DPP v Whelan

• Jurisdiction: Ireland
• Judge: Mr Justice McCarthy
• Judgment Date: 14 October 2019
• Neutral Citation: [2020] IECA 350
• Docket Number: [97/2018]
• Court: Court of Appeal (Ireland)
• Date: 14 October 2019

BETWEEN

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

RESPONDENT

AND

ADAM WHELAN

APPELLANT

[2020] IECA 350

Edwards J.

McCarthy J.

Kennedy J.

[97/2018]

THE COURT OF APPEAL

Sentencing – Dangerous driving causing serious harm – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Whelan, pleaded guilty to dangerous driving causing serious harm, contrary to s. 53 of the Road Traffic Act 1961, as substituted by s. 4 of the Road Traffic (No. 2) Act 2011, (Count no. 1) and to drink driving contrary to s. 4 of the Road Traffic Act 2010, as amended (Count no. 2). On the 20th of February 2018, the appellant was sentenced in the Trim Circuit Criminal Court to six years imprisonment with the final two years suspended in relation to the s. 53 offence, and to four months imprisonment for the offence of drink driving. Further, the appellant was disqualified from driving for ten years in respect of Count no. 1, and for one year in respect of Count no. 2. The appellant appealed to the Court of Appeal against severity of sentence, submitting that that the sentencing judge erred: (i) in deciding that the offence was on the higher end of offences of this nature; and (ii) in having insufficient regard to the mitigating factors in the case, the early guilty plea, the appellant’s expressions of remorse, his difficult family background and his efforts at rehabilitation.

Held by the Court that it was in the public interest to impose conditions upon the reintroduction of the appellant to the community so that the community would be protected and so that the appellant could be rehabilitated. The Court thought that the headline sentence was rightly conceded to be appropriate given the offence of this gravity. The Court held that a certain discount was necessary for the purpose of recognising the mitigating factors. The Court was troubled by the extent of the terms of the suspension, and it thought that the appropriate course, having regard to the fact that it thought that an error of principle occurred in that regard, was to increase somewhat the level of the suspended period, but to impose conditions to permit the appellant’s safe re-introduction into the community in the context of encouraging his rehabilitation. The Court was fortified in this approach on consideration of the reports as to his conduct in prison.

The Court held that it would not interfere with the term of imprisonment of six years in the course of resentencing, but would confine itself to an extension of the suspensory period from two years to two and a half years but with the imposition of additional conditions of the kind which were prescribed in the Probation Report. These conditions were that the appellant should: (i) undertake offence and victim focused intervention as directed by the supervising Probation Officer – of course to remain under the supervision of the Probation Service; (ii) attend aftercare and addiction service as requested by the supervising Probation Officer; (iii) attend training and employment services as directed by the supervising Probation Officer; and (iv) observe all directions of the Probation Service for the period of suspension. The period of suspension the Court proposed to extend reduced the period in custody but extended the supervisory period; the appellant would remain under the supervision of the probation authorities according to the conditions for a period of three years after his release.

Appeal allowed.

JUDGMENT ( ex tempore) of the Court delivered on the 14th day of October 2019 by Mr Justice McCarthy

1 This is an appeal against severity of sentence. The appellant pleaded guilty to dangerous driving causing serious harm, contrary to s.53 of the Road Traffic Act, 1961, as substituted by s.4 of the Road Traffic (No.2) Act, 2011, (Count no 1) and to drink driving contrary to s.4 of the Road Traffic Act, 2010 as amended.(Count no 2) On February 20th 2018, the appellant was sentenced in the Trim Circuit Criminal Court to six years imprisonment with the final two years suspended in relation to the s.53 offence, and to four months imprisonment for the offence of drink driving. Further, the appellant was disqualified from driving for ten years in respect of count number one, and for one year in respect of count two.

2 The incident took place in the early hours of Saturday September 17th 2016, at approximately 4 a.m., when the appellant was driving in Moyfeigher, Ballivor, Co. Meath. The appellant was under the influence of alcohol and drugs at the time. The injured party, Ms. Kettle, was in the passenger seat of the car, sitting on another girl's lap. She recalled being reluctant to get into the car, but did not want to be left behind in Trim. She described the appellant driving dangerously and performing ‘doughnuts’ on the Dublin road. There were four occupants in the vehicle when the appellant was driving though Ballivor. The injured party described the appellant as driving ‘unbelievably fast’ and that he was drinking from a can of beer while driving. Another occupant of the vehicle, Ms Delaney, also described the appellant as driving at excessive speed. She said that she could not recall the accident, but in the immediate aftermath, she and the others in the car realised that Ms Kettle was seriously injured and went to a nearby house seeking help. Another occupant of the vehicle, Mr Hogan, also recalled the appellant driving at speed, and that the appellant had been...