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Irish Court of Criminal Appeal |
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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Derrick Stronge [2011] IECCA 79 (23 May 2011) URL: http://www.bailii.org/ie/cases/IECCA/2011/C79.html Cite as: [2011] IECCA 79 |
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Judgment Title: DPP -v- Derrick Stronge Composition of Court: McKechnie J., Budd J., Moriarty J. Judgment by: McKechnie J. Status of Judgment: Approved
Outcome: dpp appeal dismissed | ||||||||||
THE COURT OF CRIMINAL APPEAL MCKECHNIE J. BUDD J. MORIARTY J. [282 CJA OF 2010] IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993, AND IN THE MATTER OF THE PEOPLE OF IRELAND (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) PROSECUTOR/APPELLANT AND DERRICK STRONGE ACCUSED/RESPONDENT JUDGMENT of the Court delivered on the 23rd day of May, 2011 This is an application, moved by counsel for the Director of Public Prosecutions (“D.P.P.”) under s. 2 of the Criminal Justice Act 1993, (“the 1993 Act”), whereby the sentence imposed by the learned trial judge is sought to be reviewed on the grounds that in the circumstances presenting, the same was unduly lenient. The background events giving rise to this application are as follows. Mr. Stronge was charged with two offences as appear on the indictment. Count no. 1 was a charge of dangerous driving causing death contrary to s. 53(1), (as amended by s. 51 of the Road Traffic Act 1968) and subs. (2)(a) (as amended by s. 49(1)(f) of the Road Traffic Act 1994 and by s. 18 of the Road Traffic Act 2006) of the Road Traffic Act 1961 (The “1961 Act”). Count no.2 was a charge that on the same occasion he drove a mechanically propelled vehicle whilst under the influence of intoxicating liquor contrary to s. 49(2) and (6)(a) of the Road Traffic Act 1961, as inserted by s. 10 of the Road Traffic Act 1994 (as amended by s. 18 of the Road Traffic Act 2006). On the 28th January, 2010, the respondent pleaded guilty to count no. 1: on that basis the D.P.P. entered a nolle prosecui in respect of count no. 2. The sentencing hearing took place on the 4th November, 2010, after which the learned trial judge, her Honour Judge Buttimer imposed a sentence of two years on count no. 1, suspending the final twelve months of such sentence. She ordered that Mr. Stronge enter into a bond for the suspended period on certain conditions. She directed that he should be disqualified from holding a driving licence for a period of ten years. It is from such sentence that the D.P.P. seeks a review in the within application. The particular facts giving rise to these charges can be stated thus. At about 5.30am on the morning of the 2nd March, 2009, the gardaí were alerted to a single car accident which had occurred at Grangecuffe, Cuffesgrange in Kilkenny. On arrival it was noted that there were three occupants in the car: Mr. Stronge who later admitted to being the driver, Mr. Ryan Fulton who was a front seat passenger and Mr. Patrick McDonagh who was the back seat passenger. As a result of the injuries sustained by him, Mr. McDonagh was pronounced dead at the scene of the accident. By reason of the gardaí's subsequent investigation, including an interview with Mr. Stronge after his arrest on the 8th July, 2009, the following evidence was given by Sergeant O’Meara to the trial judge on the said 4th November, 2010. On the evening prior to this accident both Mr. Stronge and Mr. Fulton had been out drinking. At some point in the night they rang Patrick McDonagh, a friend of the respondent who, unbeknownst to his older brother who was in charge of him, sneaked out of the house and joined up with them. They drove around Kilkenny city for some time and eventually met other cars in the car park of Woodies. In convoy form, they proceeded out the Callan Road. After travelling some distance Mr. Stronge, for reasons evidentially not explained, decided to return and did so in the direction of Kilkenny. Whilst on a straight stretch of road, which had clear markings and signs, and with good weather conditions prevailing, the car which he was driving went out of control. It travelled over onto the opposite side of the road and along a grass margin: it collided rear end with a tree and continued broadside along a boundary concrete wall of a house eventually coming to a stop on the opposite side of the road, by which stage it was semi broadside. Mr. Stronge alleged that, immediately prior to the accident he encountered an animal, either a fox or a rabbit, on the road which caused him to swerve, which in turn led to the accident resulting in the tragic circumstances above outlined. As Mr. Fulton had little or no recollection of the accident the source of this last piece of information was Mr. Stronge himself: the gardaí could neither substantiate nor disprove this assertion. Following a technical examination of the motor vehicle the gardaí were satisfied that it was in fair condition and that there was no evidence of a mechanical failure. Moreover, it was not suggested that excessive speed was in and of itself a factor in the accident. The conclusion of the investigating team was that the same was caused by driver error. An analysis of the driver’s blood alcohol level showed a reading of 99mgs of alcohol per 100mls of blood: the legal limit is 80mg/100mls. It will be 50mgs/100mls when s. 4 of the Road Traffic Act 2010 is commenced. The respondent, who was born on the 12th December, 1990, and who had just