held that different considerations must apply in the case of the appellant, a man of almost 50 years. The Court speculated that the impact of the accident in this case could have brought the appellant to face up to the recklessness and irresponsibility shown by him in driving a 42 tonne lorry and trailer that was so full of defects as to render it unroadworthy. However, the Court noted that only one month after the accident, which caused devastating injury to a Mr O’Driscoll, the appellant was stopped just one kilometre from the scene of the accident driving the same lorry still in its unroadworthy condition. The Court was disturbed by the level of irresponsibility and recklessness demonstrated by a professional driver of almost 50 years of age. As a lifetime disqualification was not raised in the proceedings before the Circuit Court or the hearing of the appeal, the Court refrained from going beyond the period of disqualification of 15 years. The Court would not however decrease the period imposed.
The Court held that the appeal must be dismissed.
Appeal dismissed.
Introduction
This is an appeal against severity of sentence. The appellant entered a guilty plea, on the 4th July, 2014, to the offence of dangerous driving causing serious bodily harm contrary to s. 53(1) of the Road Traffic Act 1961 as substituted by s. 4 of the Road Traffic (No. 2) Act 2011. In Cork Circuit Criminal Court on the 30th July, 2014, he was sentenced to four years imprisonment with the final year suspended and he was disqualified from driving for 15 years. The custodial sentence was served in Cork Prison and Shelton Abbey and he was granted early release on the 13th January, 2016, on the basis of good behaviour and engagement with services. The appeal herein is only in respect of the 15 years disqualification.
This appeal was brought outside of time but leave was granted by this Court on the 6th March, 2017. The enlargement application was based on the fact the appellant was 49 years old upon entering prison for the first time and he was in shock, poor mental health and very stressed at the time of his sentencing. He focused on the imprisonment rather than the disqualification.
The offence occurred on the 7th August, 2013, at approximately 5.40 pm while the appellant was driving an articulated truck and attempted to overtake a cyclist on a rising bend to the left. It seems he pulled back in before clearing the cyclist and the cyclist was struck by the rear wheels of the trailer. It was a busy section of road with limited visibility. It was a 42 tonne load with the vehicle carrying its own load of timber and a separate load of timber on a trailer.
On the 4th June, 2013, the tractor unit and semi-trailer were found to be dangerously defective at a DOE test. The vehicle failed on 70 grounds including critical defects involving brakes, lights and mirrors. The defects had not been addressed when the accident occurred. Particularly, the rear side mirror was cracked, rendering it useless. This mirror was the one that should have been used by the appellant to observe whether he was past the cyclist.
The appellant stayed on the scene and cooperated with the investigation. He pleaded at the earliest opportunity. Garda O'Leary accepted that he was remorseful.
The injured party, Mr. O'Driscoll, suffered life threatening injuries. He has had extensive medical treatment, spent a considerable period of time in hospital and was still in the National Rehabilitation Hospital when he wrote his victim impact statement. He was in a wheelchair on the sentencing date. He also suffered severe psychological injuries. He was in intensive care for four months, the first month of which he was in an induced coma. He had a fractured pelvis, two broken hips, legs and ankles, a minor head and shoulder injury, liver and kidney failure, bowel and bladder damage and a severed spinal cord. He is confined to a wheelchair. At the time of sentencing he was reliant on a colostomy bag and a catheter and did not know if or when he would be able to live without them. He has severe ongoing pain. It has immensely impacted every aspect of his life. His victim impact statement also noted that his spinal cord injury shortens life expectancy by 15 to 30 years.
The appellant was a hard-working man and was working as a haulier at the time of his imprisonment. At sentencing it was noted that he was the sole carer for his teenage son. He had been under financial and other pressures at the time. His brother was missing in England and it ultimately transpired that he had committed suicide. A psychiatric report was handed into court.
Upon his release the effect of the disqualification became apparent. He lives in a remote area of Cork and works in Cork harbour. He has to rely on lifts as the public transport links are poor. He often has to leave home very early and returns very late. The ban has had a more pronounced effect on him than it would if he were living in an urban area. It has also affected his employment prospects in the future.
The appellant is currently 52 years old and the ban effectively disqualifies him from driving for the rest of his working life or a large proportion thereof.
He has nine previous convictions, all for road traffic offences. The most relevant one was on the 4th September, 2008, for careless driving for which he was fined €400. A month after the incident the subject matter of this appeal the appellant was stopped by Gardaiì one kilometre from the locus of the accident and subsequently convicted for no certificate of roadworthiness in relation to the tractor unit and the trailer and failure to secure the load.
Before imposing the sentence and disqualification the sentencing judged noted that he had to balance the seriousness and level of criminality with the appellant's personal circumstances including his plea of guilty. The sentencing judge noted in relation to the disqualification that the appellant's age in relation to his driving was an aggravating factor. He noted the dangerous bend at which the appellant overtook the victim on his bicycle. He knew the particular location and considered the appellant's driving to have been criminally negligent. He added also that the truck he was driving was seriously defective. The recklessness and irresponsibility of the appellant clearly impressed itself upon the learned sentencing judge. So too did the devastating consequences for the victim cyclist. He noted the obligation to disqualify the appellant. He also noted that living where he did, a disqualification from driving would be like an ongoing prison sentence.
The appellant submits two grounds of appeal. The first of these is that the period of imprisonment was not wrong in principle but the lengthy consequential disqualification is. It militated against his rehabilitation post release in that it severely curtailed his prospects of getting and/or keeping employment. It was wrong in principle or length in that it was disproportionate in the circumstances of the case and given the custodial sentence imposed.
The second ground is that s. 26 of the Road Traffic Act 1961, as amended, provides on conviction on indictment for a s. 53 offence for a consequential disqualification for the first offence of not less than four years. The Court was referred to s. 26(3), as amended, where it is stated that the disqualification shall operate unless there is a special reason in the particular case. He argues there is such a special reason in his case. It must be noted that at the hearing of the appeal counsel for the appellant focussed more upon the overall length of disqualification rather than the four...
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...(DPP) v. Sweeney [2014] IECA 5; The People (DPP) v. Cunningham [2015] IECCA 2; Collins v. DPP [2017] IEHC 779; The People (DPP) v. Walsh [2017] IECA 240, and; The People (DPP) v. Coen [2022] IECA 31 . It was also noted that in R. v. Ireland (1988) 10 Cr. App. R. (S.) 474, the English and We......