Irish Court of Appeal
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URL: http://www.bailii.org/ie/cases/IECA/2017/CA240.html
Cite as: [2017] IECA 240
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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions -v- Walsh [2017] IECA 240 (27 July 2017) URL: http://www.bailii.org/ie/cases/IECA/2017/CA240.html Cite as: [2017] IECA 240 |
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Judgment
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THE COURT OF APPEAL Birmingham J. Edwards J. Hedigan J. 4/17 The People at the Suit of the Director of Public Prosecutions Respondent V
Timothy Walsh Appellant JUDGMENT of the Court delivered on the 27th day of July 2017 by Mr. Justice Hedigan 1. This is an appeal against severity of sentence. The appellant entered a guilty plea, on the 4th July, 2014, to the offence of dangerous driving causing serious bodily harm contrary to s. 53(1) of the Road Traffic Act 1961 as substituted by s. 4 of the Road Traffic (No. 2) Act 2011. In Cork Circuit Criminal Court on the 30th July, 2014, he was sentenced to four years imprisonment with the final year suspended and he was disqualified from driving for 15 years. The custodial sentence was served in Cork Prison and Shelton Abbey and he was granted early release on the 13th January, 2016, on the basis of good behaviour and engagement with services. The appeal herein is only in respect of the 15 years disqualification. 2. This appeal was brought outside of time but leave was granted by this Court on the 6th March, 2017. The enlargement application was based on the fact the appellant was 49 years old upon entering prison for the first time and he was in shock, poor mental health and very stressed at the time of his sentencing. He focused on the imprisonment rather than the disqualification. The circumstances of the offence 4. On the 4th June, 2013, the tractor unit and semi-trailer were found to be dangerously defective at a DOE test. The vehicle failed on 70 grounds including critical defects involving brakes, lights and mirrors. The defects had not been addressed when the accident occurred. Particularly, the rear side mirror was cracked, rendering it useless. This mirror was the one that should have been used by the appellant to observe whether he was past the cyclist. 5. The appellant stayed on the scene and cooperated with the investigation. He pleaded at the earliest opportunity. Garda O’Leary accepted that he was remorseful. 6. The injured party, Mr. O’Driscoll, suffered life threatening injuries. He has had extensive medical treatment, spent a considerable period of time in hospital and was still in the National Rehabilitation Hospital when he wrote his victim impact statement. He was in a wheelchair on the sentencing date. He also suffered severe psychological injuries. He was in intensive care for four months, the first month of which he was in an induced coma. He had a fractured pelvis, two broken hips, legs and ankles, a minor head and shoulder injury, liver and kidney failure, bowel and bladder damage and a severed spinal cord. He is confined to a wheelchair. At the time of sentencing he was reliant on a colostomy bag and a catheter and did not know if or when he would be able to live without them. He has severe ongoing pain. It has immensely impacted every aspect of his life. His victim impact statement also noted that his spinal cord injury shortens life expectancy by 15 to 30 years. The appellant’s personal circumstances 8. Upon his release the effect of the disqualification became apparent. He lives in a remote area of Cork and works in Cork harbour. He has to rely on lifts as the public transport links are poor. He often has to leave home very early and returns very late. The ban has had a more pronounced effect on him than it would if he were living in an urban area. It has also affected his employment prospects in the future. 9. The appellant is currently 52 years old and the ban effectively disqualifies him from driving for the rest of his working life or a large proportion thereof. 10. He has nine previous convictions, all for road traffic offences. The most relevant one was on the 4th September, 2008, for careless driving for which he was fined €400. A month after the incident the subject matter of this appeal the appellant was stopped by Gardaiì one kilometre from the locus of the accident and subsequently convicted for no certificate of roadworthiness in relation to the tractor unit and the trailer and failure to secure the load. Sentence Appellant’s submissions 13. The second ground is that s. 26 of the Road Traffic Act 1961, as amended, provides on conviction on indictment for a s. 53 offence for a consequential disqualification for the first offence of not less than four years. The Court was referred to s. 26(3), as amended, where it is stated that the disqualification shall operate unless there is a special reason in the particular case. He argues there is such a special reason in his case. It must be noted that at the hearing of the appeal counsel for the appellant focussed more upon the overall length of disqualification rather than the four year consequential provision. 14. In The Director of Public Prosecutions v. Skillington [2016] IECA 289 this Court considered the question of whether a Circuit Court judge had discretion not to disqualify a person where it was said it would impair their or any other person’s livelihood. Birmingham J., at paras. 