turned eighteen at the date of the accident, was a friend of Patrick McDonagh with both families living relatively close to each other. He had what was described as a difficult upbringing, leaving school early. He started drinking and taking drugs also early in life. He offered an apology to the victim’s family through his counsel at the sentencing hearing but not before. It was said that he would have to live with the responsibility for and the consequences of this accident for life. He also suffered from a psychiatric and psychological disorder. Post-traumatic stress symptoms were identified. A custodial sentence, it was said, would be difficult for him. By the date of the hearing he had a number of previous convictions including two public order offences and one of obstructing the gardaí, all which occurred on the 8th March, 2008. At Kilkenny District Court on the 9th December, 2008, he was fined a total of €450.00 in respect of such offences and was ordered to enter into a probation bond. The fourth conviction related to the possession of drugs on the 1st March, 2009, for which, on the 25th March, 2009, he was convicted under s. 3 of the Misuse of Drugs Act 1977, as amended, and fined €200.00. Of most significance however, was the fact that he was charged under s. 49(3) of the Road Traffic Act 1961, as amended with driving a mechanically propelled vehicle while under the influence of intoxicating liquor, on the 13th February, 2009, which was some two weeks approximately prior to the accident which is the subject of these proceedings. He was convicted of this offence on the 6th October, 2009, fined €250.00 and disqualified from holding a driving licence for one year. During the course of the sentencing hearing an issue arose as to whether or not, for an offence of this nature, the law permitted the submission of a victim impact statement. Both counsel agreed that the relevant statutory provision, namely s. 5(1) of the Criminal Justice Act 1993, as substituted by ss. 4, 5 and 6 of the Criminal Procedure Act 2010, did not cover s. 53 of the Road Traffic Act 1961, as amended. However, without strong objection from defence counsel, the D.P.P. served notice of additional evidence which contained the substance of what otherwise would have been disclosed if a victim impact statement was admissible. This was submitted, received and considered by the trial judge. In sentencing, the learned trial judge offered her deep sympathy to the McDonagh family on the tragic circumstances of Patrick’s death. She then went on to consider the aggravating factors which she identified as the presence of alcohol and the existence of previous convictions. On the mitigating side she highlighted the accused’s guilty plea, his co-operation with the gardaí, his apology offered through counsel, his age, the presence of post-traumatic stress and the difficulties which he has encountered since the accident. She observed that his motor vehicle was in reasonable condition and that it was possible there was an animal on the road as he had described. Having so evaluated the evidence and considered the submissions, the judge arrived at the sentence above imposed. In both the Notice grounding the Review Application and in the supporting written submissions made on behalf of the D.P.P., it was alleged that the sentence imposed was unduly lenient within the meaning of s. 2 of the 1993 Act on the following grounds, namely:-
(ii) that the respondent had excessive alcohol in his blood, being 19mgs over the permitted level: that he had five previous convictions: in particular reference was made to the s. 49 conviction, the underlying facts of which occurred on the 13th February, 2009, some two weeks prior to this incident and the s. 3 conviction, which related to events occurring on the 1st March, 2009, that is on the day immediately prior to this offence: that the trial judge did not have sufficient regard for the maximum sentence provided by law: that the sentence did not adequately reflect the element of deterrence, not only in respect of the accused but in relation to other members of the public: and that the sentence was not commensurate with the devastating effect which the death of Patrick McDonagh has had upon his family; see the statement of Ann Winifred McDonagh dated the 15th February, 2010. On behalf of the respondent it was urged that both in her approach and conclusion, the learned trial judge was correct and that she applied well established principles to her sentencing ruling. It was, therefore, inaccurate to describe the sentence as being one of undue leniency. In addition, whilst the aggravating factors were acknowledged, it was submitted that the following mitigating factors were particularly relevant:-
(ii) the accused’s co-operation with the gardaí: (iii) the absence of usual aggravating factors in a case such as this, for example, speed: (iv) the accused’s personal circumstances including his background, upbringing and age: (v) the apology offered through his counsel, which showed remorse for his actions: and (vi) the diagnosis of post-traumatic stress disorder, involving depression and anxiety which necessitates medical treatment. His incarceration will limit his access to this treatment. This application is moved under s. 2 of the Criminal Justice Act 1993, as amended by s. 23 of the Criminal Justice Act 2006, which reads:-
