Court of Appeal quashes seven-year sentence for dangerous driving causing death as unduly severe and re-sentences to five years suspended.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

76/15

The People at the Suit of the Director of Public Prosecutions

Respondent

And

James O’Donovan

Appellant

JUDGMENT of the Court delivered on the 24th day of June 2016 by

Mr. Justice Birmingham

1. On the 3rd February, 2015, at Naas Circuit Court the appellant was convicted of the offence of dangerous driving causing death,

the details of the offence being that on the 27th December, 2011, at Youngstown, Athy, he caused the deaths of Theresa Kiely and

Rosanna Potts. Following his conviction, he was sentenced to a term of seven years imprisonment and he now appeals against both

conviction and severity of sentence.

2. The basic facts are that the fatal crash occurred late in the afternoon of the 27th December, 2011, on a straight stretch of road

between Kilcullen and Athy. The appellant was driving a Mitsubishi Pajero which went on to the wrong side of the road, crashing into

a Toyota Prius which was being driven in the opposite direction and in doing so caused the death of the driver of that vehicle, Ms.

Theresa Kiely, as well as injuries to her daughter Leanne who was a passenger in the car. Also killed in the accident was Ms. Rosanna

Potts who was then the girlfriend of the appellant and was a passenger in the vehicle being driven by him. When gardaí spoke to Mr.

O’Donovan after the collision, he said that he and Ms. Potts were arguing at the time of the collision and he claimed that she hit him a

couple of times and that she pulled his hood and that the next thing he remembers is regaining consciousness.

3. A significant feature of the trial was evidence from two experts, Garda Rachel Murdiff, a forensic road collision investigator and Mr.

Colin Glynn, a consultant forensic engineer, who gave evidence on behalf of the defence. Each engaged in an analysis of the accident

scene and examined photographs, but their conclusions diverged. Their disagreement centred on the presence of tyre marks on a

grass verge. Garda Murdiff thought that these marks came from the Jeep driven by Mr. O’Donovan, while Mr. Glynn felt that other

vehicles may have travelled over the grass verge. This disagreement in turn contributed to a difference of opinion as to where control

of the Mitsubishi Pajero was lost. Mr. Glynn felt that the Jeep must have braked, while Garda Murdiff saw no evidence of any breaking.

Garda Murdiff also felt that striated tyre marks, which she noted as present, were indicative of sudden steering at too high a speed

and she commented that easing back on the accelerator and steering in a controlled manner could have avoided the collision.

4. The sole ground of appeal against conviction rests upon criticism of the trial judge’s charge when dealing with the conflicting

evidence of Garda Murdiff for the prosecution and of Mr. Glynn for the defence. The appellant contends that the charge was

inadequate and that the inadequacy was not addressed despite the raising of requisitions. It is said that there was no adequate

explanation for the jury of the concept of the benefit of the doubt and the relevance of this concept for the jury when considering

the technical evidence given by the expert witness on each side of the case.

5. The trial judge began her charge to the jury on the afternoon of Friday the 30th January, 2015 and then continued her charge on

the following Tuesday morning. On Friday afternoon the trial judge told the jury:-

“If, however, there are two ways of looking at the case and one is consistent with innocence and the other is consistent

with guilt, you must go with the one that is consistent with innocence unless the prosecution has proved its case to your

satisfaction beyond reasonable doubt.”

6. That was the last remark that the judge made to the jury before the weekend break. At an earlier point in her charge on the Friday

afternoon, the judge had said:-

“So, as I say to you, it is proof beyond reasonable doubt so, as I say, such a doubt, if you have such a doubt, must be

based on reason. If you have such a doubt, as I say, a doubt that is based on reason, then the accused gets the benefit

of that doubt and must be acquitted. Equally, ladies and gentlemen, if you have any reasonable doubt then the accused

must be convicted. It is simply your duty to do so.”

7. Following the conclusion of the charge by the judge, the following exchange took place between counsel and the trial judge:

“Counsel The issue then to be resolved between Mr. Glynn and Garda Murdiff in respect of the matter, if this is where the

benefit of the doubt accrues it really should accrue to the defence and I ask you to highlight that where issues occur

that they must side with the defence unless the prosecution proves –

Judge: Yes that is the last thought I left them with last Friday.

Counsel: Yes but -

Judge: But you would like me to leave it at the last thought again today.

Counsel: Yes judge just on that regard judge.

Judge Well Ms. Crowe? [prosecution counsel]

Counsel: I have no difficulty with that, as a matter of fairness.”