14 and 15, confirmed that such a discretion did exist where there are special circumstances and that while “[d]ifficulties of an employment nature will, of themselves and in isolation rarely, if ever, amount to special reasons the question posed should be answered Yes”. The circumstances of that case did not amount to a special reason. 15. The appellant submits that in the instant case the employment difficulties are not the sole focus of his application and that there are special reasons for reducing the ban below four years. It is submitted that one of the factors is his psychiatric difficulties. It was not the appellant’s wish to have these referred to in open court during sentencing but the report was handed in. 16. It is submitted that the sentencing judge did not have any or any proper regard to the appellant’s rehabilitation. It is submitted that if he loses his employment due to the ban this will have an adverse impact on his mental health. The sentencing judge compared the ban for someone living in Glanworth as tantamount to “an ongoing prison sentence”. While the judge took the appellant’s age as an aggravating factor he does not appear to have considered the effect on his post release work life of such a long ban at the appellant’s age. 17. The Court is referred to The People (DPP) v. Coleman [2017] IECA 40 where this Court considered an undue leniency appeal following a sentence of two and a half years and disqualification of 15 years for the offence of dangerous driving causing death. In that case the sentence was increased to six years with the final two years and nine months suspended. The ban was not altered. It is submitted that that case had many more aggravating factors than the instant case. In Coleman, the appellant had been driving very dangerously prior to the accident and left the scene. He had fifteen previous convictions, eight were for driving offences arising from a single incident. He had no previous convictions for dangerous driving. He was disqualified for six years at the time of the offence. He never held a licence. He had been disqualified on three separate occasions since 2010. 18. It is submitted that the 15 years disqualification is excessive and that a “special reason” exists which would justify the Court lifting the balance of the disqualification order. Respondent’s submissions 20. The respondent referred the Court to the caselaw on s. 53. and in particular, The People (DPP) v. Casey [2015] IECA 199 and The People (DPP) v. Casey (No. 2) [2015] IECA 278 where the Court reduced the custodial sentence but left the 30 year disqualification in place. That case was aggravated by the catastrophic injuries of the passengers one of whom died and another was left quadriplegic, by the fact that the appellant’s blood alcohol level was four times above the permitted level and his excessive speed. The mitigation was his plea of guilty, remorse, cooperation and his excellent work record and general good character. The disqualification was appealed on the grounds that the sentencing judge failed to adequately regard rehabilitation and the appellant’s employment prospects as he worked in plant hire. In refusing to disturb the order the Court noted it may impact his employment prospects and that this could adversely affect his rehabilitation. The Court did note that in light of this and other evidence he should be given further credit and suspended the final 12 months of his sentence which was reduced from seven to five years. 21. The Court is also referred to The People (DPP) v. Sheedy [2000] 2 I.R. 184 where the Court of Criminal Appeal affirmed a 12 year ban while acknowledging the detrimental effect it would have on his employment prospects. That case involved the death of one person and injury to others. The Court classed it as a “medium band of this offence”. The aggravating factors were the death, the course of dangerous driving, his speed, alcohol level and that it was a new unfamiliar car. The mitigation was his guilty plea, no previous convictions, remorse, helpful attitude, good working record and that he would be affected into the future by the incident, conviction and sentence. His prison sentence was reduced from four to three years but the disqualification of 12 years was affirmed. 22. In The Director of Public Prosecutions v. O’Rourke [2016] IECA 299 the incident involved the death of a young boy and the serious injury of his mother. This Court changed the custodial sentence from seven and a half years to eight years with the final two suspended. The 20 year disqualification was re-imposed. The aggravating factors were the devastating effects on the victims, the appellant’s high level of intoxication, extremely dangerous driving, leaving the scene, dishonesty about the amount he drank and not fully cooperating. The mitigating factors were his plea, which was somewhat neutralised, an acknowledgment he was the driver, remorse to some extent evidenced by his PTSD, his taking steps post-accident to stop drinking, his good employment history, his being a devoted father, testimonials on his behalf and the probation report which put him at a low risk of reoffending. 