Court of Appeal allows partial appeal, reducing suspended sentence term from five to two years for dangerous driving causing death.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

194/15

The People at the Suit of the Director of Public Prosecutions

Respondent

And

Brian McDonagh

Appellant

JUDGMENT of the Court delivered on the 8th day of July 2016, by

Mr. Justice Sheehan

1. This is an appeal against sentence.

2. On the 7th July, 2015, the appellant pleaded guilty at the Circuit Criminal Court in Galway to dangerous driving causing the death of

his friend Thomas McDonagh on the 2nd February, 2014, at Kylemore, Co. Galway. He was sentenced to ten years imprisonment with

the final two years suspended on the usual terms for a period of five years following his release.

3. The appellant now submits that the sentence imposed was in all the circumstances in excess of the range of sentences normally

imposed for this offence and further that the sentencing judge erred in law in failing to take into account and/or give sufficient weight

to the mitigating factors in the case.

4. The respondent on the other hand concludes that the sentence imposed although lengthy was not manifestly unjust and that the

learned trial judge was proportionate in his approach to sentence.

5. In order to consider these grounds of appeal it is first of all necessary to consider the background to the offence as well as the

trial judge’s summation and the personal circumstances of the appellant.

6. On the evening in question, the appellant was out socialising in different public houses in the Connemara area with a number of his

male friends. He was driving a motor vehicle which he had recently purchased from his girlfriend. They were travelling in the direction

of Recess along the R344 where the speed limit was 80km. The accident took place on a bend and the vehicle went into a ditch. At

the time the deceased man was sitting on the lap of a friend in the front passenger seat. They were on their way home when the

accident occurred.

7. The garda evidence was that the appellant had been travelling at speeds of up to 80km per hour cutting corners and coming to

junctions too quickly where he had to use the handbrake to slow down.

8. At the accident location, the speed limit was 80km per hour. The appellant lost control of the vehicle at an open bend and

travelled 34mtrs into the drain, which at the time had five or six feet of water.

9. The deceased was the only person injured. The appellant and his friends pulled the deceased from the vehicle by his belt and tried

to resuscitate him, but failed. The cause of death was asphyxia with crush injuries and drowning being a contributory factor.

10. The appellant was abusive to the gardaí at the scene. He later admitted driving and having consumed a small amount of alcohol.

Within four hours of the accident his blood alcohol level was 132mlgs per 100 mls of blood.

11. Immediately following this outline of the offence the victim impact reports from the mother, father and brother of the deceased

were read to the court. They were present in court at the time that these reports were read. The court then heard further evidence

from the prosecuting garda, a plea in mitigation and immediately proceeded to sentence.

Personal circumstances

12. The personal circumstances of the appellant are that at the time of sentence he was living at home, but involved in a long term

relationship with a girlfriend who is the mother of their three year old child. He lives with his mother, stepfather and a brother and

sister. He is a mechanic by occupation, but at the time of sentence he had lost his job. He was 23 years old at the time. The

appellant had fourteen previous convictions. On the 24th April, 2014, he was convicted of six offences which all occurred on the 16th

June, 2013 and arose out of a single driving event which resulted in the following convictions:

1. No road tax.

2. No insurance.

3. Failing to produce insurance.

4. No licence.

5. Failing to produce licence

6. Driving with excess alcohol contrary to s. 4 of the Road Traffic Act 2010.

13. The appellant was disqualified from driving in respect of the no insurance conviction and was also disqualified for the offence of

driving with excess alcohol.

14. He was also convicted that day of two public order offences which had been committed on the 27th December, 2011. On the

15th June, 2011, the appellant was convicted of four offences arising again out of one incident namely, no insurance, failing to

produce insurance, driving without a licence and failing to produce a licence.

15. On the 19th May, 2015, a Derryneagh District Court the appellant was convicted of driving while disqualified and received a

custodial sentence being on bail pending appeal at the time of sentence in this case.

16. Following the accident and significant remorse, he started to drink heavily to numb the pain. He became suicidal, took an

overdose and was admitted to the psychiatric wing of Galway University Hospital where he was observed for over a week. Noting that

the appellant had been brought up by his mother the psychiatric report outlined the extent of the appellant’s remorse and his great

struggle in coping with what he had been responsible for. That report also noted that he had been largely successful in dealing with

his alcohol problem over a six month period, there being only one slip.

17. The sentencing judge made the following remarks:-

“Well it is beyond the shadow of a doubt that this man should not have been behind the wheel of any car that evening.

