Court dismisses undue leniency appeal for dangerous driving sentence as it was not a substantial departure.

THE COURT OF APPEAL Neutral Citation: [2025] IECA 166 Record Number: 40CJA/2024

McCarthy J. Kennedy J. Burns J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

- AND -

KEVIN MCMENAMIN RESPONDENT

JUDGMENT of the Court delivered on the 6th day of May, 2025 by Ms. Justice Tara Burns.

1. This is an application pursuant to s. 2 of the Criminal Justice Act 1993 (‘the 1993 Act’)

seeking a review of the sentence imposed on the respondent on grounds of undue leniency.

2. On 24 October 2023, the respondent entered a plea of guilty to an offence of dangerous driving causing serious bodily harm contrary to s. 53(1) of the Road Traffic Act 1961 (‘the 1961 Act’). Count 2 (driving without a driving licence) and Count 5 (driving without insurance) were to be taken into account.

3. On 19 January 2024, the respondent was sentenced to a term of imprisonment of 21 months and was disqualified from driving for a 5 year period.

Background

4. On 22 July 2021, the injured party was cycling along Herbert Park towards the junction with Morehampton Road. The respondent, who was driving a three-axel truck, was travelling in the same direction and passed by the injured party. There was a queue of traffic waiting to turn onto Morehampton Road which the respondent joined. The injured party cycled towards the traffic lights at the junction with the intention of continuing straight ahead onto Marlborough Road. Both the injured party and the respondent passed through the traffic light just as it turned red with the injured party cycling alongside the respondent to the front of his truck. However, the respondent suddenly turned left, without indication, thereby knocking the injured party to the ground where she became trapped under the truck.

5. The victim sustained very severe injuries. She spent eight days in an induced coma and 19 weeks in hospital. She required major pelvic surgery and suffered multiple injuries to her right hip, left leg and left ankle, which required many operations. The victim also suffered a “degloving” type injury to her left leg, which required several surgeries to include a skin graft operation.

6. The respondent entered an early plea of guilty in the matter, expressed remorse about the incident and offered to pay the injured party’s out of pocket expense of approximately €5,000.

Personal Circumstances of the Respondent

7. The respondent was 39 years of age at the time of the incident. He had 33 previous convictions, 31 of which related to various road traffic offences The respondent had two drink driving convictions dating from 2009 and 2014. He had eight convictions for driving without insurance dating from between 2004 and 2018. He had been disqualified from driving in 2015, 2017 and 2018. The 2018 disqualification was operative at the time of this incident. The respondent had a long work history as a driver. He had been an exceptional sports man in his youth and was a well thought of member of his community with several references speaking of his good character handed in to Court.

Sentencing Court’s Determination

8. When pronouncing sentence, the sentencing judge said, inter alia:-

“The cyclist received what could be termed catastrophic injuries. She was in an induced coma for a prolonged period of time and she was in hospital for a prolonged period of time. And it seems, I think, probably, she will be left with long … sequelae and consequences for the rest of her life. I think that I can clearly infer from the injuries that she sustained.

Now, in relation to the driving on the date in question, obviously this defendant wasn't taking as much care as he should have. The cyclist was on the road to be seen and Mr McMenamin didn't see her. Obviously, all drivers are guilty of inattention. That goes without saying. But when you're driving a lorry or a truck, I think you have greater responsibility. And if you're turning left, you have greater responsibility.

Particularly, I suppose, in built-up areas, there's always a possibility of a cyclist being there.

Now, the mitigation has identified as clear, there is a plea of guilty. There's cooperation with the guards. He has … a long history of work. The defendant has a distinguished history of engagement with sport. I have before me, and I have read very impressive references given on his behalf. And I've no doubt that this defendant before me, most of the time, is a very, very decent man. He also, unfortunately, has a record of conviction. Some for road traffic offences, I note, and one for drunken driving. Mr McMenamin received, I think, a disqualification period of five years. And it seems he was disqualified when he drove on the date in question. And that, in the Court's view, is a seriously aggravating factor.

