Court of Appeal allows appeal on sentence severity but upholds final 6-year suspended sentence due to mitigating factors.

THE COURT OF APPEAL

[242/2017]

The President

Edwards J.

Kennedy J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

SHANE MURPHY

APPELLANT

JUDGMENT of the Court (ex tempore) delivered on the 27th day of November 2018 by Ms. Justice Kennedy

1. This is an appeal against severity of sentence. The sentence under appeal was imposed in Cork Circuit Court on the 24th October

2017 following a signed plea of guilty by the appellant.

2. The appellant had been sent forward on signed pleas of guilty in respect of 3 offences arising from an incident at Blackrock Road,

Cork city on the 8th march 2017. The offences concerned the offence of dangerous driving causing serious harm and two counts of

theft. This appeal is an appeal concerning the severity of the sentence imposed in respect of the dangerous driving causing serious

harm count for which a sentence of 6 years’ imprisonment was imposed with the final year suspended.

3. On the 8th March 2017, the appellant was the driver of a vehicle driving on the Blackrock Road in Cork when a Ms. Sheehan was

taking her 6-month old son for a walk in his buggy. A car suddenly came from behind at ferocious speed, according to Ms. Sheehan,

and collided with a parked car forcing that car onto the footpath knocking Ms. Sheehan to the ground and causing the buggy and

baby to be pinned against a wall. After the collision, the appellant and his passenger got out of the vehicle, retrieved items from the

car and fled. A witness followed them and contacted the Gardaí and the appellant was arrested. Items were found in his possession

which had been stolen from two retail stores, and the taking of which was recorded on CCTV. On arrest the appellant admitted driving

the vehicle, fleeing the scene and smoking cannabis prior to the collision, which was confirmed on analyses. He was detained in

hospital for his own safety having swallowed diamorphine and on the 10th March 2017, he was interviewed by the gardaí and made

admissions as outlined above.

4. The baby was taken to hospital and treated for a fractured skull and his mother was also treated for her injuries. The little boy was

continuing to undergo treatment at the time of sentence and was being reviewed on a regular basis by the neurosurgical team in Cork

University Hospital. A victim impact report was furnished to the court and read by the victim’s mother. In this she outlined to the

court the nature of the impact which caused her to be knocked to the ground and the buggy, with her baby in it, swept away from

her and out of her sight. The baby was pinned against a wall and she frantically tried to free him. She was unable to tell the extent of

his injuries and the child was understandably terrified and was crying uncontrollably. This was, without any doubt, a horrible

experience for mother and baby.

5. At the time of the offence, the appellant was intoxicated and was disqualified from driving. He has 184 previous convictions, 14 for

road traffic offences with two convictions for hit and run related offences and one conviction for careless driving.

6. The ground of appeal relied upon is that the judge failed to give sufficient weight to the mitigating factors and the appellant’s

personal circumstances. It is accepted on behalf of the appellant that the headline sentence of 6 years was within the appropriate

range.

Background and Personal Circumstances

7. In terms of the background and personal circumstances of the appellant, the Circuit Court heard that he was born on the 27th

February 1987 and that he had a history of substance abuse. He co-operated with the gardaí in interview and his solicitor contacted

the gardaí in early course indicating that the appellant would enter a plea in relation to all matters. A letter expressing his remorse

was written by the appellant from Cork prison approximately a week after the appellant was remanded in custody. He did not seek

bail. At the sentence hearing the judge was made aware that the appellant had a long term partner and a 5-year-old son. Whilst in

Cork prison, the appellant had undergone a methadone programme and has pursued his education. He has taken an anger

management course and at the time of sentence was an enhanced prisoner.

8. The plea in mitigation focused on the fact that the appellant had been sent forward on signed pleas of guilty and the remorse

expressed at an early stage by him. It is noted that the appellant had never sought bail. It was emphasized that he had sought to

make good use of his time in custody in an effort to rehabilitate himself.

9. In the course of his detailed sentencing remarks, the judge addressed the facts of the offence and identified the aggravating and

mitigating factors. In assessing the gravity of the offence, he identified the fact that the appellant was driving while disqualified and

under the influence of a controlled substance. He considered the appellant’s previous convictions, particularly those relating to the

driving of vehicles, the nature of the injuries suffered by the victim and the impact on the victim. In assessing his moral culpability,

the judge also took into account that the appellant had a substance addition. In mitigation, the judge considered the appellant to

have demonstrated genuine remorse, that he co-operated with the gardaí and in order to encourage rehabilitation, he suspended the

final year of the sentence.

10. This is a very serious offence. Almost every conceivable aggravating factor is present, to include that the appellant was

intoxicated while driving, that he was driving while disqualified, that he has previous convictions for driving offences, that he fled the

scene in the immediate aftermath, having first retrieved items from the vehicle.

11. Counsel for the appellant has presented the appeal for his client in a most realistic manner and has accepted that the headline

sentence identified by the judge was within range. However, we want to make it clear that we are of the view that the notional

sentence could and, in fact, should have been higher. The maximum sentence is one of 10 years’ imprisonment and when we consider

the aggravating factors, it is the view of this court that the appropriate headline sentence should properly have been one of 7½

years’ imprisonment. Had that been so, given the mitigating factors which were present, including, in particular, that the appellant

was sent forward on a signed plea of guilty, which he confirmed before the Circuit court, and the fact that he indicated through his

solicitor that he intended at all times was to plead guilty, this would have resulted in a considerable reduction in the headline

sentence of 7½ years to one of 6 years and with the appellant’s genuine remorse, together with his efforts to rehabilitate himself,

this court is of the view that the sentence would ultimately have been the same as that imposed by the sentencing judge. As can be

seen from the foregoing, whilst this court would have structured the sentence in a different way, ultimately, the sentence would

remain as one of 6 years with the final year suspended and therefore, we will not proceed to quash the sentence imposed.

12. We observe that it is firmly established that a guilty plea is a strong mitigating factor and, except in exceptional cases, an early

plea of guilty will result in a significant reduction in the sentence which would otherwise be imposed. This is particularly so where an

accused indicates an intention to plead guilty before a case reaches the court of trial and so obviates any need for disclosure

requests or other such material preliminary to trial.