8. The jury was then brought back to court and the judge re-charged then. Having dealt with another issue that was the subject of a

requisition she then said:

“. . . and of course just one further matter to highlight for you, as I have already indicated to you, it is for the

prosecution to prove its case to your satisfaction beyond reasonable doubt, so of course if you have such a reasonable

doubt the accused gets the benefit of that doubt. I think I have already indicated that to you last Friday in any event.”

9. When the jury was sent away again, defence counsel then said:-

“Counsel: I was hoping that the Court might emphasise a little bit more in respect of the reasonable doubt and the benefit

accruing between vis-à-vis Mr. Colin Glynn’s evidence and Garda Murdiff’s evidence, that the Court might emphasise that

to be a prime example of where an issue arises and it is up to the jury to decide that the benefit of the doubt must

attach to the defence.”

10. To this the judge responded:-

“Well it applies to all of the evidence Mr. Colgan [defence counsel].

Counsel: It does, but the Court left it in such a way that where they have an issue and they have a concern it is up to

them to resolve it, but they must resolve it on the basis that the benefit accrues to the accused person and in the

particular instance in this particular case where the evidence was called by the defence and the defence don’t have to

enter into the fray or don’t have to be involved in any prosecution case, but having in this particular instance obtained

the services of a forensic expert themselves, that where issues are resolved, that evidence has some priority over, I

suppose, the evidence of the prosecution or some – particularly where the benefit of the doubt occurs or accrues in

respect of it."

11. The judge made clear that she was not going to return to the issue once more.

12. In the course of oral submissions, counsel very properly acknowledged that he has no criticism of what was said to the jury on

Friday, but he would have wished that the trial judge would have repeated it on the Tuesday morning. In the view of the Court, while

the defence might have liked it if the judge repeated her remarks, they had no entitlement to such a repetition. Moreover, the Court

is firmly of the view that since the only real conflict of evidence in the case was that between Garda Murdiff and Mr. Glynn, when the

judge told the jury that they had to be satisfied beyond reasonable doubt and that if there were two ways of looking at the case and

one was consistent with innocence and the other with guilt, they had to go with the one consistent with innocence; that instruction

could only have been understood as being referable to the conflict between the two experts.

13. It should be stated that while we are satisfied that the trial judge’s formulation of the rule was adequate and sufficient for the

purposes of this trial, the more traditional, and somewhat more precise, formulation of the rule is to the effect that if two views on

any part of the case are open on the evidence, the jury should adopt the one that is favourable to the accused unless they are

satisfied beyond reasonable doubt that the other one is correct. The qualifier is important lest the jury be left with the erroneous

view that simply because two views are possible in respect of some part of the case they must automatically, and without applying

their critical faculties to the controversy, adopt the one favourable to the accused. That is not the case. It is only where, having

considered and critically analysed the conflicting evidence, they are unable to resolve the conflict and find that they are not satisfied

beyond reasonable doubt as to the correctness of the view unfavourable to the accused, that they must then adopt the alternative

view.

14. In circumstances where we have concluded that that the judge’s charge was in fact adequate and sufficient, the appeal against

conviction must fail.

15. The Court turns now to the question of sentence.

16. The sentence hearing took place on the 23rd February, 2015. The Court reviewed the background facts and was reminded of the

enormity of the tragedy that had occurred. The sentencing judge particularly noted the death of Ms. Theresa Kiely, a married woman

in her 40s and the mother of two children (including her daughter Leanne who was celebrating her sixteenth birthday and who herself

sustained significant injuries) and the death also of Ms. Rosanna Potts, a young woman of 22 years of age and the mother of a five

year old son.

17. In terms of the background and personal circumstances of the appellant, the Court was told that his date of birth was the 12th

December, 1988, that he was a single man and a carpenter. He had a seven year old daughter from a previous relationship whom he

supported and he was the main carer for his mother. He had nine previous convictions which included a s. 4 Theft offence and

offences under the Misuse of Drugs Act, including a s. 15 offence for which he received a three year suspended sentence. The Court

was told that he had a previous conviction for dangerous driving for an offence that had occurred on the 25th November, 2014, some

two months earlier than the accident, the subject matter of this case. The Court sought details in relation to that and was told it was

a two car accident which had involved the appellant driving through a stop sign at a junction and had led to the hospitalisation of the

driver of the other car who fortunately made a good recovery. The Court heard that Mr. O’Donovan himself had suffered injuries in the

accident of the 27th December, 2011, including a broken right leg, a broken right arm and two fractured vertebrae. There were a

number of testimonials, including reports from former employers indicating that he had a good work history.

