The Director of Public Prosecutions v Rigney

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards
• Judgment Date: 03 April 2025
• Neutral Citation: [2025] IECA 105
• Docket Number: Record No: 149/2024

In the Matter of An Application Pursuant to Section 2 of the Criminal Justice Act 1993

Between/

The People (At the Suit of the Director of Public Prosecutions)

Applicant

and

Emmet Rigney

Respondent

[2025] IECA 105

Edwards J.

McCarthy J.

Burns J.

Record No: 149/2024

THE COURT OF APPEAL

Sentencing – Dangerous driving causing serious bodily injury – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Rigney, was charged with a single count of dangerous driving causing serious bodily injury arising contrary to s. 53(1) of the Road Traffic Act 1961 as substituted by s. 4 of the Road Traffic (No. 2) Act 2011. On 28 April 2023, the respondent entered an early plea of guilty in regard to that offence. The respondent was sentenced to two years imprisonment, fully suspended for two years. The sentencing judge imposed a condition on the sentence that the respondent pay €10,000 to the victim’s parents for her benefit within six months of the sentencing hearing. The respondent also received a six-year disqualification from driving. The applicant, the Director of Public Prosecutions (the Director), applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 for review of the sentence imposed on the respondent by the Circuit Court on grounds that it was unduly lenient. By a Notice of Application for Review of Sentence lodged on 20 May 2024, the Director advanced four grounds in support of the application as follows: (1) the sentencing judge erred in principle by fixing the headline sentence at a point which did not involve a sufficient element of punishment by reference to the gravity of the offence; (2) the sentencing judge erred in principle by failing to attach sufficient weight to (i) the evidence of racing or competitive driving, (ii) the evidence of overtaking on a bend and (iii) the devastating injuries to the young child who was injured; (3) the sentencing judge erred in principle in suspending the entire period of custody thereby failing adequately to reflect the seriousness of the offending behaviour, notwithstanding the mitigating circumstances; and (4) the sentencing judge erred in principle in failing to impose a sentence which contained a sufficient element of deterrence either specifically for the respondent or more particularly and indeed especially to drivers in general.

Held by the Court of Appeal that the trial judge’s approach to assessing the gravity of the case was not to be legitimately criticised. The Court found that she had appropriate regard to, and properly assessed, the proven level of the respondent’s culpability having regard to the evidence before her; she also had appropriate regard to, and properly acknowledged and took account of the significant harm done. The Court considered that in the circumstances of the case her nomination of a headline sentence of three and a half years imprisonment was justified and proportionate, having regard to the level at which she assessed culpability, the harm done and range of available penalties. The Court therefore rejected the ground of review which contended that gravity was inappropriately or improperly assessed. The Court held that this was a finely balanced case; the respondent’s culpability was more than that which intrinsically attaches to dangerous driving according to the test articulated in People (Attorney General) v Quinlan (1962) ILT & SJ 123 and (1963) 219, as approved by the Supreme Court in DPP v O’Shea [2017] 3 I.R. 684. The Court was not persuaded that the sentencing judge got the balance wrong in all the circumstances. The Court did not find the sentence unduly lenient.

The Court dismissed the application.

Application refused.

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 3rd day of April, 2025.

Introduction

1 This is an application brought by the Director of Public Prosecutions (i.e., “the applicant” or “the Director”) pursuant to s. 2 of the Criminal Justice Act 1993 (“the Act of 1993”) for review of the sentence imposed on Emmet Rigney (i.e., “the respondent”) by the Circuit Court on grounds that it was unduly lenient.

2 The respondent was charged with a single count of dangerous driving causing serious bodily injury arising contrary to s. 53(1) of the Road Traffic Act, 1961 as substituted by s. 4 of the Road Traffic (No. 2) Act, 2011. On the 28th of April 2023 Mr. Rigney entered an early plea of guilty in regard to this offence.

3 The respondent was sentenced to two years imprisonment, fully suspended for two years. The sentencing judge imposed a condition on this sentence that the respondent pay €10,000 to the victim's parents for her benefit within 6 months of the sentencing hearing. Mr. Rigney also received a 6-year disqualification from driving.