23. In The People (DPP) v. Shovelin [2009] IECCA 44 the Court upheld a life ban from driving but reduced the sentences for dangerous driving causing death and dangerous driving causing serious harm from seven and half years to five years and six years to four years, respectively. He had numerous previous road traffic convictions. He was erratically driving at high speed for 30 to 40 minutes and on the wrong side of the road. He crashed into a car travelling in the opposite direction resulting in the death of the passenger in his car and serious injury to the driver of the other car. All these and that it was a new unfamiliar car were considered aggravating factors. There were no mitigating factors. It was held that the sentencing judge unduly focused on the appellant’s lack of remorse and insistence on contesting the case. 24. In The People (DPP) v. Handley [2017] IECA 34 where, it was accepted that the appellant must have fallen asleep when he veered suddenly and struck a mother and child resulting in her death and the child being significantly injured, this Court suspended the remainder of his two year sentence. At that point, he had served about eight months. While not considered in full as the appeal focused on the sentence, the Court found the ten year disqualification justified but took it into account as an element of the punishment the appellant had received and noted it was a severe penalty for a person in his mid-sixties. It was noted that his culpability was less than in other cases involving alcohol or excessive speed or prior dangerous driving. He had no previous road traffic convictions. The aggravating factor was driver fatigue. However, the common indicators of this such as late night driving or driving over long distances were not present. 25. The respondent submits that it does not dispute that the disqualification will have a serious and detrimental impact on the appellant’s life. The sentencing judge had the psychiatric report. He had regard to its contents and the appellant’s personal circumstances. The judge was aware of the effect the ban would have on the appellant and his employment prospects. It was felt that 15 years was necessary in light of the seriousness of the dangerous driving, the catastrophic consequences and the aggravating factors. It is submitted that this was the correct approach. It is submitted that the bans in Casey (No. 2) and Sheedy were upheld even though they were acknowledged to impact employment prospects and rehabilitation in the former case. 26. It is submitted that the appellant’s personal circumstances including his employment prospects and rehabilitation is one factor among many to be considered by a sentencing judge. The judge considered the appellant’s mental health and the effect of disqualification but was also obliged to have regard to the injuries suffered and the other aggravating factors many of which have a direct bearing on the appellant’s fitness to drive. The injured party suffered devastating and life-changing injuries. 27. The respondent submits that the sequence of offending constitutes clear evidence of the appellant’s unfitness to drive. He was driving a large vehicle with defects that he was aware of and failed to remedy and attempted a hazardous manoeuvre which caused the collision. Even after the incident the appellant continued driving without certificates of roadworthiness and with an unsafely loaded trailer. These are matters to which the sentencing judge was obliged to have regard. His personal circumstances cannot overbear these considerations. It is submitted that even considering his circumstances the combination of his actions, their consequences and his overall attitude merited a 15 year disqualification order. 28. The Court is referred to para. 12 of Skillington where it was noted in relation to hardship to an appellant that such cases “would be truly exceptional”. It is submitted that the appellant does not point to any special reason relating to the offence alone or in combination with his personal hardship which would justify the Court reducing the ban below the statutory minimum. Psychiatric difficulties are an unfortunate consequence for persons convicted of these offences as a result of the incident and time spent in prison and the consequences of disqualification. While unfortunate it is not an exceptional circumstance or special reason. It is submitted that the Court could not have intended its findings in Skillington to be extended to a case such as this. 29. It is submitted that Coleman is of limited assistance as the disqualification was not appealed and only addressed in the last sentence of the judgment where it is stated that the ban remains in place. Further, while it did contain aggravating factors which are not present in the instant case there were also exceptional mitigating factors set out at paras. 26 to 29 of the Court’s judgment. These include, remorse, an early guilty plea, no previous convictions for dangerous driving, excellent probation report and a letter from his mother that he returned to Dublin due to her illness. He attended Mountjoy psychology service and completed a level 3 crime awareness programme in the education centre. He earned a food safety certificate and one for completing the Pacific Institute Steps to Excellence Programme. There was also an excellent prison governor’s report noting he had no disciplinary reports or issues with staff. He worked in the prison kitchen. 