About this case:

• Citation:
  [2023] IECA 29
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Isobel Kennedy

The man had originally been sentenced to three years’ imprisonment with 18 months suspended. However, Ms Justice Isobel Kennedy held that this sentence was too low and amounted to an error of law.

Delivering an ex tempore judgment, the court held that there were significant aggravating factors in the case which differentiated the matter from other comparator cases. In particular, the accused was speeding to avoid gardaí, knew that his vehicle was in a defective condition and was more than twice over the legal drink-drive limit. As such, the sentence was increased to four years, with the final 18 months suspended.

Background

In February 2020, the accused, Mr Michael Welby, collected Róisín Hession in his car for a night out. At approximately 1am, Mr Welby picked up Ms Hession to take her home. The car was observed by gardaí to be driving at speed and an attempt was made to stop the vehicle by activating blue lights and the siren. However, Mr Welby did not stop.

Instead, he sped away in his car. Gardaí lost sight of the vehicle but later came upon a crash on the road. Both occupants were seriously injured. Unfortunately, Ms Hession died at the scene, while Mr Welby was taken to hospital.

A blood sample indicated that the accused had been driving with a blood/alcohol level of 125 milligrams per 100 millilitres of blood. This was more than twice over the legal limit. Further, it transpired that Mr Welby’s car was in a dangerous condition, with bald tyres, a warm shock absorber, and leaking fluid. The accused had also fitted a tinted sticker over his windscreen which was illegal.

The accused was arrested and charged with dangerous driving causing death. He made certain (but not full) admissions to gardaí about driving the vehicle, consuming alcohol and having the vehicle in a dangerous condition.

In sentencing the accused, the trial judge outlined the aggravating and mitigating factors in the case. In mitigation, it was noted inter alia that he was otherwise of good character, had a good work ethic, expressed remorse for his actions, had entered a mid-early plea and visited the scene with the father of the victim.

A five-year headline sentence was nominated and reduced to three years to take account of mitigation. It was necessary to impose a custodial sentence for reasons of general deterrence, but the court suspended the final 18 months of the sentence.

The DPP appealed the decision on the grounds of undue leniency. Specifically, it was said that the gravity of the offence required a harsher sentence and the trial judge departed from the norm in a significant way.

Court of Appeal

The court noted that the DPP relied on several other cases involving dangerous driving causing death, including People (DPP) v Moran [2019] IECA 5 and People (DPP) v Whelan [2020] IECA 350. It was argued that the culpability of the accused was high in the case having regard to the decisions he made (see People (DPP) v Cody [2021] IECA 354).

While mitigation was acknowledged by the DPP, it was held that the effective reduction in custodial sentence was 70 per cent from the headline sentence. This was excessive in the circumstances, it was submitted.

Mr Welby relied on certain comparator cases to argue that his sentence should not be increased, having regard to the sentences in those cases (see People (DPP) v Nestor [2018] IECA 255; Cody).

In determining the appeal, Ms Justice Kennedy stated that the case was a “tragedy” and noted that Ms Hession’s father was also a widower, meaning that he had lost both his wife and his daughter. He was understandably devastated by the case, the court said.

The court repeated the principles governing undue leniency applications contained in DPP v Stronge [2011] IECA 79. It was held that the increase in speed by the accused was a significantly aggravating factor. It was also seriously reckless to drive under the influence in a known defective vehicle which ultimately led to devastating consequences.

The facts in Cody were “quite different” to the present case and served “to underline the limited assistance of comparator cases”. In that case, the accident was due to an overcorrection and there was no issue of increasing speed to avoid gardaí. It also involved an impulsive decision to drive, which was not the case in the present appeal.

Although considerable weight is attached to the discretion of a sentencing judge, the headline sentence was not within the norm for offences of this gravity, the court held. This case was in the upper end of the mid-range of sentence, having regard to the aggravating factors.

In re-sentencing the accused, the court nominated a headline sentence of six years. Taking account of the same mitigating factors outlined by the trial judge, the court held that it was appropriate to reduce the sentence by two years and to suspend the final 18 months.

Conclusion

Accordingly, the court increased the sentence of the accused. The effective sentence was two-and-a-half years’ imprisonment.

The People at the Suit of the Director of Public Prosecutions v. Welby [2023] IECA 29