4 By a Notice of Application for Review of Sentence lodged the 20th of May 2024, the Director has advanced 4 grounds in support of this application as follows:

• 1. “The learned sentencing judge erred in principle by fixing the headline sentence at a point which did not involve a sufficient element of punishment by reference to the gravity of the offence.

• 2. The learned sentencing judge erred in principle by failing to attach sufficient weight to the following:

  • i. The evidence of racing or competitive driving

  • ii. The evidence of overtaking on a bend

  • iii. The devasting injuries to the young child who was injured

• 3. The learned sentencing judge erred in principal in suspending the entire period of custody thereby failing adequately to reflect the seriousness of the offending behaviour, notwithstanding the mitigating circumstances.

• 4. The learned sentencing judge erred in principal in failing to impose a sentence which contained a sufficient element of deterrence either specifically for this accused or more particularly and indeed especially to drivers in general.”

Factual Background

5 At the sentencing hearing of the 26th of April 2024, a Garda Paul Monaghan gave evidence in relation to the factual background of the dangerous driving causing serious injury offence.

6 On the 14th of August 2021, a road traffic collision occurred at Ballingarry, Co. Tipperary between two vehicles. The first vehicle was an Audi A4 and was driven by the respondent. There were two passengers in the rear of this car: a Ms. Megan Behan and a Mr. Joe Corrigan. The Audi A4 was travelling from Borrisokane towards Birr on the N52.

7 The second vehicle was an Opal crew cab van, and was driven by a Mr. MK. Mr. MK had his two children in the rear of the vehicle: K who was 11 years of age and E (i.e., “the victim”) who was 5 years of age. E was seated in a child seat in the back of this vehicle, which was travelling from Birr to Borrisokane on the N52.

8 Garda Monaghan stated in evidence that Mr. MK's account of the accident as provided in a statement made by him to gardaí was as follows:

“I travel a lot on this road, and I know at around 1pm, I think, it was the time I was driving along the road after Ballingarry when I saw a car driving fast. There were three cars coming towards me. It looked like they were racing. The first car was coming at speed. He was on his side of the road, then the back of his car was coming out on my side. He tried to avoid me but it was too late. He was driving too fast and it was a slippery road. I could do nothing when he came towards me, it was too late, he hit me head on. His speed for the weather conditions was too fast, it was wet and misty weather … .”

9 Garda Monaghan's evidence was that Mr. MK had gone on to state to gardaí that in the immediate aftermath the respondent had stated to him, “ Sorry, I lose control, the road is slippy”.

10 Garda Monaghan also gave evidence that Ms. Megan Behan, a rear seat passenger in the respondent's vehicle, had provided the following account to gardaí as to her recollection of what had occurred:

“When we got to Ballingarry, just before we crashed, the lads had gone round the bend and we got to a straight stretch. Emmett passed out Gavin's car. Gavin's car was behind us then and Cathal's car was now in front. Emmett then overtook Cathal's car straightaway. I'm not sure if he even went back onto the right side of the road after overtaking Gavin's car. I think he may have overtaken both at the same time, I'm not sure. We were coming to a bend and Emmet tried to get back on the right side of the road in front of Cathal's car. Just as we got to the corner, I could see the lights of the van coming for us. I heard Emmett scream ‘fuck’, and I looked up and I seen the two headlights of the van. That's all I remember.”

11 The garda further testified that an account provided to gardaí by the second rear seat passenger in the respondent's vehicle, Mr. Joe Corrigan, had stated:

“I remember the crash between our car and an oncoming van. It was head on. Around 500 metres before the crash, Emmett overtook Cathal Molloy. This was on a straight stretch of road. I remember Cathal wasn't travelling fast. Coming into the next bend, which is to the left, there is a slip road off to the right. I told Emmett to slow down. I remembered this road to be dangerously bendy. I felt Emmett was going too fast for this part of the road. The next I remember is seeing lights and then there was a loud bang.”

12 The sentencing court heard that the collision was investigated by a forensic collision investigator, and his report, with maps and photographs annexed, had formed part of the Book of Evidence. The Book of Evidence was before the sentencing judge. However, the forensic collision investigator was not called as a witness at the sentencing. Rather, as had occurred in the case of the lay witnesses to the incident who had provided statements to gardaí, Garda Monaghan summarized what this witness's evidence would have been had the matter gone to trial, based on...