30. It is submitted that there are aggravating factors in the present case which were not present in Coleman. The appellant has a previous careless driving conviction. Mr. Coleman was driving a Volkswagen Golf while the appellant was driving a 42 tonne vehicle and trailer which he knew were dangerously unroadworthy. A higher degree of care was to be expected of him in these circumstances. In the aftermath of the accident he failed to remedy the defects and received further convictions. These aggravating factors are directly applicable to the question of fitness to drive. As far as it is relevant, the sentencing judge was entitled to impose the same disqualification as was imposed in Coleman. 31. It is submitted that in light of the judgments referred to above the disqualification order was not disproportionate or excessive. It was noted that in the 17 years since Sheedy was decided, sentences and disqualification orders for dangerous driving causing death and serious harm have steadily increased. The offending, the consequences, the aggravating and mitigating factors in each of the above cases are different. It is submitted that the sentencing judge correctly measured the disqualification of 15 years which falls between the periods imposed in Casey, O’Rourke and Shovelin at one end of the scale and Handley at the other. Unlike the appellants in Casey and O’Rourke who received longer disqualifications the appellant herein had multiple previous convictions for road traffic offences. Unlike any of the cases mentioned the appellant was driving a very large and heavily loaded commercial vehicle which he knew was dangerously unroadworthy. 32. It is submitted that it would not be appropriate to reduce the period to ten years like in Handley as that case did not have the aggravating factors present here and in many other cases. 33. When compared with the cases mentioned above and taking into account the offence, the consequences and aggravating factors the 15 years disqualification order was neither disproportionate nor excessive. Decision 35. Section 26 of the Road Traffic Act 1961, as amended, provides that where a person is convicted on indictment of an offence contrary to s. 53 of the Road Traffic Act 1961, as amended, they must receive a consequential disqualification order of not less than four years in the case of a first offence under the section concerned. However, s. 26(3) of the Road Traffic Act 1961, as amended, provides that the consequential disqualification order:
37. The nature of a disqualification order was discussed by Walsh J. in Conroy at pp. 441 to 442 where he stated:
One must not lose sight, however, of the real nature of the disqualification order which is that it is essentially a finding of unfitness of the person concerned to hold a driving licence. Apart from the statutory minimum which is imposed in certain cases, this is a matter which must be determined by the Court in the light of evidence which it hears on this aspect of the case and in the light of that evidence it may determine what period of disqualification will be appropriate. A motor car, if not driven properly, is a potential danger not merely to the driver himself but to all other persons using the highway. It is obvious that the protection of the common good requires that the right to drive a motor car cannot be unrestricted. The right may therefore be lost if a Court, on a consideration of the relevant facts and materials, determines that the person concerned, by reason of his general recklessness or thoughtlessness or his propensity to drink, or by reason of disease or other disability or his abuse of the right by exercising it in the furtherance of criminal activities, is unfit to exercise the right to drive a motor car. Such disqualification is not a punishment notwithstanding that the consequence of such finding of unfitness might be both socially and economically serious for the person concerned. The passage in the judgment of The State of Minnesota v. Moseng [254 Minn. 263], already referred to, correctly indicates that in modern society a motor vehicle has become a necessity for many people. It is also correct, as was observed in that judgment, that if a person is unreasonably kept off the highway one might say that his right to liberty is curtailed. The operative word, however, is “unreasonably” and it can scarcely be disputed that it would not be unreasonable to keep off the highway a person who has shown himself to be and has been proved to be unfit to be on it. As is provided in s. 28 of the Act, that may be quite clearly established where there is no question of conviction at all even though the results may be just as severe for the person concerned as they would be if he had been disqualified under ss. 26 or 27 following a conviction. Undoubtedly disqualification may have a deterrent quality but that does not make it a punishment. It is a regulation of the exercise of a statutory right in the interest of public order and safety. This view is also borne out by the provisions of s. 29 which provide machinery for the removal of consequential and ancillary disqualification orders. The machinery is also in the form of a judicial act which includes a judicial consideration of the character of the applicant, his conduct since his conviction, the nature of the offence and such other matters as may appear to the Court to be relevant. This is clearly designed to ascertain whether the applicant has ceased to be unfit to hold a driving licence. Though it may have punitive consequences disqualification cannot be regarded as a punishment in the sense in which that term is used in considering the gravity of an offence by reference to the punishment it may attract upon conviction such as imprisonment or a fine, but rather is a finding of unfitness.”