Now, I think the way this Court approaches dangerous driving causing death or serious harm is, in the absence of aggravating factors, it's unlikely that a party will face a term of imprisonment because accidents occur -- can occur, in the most innocuous of ways. As I indicated … most drivers can be guilty of inattention and not giving the appropriate attention to a certain situation. His driving on the day was dangerous, but it was no more than dangerous. It was not reckless. There was no speed involved, there was no phone involved, there was no substance abuse involved. So, there's no aggravating factors when it comes to his driving. As I have indicated already, the aggravating factor is driving while disqualified. And that is a serious aggravating factor. It demonstrates to the Court that this defendant … had no great respect for the law of the land. He was given a disqualification, and he should have obeyed it. So, unfortunately, by reason of that aggravating factor, I'm afraid this Court is going to impose a custodial term on Mr McMenamin. I would say directly to everybody in this room that if that aggravating factor was not present, Mr McMenamin wouldn't be going to prison. It is simple as that. And I think the appropriate sentence for him taking everything into account, is a term of imprisonment of 21 months…”

Grounds of Application

9. The grounds upon which the applicant seeks a review of the sentence imposed are:-

1. “The Learned Sentencing judge erred in principle in imposing a sentence that did not adequately reflect the nature of the charges and the consequences of the acts of the Respondent and their effect on the victim.

2. Further, or in the alternative, the learned Sentencing Judge erred in principle by applying insufficient weight to a number of important aggravating factors surrounding the commission of offences including:

(i) The manner in which the Respondent drove a heavy articulated vehicle in a built up residential area where vulnerable road users were present;

(ii) The failure by the Respondent to indicate at all prior to turning left at a junction;

(iii) The failure by the Respondent to adequately check his mirrors prior to completing the left turn;

(iv) The manner in which the Respondent broke a red light while completing the left turn without indicating;

(v) The Respondent’s multiple previous convictions for road traffic related offences;

(vi) The fact that the Respondent was disqualified from driving at the time of the commission of this offence.

3. Further, or in the alternative, the Learned Sentencing Judge erred in principle in the manner in which he structured the sentence imposed by applying undue weight to the mitigating factors such that were present which resulted in him failing to adequately reflect the seriousness of the offending behaviour before him.

4. The Learned Sentencing Judge erred in principle in circumstances where the sentence imposed failed to adequately reflect the principles of specific and/or general deterrence.”

The Parties Submissions

10. The applicant submitted that the sentence imposed did not adequately reflect the serious nature of the offending in this case in that the aggravating features were not properly taken account of, to include the manner of the respondent’s driving involving a failure to indicate, driving through a red light, and failing to notice the cyclist, when driving a heavy goods vehicle in a residential area; the respondent’s previous convictions for road traffic offences;

and the fact that the respondent had been disqualified from driving at the time of the incident. It was further submitted that too much regard was had to the mitigating factors and that the principles of general and specific deterrence were not reflected in the sentence imposed.

11. The respondent submitted that the sentencing judge correctly identified all aggravating and mitigating factors and imposed a sentence which fell within his margin of discretion.

Discussion and Determination

12. The principles for determining undue leniency are well established and are set out in The People (Director of Public Prosecutions) v. Stronge [2011] IECCA 79 which this Court adopts. In essence, the applicant must prove that the sentence imposed constitutes a substantial departure from the appropriate sentence such that an error of principle is established, before this Court will intervene.

13. As reflected by the guilty plea entered by the respondent in this matter, the driving which took place was dangerous driving and not a mere matter of inattention. The respondent was driving a heavy goods vehicle, in a residential area, and turned left through a red light, without warning and without noticing the cyclist on his inside. In addition, he was not the holder of a driving licence or a valid policy of insurance at the relevant time. Aside from the manner of his driving, the respondent had a very long history of previous road traffic offences and was disqualified at the time of the commission of this offence, thereby demonstrating a complete disregard for the Road Traffic Acts and other road users. A term of imprisonment was most certainly merited for such offending.

14. However, mitigating features were also present to include an early guilty plea, a genuine expression of remorse, together with a long work history and good character references.

15. The onus of establishing that an unduly lenient sentence has been imposed rests with the applicant. In the instant case, we are of the view that it has not been established that the sentence imposed represents a substantial departure from the appropriate sentence. While the respondent’s driving was dangerous, it did not include the aggravating features of speed, intoxication, or use of a mobile phone. We are also of the view that the sentence imposed adequately reflected the principles of general and specific deterrence. Having regard to the mitigating factors present, we are of the opinion that while the sentence might be categorised as lenient, it was not unduly lenient within the meaning of the 1993 Act.

Conclusion

16. We therefore dismiss the applicant’s application.

Approved

No Redaction Needed