The People (At the Suit of the DPP) v Daniel O'Brien
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 17 May 2021 |
| Neutral Citation | [2021] IECA 355 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 251/2020 |
[2021] IECA 355
Birmingham P.
Edwards J.
Donnelly J.
Record No: 251/2020
THE COURT OF APPEAL
Sentencing – Endangerment – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr O'Brien, came before the Cork Circuit Criminal Court on the 4th of December, 2020, and pleaded guilty to four counts on the indictment, namely: two counts of endangerment contrary to s. 13 of the Non-Fatal Offences Against the Person Act 1997; one count of driving a mechanically propelled vehicle whilst there was no insurance covering same contrary to s. 56, subsection (1) and subsection (3) of the Road Traffic Act 1961, as amended by s. 18 of the Road Traffic Act 2006; and one count of driving a mechanically propelled vehicle whilst not having a driving licence contrary to s. 38 of the 1961 Act. A nolle prosequi was entered in relation to two other counts. The appellant was sentenced to six months’ imprisonment in respect of the s. 56 count and was disqualified from driving for a period of 12 years in respect of same. He received a sentence of four years’ imprisonment in respect of the s. 13 counts, and the s. 38 offence was taken into consideration. The appellant appealed to the Court of Appeal against the severity of his sentence on the following grounds: (i) the sentence was excessive and disproportionate in all the circumstances; (ii) the sentencing judge erred in principle in failing to afford any or sufficient weight to the various mitigating factors in the case; (iii) the sentencing judge erred in principle in failing to give any or any adequate consideration to the prospect of structuring the sentence and suspending a portion thereof to allow for the appellant’s rehabilitation; and (iv) the sentencing judge erred in principle in imposing the sentence in that sufficient weight was not afforded to the public interest in the appellant’s rehabilitation.
Held by the Court that to reflect the totality of the offending behaviour the sentencing judge could not have reasonably have envisaged starting below six years on the available range. Although his starting point was unstated the Court was prepared to infer that it could not have been less than six years; on that basis the post mitigation sentence of four years imprisonment which was imposed would imply that the appellant received a discount of one third to reflect the mitigation in the case. The Court held that a judge’s decision to suspend or not to suspend part of a sentence is very much a matter within his/her discretion, and the Court will always be very slow to criticise or interfere with the exercise of such discretion. Given the evidential deficit, the Court considered that the sentencing judge could not be criticised for how he exercised his discretion. In the circumstances, the Court held that the sentence imposed was neither excessive nor disproportionate. The Court also found no error of principle with respect to how the mitigating circumstances in the case were dealt with, including the fact that no portion of the sentence was suspended.
The Court dismissed the appeal.
Appeal dismissed.
JUDGMENT of the Court ( ex tempore) delivered on 17th day of May, 2021 by Mr Justice Edwards.
The appellant in this case came before Judge Ó Donnabháin in the Cork Circuit Criminal Court on the 4th of December, 2020, and pleaded guilty to four counts on the indictment, namely: two counts of endangerment contrary to Section 13 of the Non-Fatal Offences Against the Person Act 1997; one count of driving a mechanically propelled vehicle whilst there was no insurance covering same contrary to Section 56, subsection (1) and subsection (3) of the Road Traffic Act, 1961; as amended by Section 18 of the Road Traffic Act, 2006; and one count of driving a mechanically propelled vehicle whilst not having a driving licence contrary to section 38 of the Road Traffic Act, 1961 as amended. A nolle prosequi was entered in relation to two other counts.
The appellant was sentenced to six months' imprisonment in respect of the s. 56 count and was disqualified from driving for a period of 12 years in respect of same. He received a sentence of four years' imprisonment in respect of the s. 13 counts, and the s.38 offence was taken into consideration. The appellant now appeals against the severity of his sentence.