13. If the power to disqualify could be exercised in any wider fashion, then it would cease to retain the essential quality of a determination of fitness to drive. Such a broader interpretation would alter the general character of the disqualification power so that it would thereby evolve from a regulation of the fitness to drive into a form of primary punishment. This would have significant implications throughout the wider criminal justice system and would once again call into question the constitutionality of legislation providing for the summary disposition of drunk driving offences.”
41. Turning to this case, in relation to the consequential disqualification of not less than four years, is there a “special reason” why it should not be applied. The appellant argues that his employment difficulties are not the sole reason. There are also his psychiatric difficulties referred to in the psychiatric report. However, in submissions during the hearing of this appeal, his counsel mostly focused on the difficulty of his getting to and from work because of the fact that he lives in an area quite remote from where he works. There is little in the way of public transport available to him. In Skillington, this Court considered the almost identical provision found at s. 65(5) (b) of the Road Traffic Act 2010 in relation to a first conviction for driving with no insurance. This was a consultative case stated which posed the following question:
43. The 11 years imposed by way of an ancillary disqualification must be considered in the light of the principle identified in Conroy and Sweeney. In the circumstances of this case and this offender, is he unfit to drive for the period specified? Although not a primary punishment, the disqualification clearly has punitive consequences for the appellant. The Court should therefore apply the totality principle well established by this Court as required in the sentencing process. It is thus the full period of 15 years disqualification that falls to be considered. In the light of the comments of Walsh J. in Conroy at pp. 441 and 442 cited above, the Court should consider whether the general recklessness or thoughtlessness of the appellant is such as makes him unfit to drive. Irresponsibility is clearly encompassed in Walsh J.’s remarks. Is it reasonable to remove his right to drive on the highway for such a lengthy period? 44. A young driver found to have acted recklessly, irresponsibly or thoughtlessly may well be considered unfit to drive until he reaches a certain level of greater maturity. A court might reasonably consider that keeping him off the road for a particular limited number of years may be necessary in the public interest. It may reasonably be hoped that both the fact of the disqualification itself and the passing of some years is likely to mature such a young driver. Different considerations must apply in the case of a man of almost 50 years, as is the case here. It might well be that the impact of such a horrific accident as occurred here could have such an effect as would bring someone such as the appellant to face up to the recklessness and irresponsibility shown by him in driving a 42 tonne lorry and trailer that was so full of defects as to render it unroadworthy. Such, however, is not the case here. Only one month after the accident, which caused such devastating injury to Mr. O’Driscoll, the appellant was stopped just one kilometre from the scene of the accident driving the same lorry still in its unroadworthy condition. Such a level of irresponsibility and recklessness is literally breathtaking. That it should be found in a professional driver of almost 50 years of age is profoundly disturbing. It might well have led the learned sentencing judge to consider whether such a person should ever again be allowed to drive on the highway. However, a lifetime disqualification was not raised in the proceedings before the Circuit Court or the hearing of this appeal and the Court will refrain from going beyond the current period of disqualification of 15 years. The court will not however decrease the period imposed. 45. At its request, this Court was furnished with certain submissions in relation to the possibility of restricting the appellant to a Category B licence i.e. one covering a motor car capable of carrying up to eight persons in addition to the driver. The Court was told that the appellant was prepared, if the Court considered it appropriate, to give an undertaking not to apply for any other category of licence. The Court was referred to Art. 54(1) of the Road Traffic (Licensing of Drivers) Regulations 1999 (S.I. No. 352 of1999) which dealt with partial disqualification from holding a licence of certain categories. The jurisdiction to make an order of partial disqualification is however questioned by the learned author in Pierse, Road Traffic Law, 3rd Ed., (Dublin, 2004) at [3.9.8.9] on p. 347. Referring to these provisions, it is stated therein that:
47. The appeal must be dismissed. |