Court of Appeal reduces sentence of drunk driver convicted of causing death by dangerous driving

About this case:

• Judgment:
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The Court of Appeal found that the sentencing judge was not objective in his decision, and had failed to properly take into account the mitigating factors presented on behalf of the driver. Accordingly, the Court of Appeal reduced the man’s sentence by 18 months.

Background

A four-year-old boy, Ciarán Treacy, was killed, and his mother, Gillian Treacy, was very seriously injured as a result of Mr Finbarr O’Rourke’s reckless behaviour in driving his car having consumed a large amount of alcohol.

In November 2015 Mr O’Rourke was sentenced to seven and a half years imprisonment – he pleaded guilty and was convicted of one count of dangerous driving causing death or serious bodily harm, contrary to s. 53(1) and s. 53(2) of the Road Traffic Act 1961 as substituted by s. 4 of the Road Traffic (No. 2) Act 2011. Driving a mechanically propelled vehicle while exceeding alcohol limits contrary to s. 4(3) of the Road Traffic Act 2010 was taken into consideration; and he was also disqualified from holding a driving licence for twenty years.

Justice Mahon acknowledged that while there was no suggestion Mr O’Rourke planned to drive under the influence of alcohol for any great length of time beforehand, “there was premeditation in the sense that, having consumed a great deal of alcohol, he made the conscious decision to leave the public house, walk to his car and then drive for some time before the collision occurred”.

Furthermore, the fact that Mr O’Rourke walked away from the scene of the accident in circumstances where he was aware that someone had probably died in the collision, and in circumstances where he must have been aware that Mrs. Treacy was severely injured were aggravating factors.

In terms of mitigating factors in Mr O’Rourke’s favour: he co-operated with the Gardaí; pleaded guilty at a relatively early stage; and exhibited “genuine” remorse. Justice Mahon emphasised that “although almost insignificant in comparison to the devastating and life long trauma visited on the victims in this accident, Mr O’Rourke will himself have to live with the awful guilt… for the rest of his lifetime”.

The maximum sentence for the offence in respect of which Mr O’Rourke pleaded guilty is ten years imprisonment. Acknowledging that, the sentencing judge “considered the gravity of the case and placed it close to the top of the upper end of the scale, if not at the top, and proceeded to identify the appropriate sentence at nine years imprisonment, before discounting for mitigating factors”.

Discussion

Counsel on behalf of Mr O’Rourke argued that the sentence of seven and a half years was too severe, and that “taking the mitigating factors as a whole insufficient weight was attached to them which reduced the amount of credit the appellant should have received”. Further, it was submitted “that the emphasis, attention and weight placed on the Victim Impact Statement sentencing judgment was disproportionate and objectively unfair” to Mr O’Rourke.

In DPP v. Casey IECA 199 and IECA 278, the sentence imposed was one of five years with the final twelve months suspended. That case involved one fatality and another passenger suffering very serious injuries and being left a paraplegic.

In his judgement, Justice Mahon explored the sentencing considerations in DPP v. Connors IECCA 163; DPP v. Shovelin IECCA 44; and a further six cases which were decided by the Court of Criminal Appeal in which sentences of less than five years were imposed.

In DPP v. M 3 I.R. 306, Justice Denham stated: “Sentencing is a complex matter in which principles, sometimes being in conflict, must be considered as part of the total situation. Thus, while on the one hand a grave crime should be reflected by a long sentence, attention must also be paid to individual factors, which include remorse and rehabilitation, often expressed inter alia in a plea of guilty, which in principle reduces the sentence.

The Court was satisfied that there was an error of principle on the part of the learned sentencing judge in placing the headline sentence at nine years, (having a regard to the fact that the maximum sentence for this offence is ten years), primarily because of the absence of evidence of a prolonged period of dangerous driving or significantly excessive speed. .

Conclusion

While upholding the driving disqualification, the Court re-sentenced Mr O’Rourke with due regard to the mitigating factors properly identified by the sentencing judge, and the many strong testimonials submitted on behalf of Mr O’Rourke.

As recognition of Mr O’Rourke’s “genuine remorse, his plea of guilty, and to incentivise rehabilitation”; the three-judge Court of Appeal imposed a sentence of eight years, with the final two years suspending – meaning that the term of Mr O’Rourke’s imprisonment was reduced by 18 months.