18. The judge decided to take time to consider the matter and put the sentence hearing back for a week.

19. Having reviewed the background facts, the Court commented that in determining sentence in this matter, the Court was obliged

to have regard to both the aggravating and mitigating factors in the case. She then listed the aggravating factors as follows:

1. The tragic death of Mrs. Kiely, a 49 year old married woman and mother of two young children;

2. The tragic death of Ms. Potts who had just turned 22 years of age and who was also a young mother of a five year old

child;

3. The devastation their untimely deaths has brought to their extended family and friends;

4. The severe injuries sustained by Ms. Leanne Kiely, daughter of the late Mrs. Kiely;

5. The accused’s previous convictions and in particular his previous conviction for dangerous driving which after inquiry by

the Court into the details thereof, it emerged that (a) this offence was committed a mere two months prior to this

offence and (b) it consisted of the accused driving through a stop sign and colliding with another vehicle, resulting in the

hospitalisation of that driver with spinal injuries. It is somewhat incredible that a mere two months later the accused is

engaged in grossly negligent driving which caused enormous tragedy, causing two fatalities and indeed, the incumbent

distress and devastation for the families and friends of both Mrs. Kiely and Ms. Potts

6. The fact that the nature of the defence was such that the accused sought to attribute sole blame for the accident on the

deceased, Ms. Potts, which this Court finds utterly reprehensible taking account of the following factors.

20. The Court then concluded its remarks by saying that in the circumstances, the Court could only conclude that the offending was

at the higher end of the scale, having regard to the scant regard that the accused had had for the health and safety of other road

users, and sentenced him to seven years imprisonment and disqualified him from driving for 30 years.

21. In the course of written and oral submissions, the appellant says that there was an inappropriate emphasis on the appellant’s

account of events and the nature of his defence, that the sentence was out of line with other sentences in comparable cases, and

that there was an inappropriate emphasis on the previous conviction.

Comment

22. In the case of the DPP v. Ryan [2014] IECCA 11, the Court of Criminal Appeal per Clarke J. had commented as follows:-

“It has been said many times that the proper approach to sentencing requires both a consideration of the gravity of the

offence (including the level of culpability of the accused) and the circumstances of the offender. However, in addition, it

is important that the courts strive to maintain, notwithstanding that complexity, a level of consistency so that, in at least

a general way, like cases are treated in a similar fashion.

Because of the broad range of factors which can properly be taken into account in assessing the gravity of the offence,

the culpability of the offender and the individual circumstances of the accused, it will rarely be possible to engage in a

direct comparison between one case and the next. However, that does not mean that the courts could not, and in the

view of this Court should not, attempt to maintain a broad level of consistency.”

23. Junior counsel for the appellant has helpfully engaged in an exercise of assembling comparators and certainly by reference to the

cases assembled it does appear that a sentence of seven years is a particularly and indeed unusually severe one. In response to a

question from the Court, counsel for the DPP accepted it was unusually severe compared with some of those listed. In our view, this

was a bad case and clearly required a substantial sentence. However, we believe that the judge erred in imposing a seven year

sentence as that was unduly severe. There is a further point which concerns this Court. We cannot agree with the trial judge that

the fact that the defence involved putting blame on another, in this case the late Ms. Potts, was an aggravating factor and one to

be regarded as reprehensible. The Court accepts that there may be situations where how a defence is conducted can amount to an

aggravating factor. However, in this case it is of some note that the first exchanges that the appellant had with a member of the

gardaí in the immediate aftermath of the accident saw him referring to the fact that prior to the accident he and his girlfriend were

quarrelling. In those circumstances he had to be free to raise that circumstance as part of his defence. The Court regards the

suggestion that doing so amounted to an aggravating factor as an error in principle. Accordingly, the Court will quash the sentence

imposed in the Circuit Court and in accordance with the established jurisprudence of the Court now proceeds to re-sentence.

24. The court takes as its starting point that, as it has already indicated, this was a very serious case, involving two fatalities which

have left two families devastated. It is also the case that there is a highly relevant previous conviction and the appellant’s other

convictions while less directly in point do mean that unlike in some dangerous driving cases the appellant is not in a position to make

the case that he was a person of previous impeccable character and that the matter before the court was his sole transgression.

25. In the court’s view the case merits a sentence of five years imprisonment. However, in order to incentivise rehabilitation the court

will suspend the final twelve months of the sentence.