The court heard evidence from Garda Ryan Dillon, who on the 6th of February, 2019, was on duty conducting a checkpoint on the South Douglas Road in Cork. At approximately 4.00 p.m., Garda Dillon observed a black BMW, license plate 06 C 20779, approaching the checkpoint from the direction of Douglas and heading towards Cork City. The vehicle slowed as it approached the checkpoint but did not stop. Garda Dillon recognised the driver as being the appellant. It then swerved at speed in direction of Garda Dillon, requiring him to take evasive action. In the process, his hand trailed behind him and was clipped by the wing mirror of the BMW.
The appellant continued driving towards Cork City at speed. He overtook a vehicle which had stopped at a set of traffic lights displaying red. The BMW then narrowly avoided colliding with a Ms Brenda O'Malley, who was attempting to cross the road at the time with her child's buggy. Ms O'Malley had to pull the buggy back onto the footpath in order to avoid collision.
Following the incident, the appellant presented himself at Togher Garda Station, Cork. He was identified by Garda Dillon, and was arrested and detained. An interview was conducted but yielded nothing of evidential value. It transpired that the appellant had no insurance or driving license at the time of the incident, and that the appellant had previously been disqualified from driving for a period of eight years, and that disqualification was still in effect at the time of the incident.
Ms O'Malley did not wish to give a victim impact statement but did say that the incident was shocking for her and that she was glad to hear of it being over.
Garda Dillon stated that he feared for his life in the moment but had been able to continue with his duties.
The appellant was 28 years old at the time of sentencing. He is married and has three young children aged between two years and nine years. He spent a considerable time in custody as a juvenile and completed his junior cert whilst incarcerated. He thereafter qualified as a personal trainer and worked for a period of time as such. The appellant suffers from epilepsy and is taking medication for that, although had never been refused a licence on medical grounds.
The appellant had 44 previous convictions, although none related to endangerment, with the most recent dating from the 17th of September 2020, for road traffic offences. He had three previous convictions for assault, the most recent being a conviction for s. 3 assault recorded in 2013. At the time of sentencing he was in custody, serving a sentence for the road traffic offences recorded on the 17th of September 2020. It was accepted by Garda Dillon that the appellant was engaging with services there to address certain addictions, and that he was also availing of the school and gym in an attempt to get his life back on track.
Garda Dillon acknowledged that the appellant had presented himself to the Gardaí at Togher Garda station after the events. He agreed with defence counsel that the appellant had entered an early plea and that Ms O'Malley had been grateful for this as it meant the matter was coming to an end. Garda Dillon acknowledged that the appellant had expressed remorse for his actions and had directed Counsel to apologise directly to the two victims.
The sentencing judge began his remarks by acknowledging the guilty plea, and then concluded from the evidence that there was an element of definite deliberation about the appellant's driving. It was bad enough that the appellant knew that he had been recognised by Garda Dillon and had then driven the car at him, but he had then gone further by proceeding through a red light in disregard of the safety of other road users, including Ms O'Malley and her child. The sentencing judge referred to this aspect as representing actual endangerment, involving the elements of recklessness and disregard for the safety of others. It was specifically noted that the appellant was disqualified from driving at the time and should not have been on the road. The sentencing judge also expressed concern about the medical condition (uncontrolled epilepsy) suffered by the appellant and wondered whether the appellant was a person capable of holding a driving licence at all and if he had disclosed his condition when he had applied for a licence. He was of the view that the medical condition was a matter which he had to consider.
The appellant's previous convictions in relation to having no insurance and being off the road at the time were identified as an aggravating factor. Also identified as an aggravating factor was the appellant's continuation of his reckless behaviour after escaping from Garda Dillon, which the sentencing judge referred to as being “ a definite stepping up of the endangerment”. In sentencing for the endangerment counts, the sentencing judge acknowledged that the plea entitled him to some discount from a potential higher sentence, before determining upon a sentence of four years. The sentencing judge declined to suspend any portion of the sentence due to the fact that the appellant had been disqualified at the time of the offending. Having requested and received confirmation from Counsel that the potential maximum sentence for driving...
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