Not only was he most probably drunk, he was uninsured, he had no driver’s licence was previously and subsequently

disqualified from driving. The car had a bald tyre, no NCT, was overcrowded and on the evidence was being driven at an

excessive speed by any standard. Because of the above, a young man died, drowned actually, drowned in the back of the

car. In spite of this the accused has continued to drive while disqualified and is seen as being at a high risk of

reoffending. There is very little that can be viewed as mitigating the gravity of the offence. The maximum sentence for

this offence is ten years and this particular offence is at the very top of the scale of gravity. So the starting point that I

am working from is a sentence of ten year imprisonment. The accused is entitled to credit for pleading guilty, albeit at a

very late stage when the jury had been empanelled. There are multiple aggravating factors including his previous dreadful

driving record, his subsequent absence of and practical demonstration of remorse and it is difficult to see any real

evidence that there is any hope for rehabilitation from the point of view of this man. I note that the Probation and

Welfare Service consider that he might benefit from a period of probation supervision in order to assist in dealing with his

reported addiction and other medical and perhaps psychiatric issues. Bearing in mind the mitigating and aggravating

factors and balancing them and bearing in mind that rehabilitation is a factor that I must take into account in determining

a proper sentence if rehabilitation is a possibility. What I will do is impose a ten year sentence. I will suspend the final two

years for five years. I will recommend that he receives medical and psychiatric treatment while in custody. In addition I

will disqualify him from riving for 20 years. For driving without insurance, that is a count on the indictment, I will disqualify

him and sentence him to six months imprisonment for no insurance.”

18. Counsel for the appellant relies on a number of authorities in support of his principal submission that this sentence is significantly

out of line with other similar cases. These authorities are DPP v. Casey [2015] IECA 199, DPP v. Stronge [2011] IECCA 79, DPP v.

Cunningham (Unreported, Court of Criminal Appeal, 1st May, 2014), DPP v O’Rourke [2015] IECCA and DPP v. O’Donovan [2016] IECA

192. Counsel for the respondent on the other hand while agreeing that the sentence imposed was a lengthy one nevertheless

maintains that it was not manifestly unjust. In this regard counsel for the respondent points to the aggravating factors in the case as

summarised by the sentencing judge.

19. One authority relied upon by both the appellant and the respondent is that of DPP v. Casey [2015] IECA 199 in which a number of

sentences imposed by the Court of Criminal Appeal in cases involving dangerous driving causing death were reviewed. In the course of

the oral hearing before us neither counsel was able to refer us to a case in which the maximum sentence had been imposed as had

occurred in the present case.

20. In considering the submissions of the parties in light of the sentencing judge’s remarks we note that he did not have the benefit

of having his attention drawn to relative comparators. That said we are satisfied that a sentence of ten years imprisonment is

sufficiently out of line with other similar cases such that we find that the sentence imposed was excessive. We also note that apart

from the fact that the psychiatric report does not appear to have been given proper consideration we do not understand what the

trial judge meant when he said there was no practical demonstration of remorse. This is particularly relevant given the express finding

by the consultant psychiatrist that the appellant had been significantly affected by remorse.

21. We therefore find that the sentencing judge fell into error. Accordingly we allow the appeal and set aside the original sentence.

As is normal in sentencing cases we received confirmation on a contingency basis at the conclusion of the sentence hearing that

since being imprisoned the appellant has been a model prisoner and is in a section of the prison reserved for trusted offenders.

22. We agree with the sentencing judge that there were multiple aggravating factors. This is a bad case and as the sentencing judge

noted:-

“Not only was he most probably drunk, he was uninsured, he had not driver’s licence was previously and subsequently

disqualified from driving. The car had a bald tyre, no NCT, was overcrowded and on the evidence was being driven at an

excessive speed by any standard.”

23. In view of these aggravating factors we are of the view that this case ought to attract a headline sentence of eight years

imprisonment. In the course of his remarks the sentencing judge expressed the view that it was difficult to see any real evidence that

there is any hope for rehabilitation. We take a different view, particularly in light of the psychiatric report which noted not only the

appellant’s remorse, but also a serious effort to abstain from alcohol. The hope expressed in that report is confirmed by the

appellant’s progress while in custody.

24. The following are the principle mitigating factors:-

1. The plea of guilty.

2. The important admissions made by the appellant following his arrest through his solicitor.

3. His undoubted remorse as evidenced by the consultant psychiatrist Dr. O'Sullivan.

4. The progress that he had made regarding his alcohol problem.

5. His relative youth and family circumstances.

6. The progress that he has made since going into prison already being recognised as someone who can be trusted.

25. We also of course note that this conviction and driving disqualification will have serious consequences for the appellant in the

future and will undoubtedly impact on his rehabilitation. At paras. 13-08 to 13-10 in the 2nd Ed of “Sentencing Law and Practice”

Prof. O’Malley reviewed a number of sentences in dangerous driving causing death cases. It would seem from these cases as well as

the other authorities relied on by both parties that even a headline sentence of eight years is highly unusual. Originally the sentencing

judge proposed to suspend the final two years of the original sentence for a period of five years in view of the plea of guilty and in

the hope of incentivising rehabilitation.

26. There were other mitigating factors which the sentencing judge appears to have overlooked. These relate to the admissions he

made, his remorse and progress regarding his alcohol problem. We are also conscious that a significant problem for the rehabilitation of

this appellant will now be the fact that he will be forbidden to drive for 20 years. Given that he will undoubtedly need a lot of

assistance to enable him to reintegrate into society following his sentence, it seems to us that the final two years of this sentence

should be suspended for a period of two years, on the usual terms. We also direct that he be subject to the supervision of the

Probation Service for this two year period in order to ensure that he receives maximum assistance regarding his reintegration into

society when he has served his sentence.