(2) An application under this section shall be made, on notice given to the convicted person, within 28 days or such longer period not exceeding 56 days as the Court may, on the application to it on that behalf determine, this from the day on which the sentence was imposed. (3) On such an application, the Court may either—
(4) Section 6 of the Prosecution of Offences Act, 1974…” The principles which must apply to the sentencing of convicted persons are well known and were stated by Walsh J. in The People (Attorney General) v. O’Driscoll [1972] 1 Frewen 351 at 359 as being:-
From the cases cited at the end of this paragraph, the following principles can be said to apply in an application for review under s. 2 of the 1993 Act. These are:-
(ii) to establish undue leniency it must be proved that the sentence imposed constituted a substantial or gross departure from what would be the appropriate sentence in the circumstances. There must be a clear divergence and discernible difference between the latter and the former: (iii) in the absence of guidelines or specified tariffs for individual offences, such departure will not be established unless the sentence imposed falls outside the ambit or scope of sentence which is within the judge’s discretion to impose: sentencing is not capable of mathematical structuring and the trial judge must have a margin within which to operate: (iv) this task is not enhanced by the application of principles appropriate to an appeal against severity of sentence. The test under s. 2 is not the converse to the test on such appeal: (v) the fact that the appellate court disagrees with the sentence imposed is not sufficient to justify intervention. Nor is the fact that if such court was the trial court a more severe sentence would have been imposed. The function of each court is quite different: on a s. 2 application it is truly one of review and not otherwise: (vi) it is necessary for the divergence between that imposed and that which ought to have been imposed to amount to an error of principle, before intervention is justified: and finally (vii) due and proper regard must be accorded to the trial judge’s reasons for the imposition of sentence, as it is that judge who receives, evaluates and considers at first hand the evidence and submissions so made. We have been referred to a number of cases dealing specifically with the offence of dangerous driving causing death. These have been submitted for the purposes of inviting the Court to cross reference the sentences therein applied to that imposed in this case. Whilst such an exercise is of value, caution must be applied in any such analysis, as inevitably each case will be fact or circumstance specific. Therefore, even with appropriate adjustment, this exercise may not deliver value or utility. Before looking at those cases however it is important to point out that the conviction under discussion in this case is one of dangerous driving causing death, which is a statutory offence created by s. 53 of the 1961 Act, as amended. It is not a homicide conviction even if death has resulted from the driving of a motor vehicle. Both, in terms of what is required to establish a conviction, are totally different: the degree of culpability and insight required for a manslaughter charge is significantly greater and is of a type quite different than that applicable to a charge under s. 53 of the Act of 1961. See The People (Attorney General) v. Dunleavy [1948] I.R. I.R. 95. In Andrews v. D.P.P. [1937] AC 576, Lord Atkin said: “…it is only necessary to consider manslaughter from the point of view of an unintended killing caused by negligence, that is, the omission of a duty to take care. …it is perfectly possible that a man may drive at a speed or in a manner dangerous to the public and cause death and yet not be guilty of manslaughter…” For manslaughter there would have to be evidence that the driver either intended to cause injury or was reckless. Driving dangerously does not amount to an unlawful act for the purposes of manslaughter. In The People (D.P.P). v. Sheedy [2000] 2 I.R. 184, the circumstances of the accident which occurred in March, 1996, were that, the defendant, in a powerful car recently acquired by him, drove at speed both before and into a roundabout, flying into the air for some 70 feet and falling on top of the Ryan’s car killing the driver, Mrs. Ryan, and injuring her four passengers, namely, her husband and three children. Mr. Sheedy’s car carried on and hit another motor vehicle some 20 or 30 yards beyond. In the Court of Criminal Appeal, Denham J. identified the aggravating factors in the case as being, the death of Mrs. Ryan, speed, manner of driving, the consumption of alcohol and the driver’s inexperience with a new motor vehicle. The learned judge listed the mitigating factors as an early plea, the absence of previous convictions, his previous work record and contribution to society, the genuine remorse shown and the apologies offered, the effect of the accident on him and on his future. In the end the court imposed a sentence of 36 months which, in effect, gave a custodial sentence of two years, exactly what the original sentencing judge had in mind. Whilst this case is undoubtedly of importance, perhaps being the first in line of establishing the modern jurisprudence in this area, nonetheless one has to view the sentence imposed in the context of the most unusual, indeed even extraordinary history of this case. For those interested a full reading of the report is essential. In The People (D.P.P.) v. McCormack, (Unreported, Ex-tempore, Court of Criminal Appeal, 27th April, 2006) the accused was convicted by way of plea, of a s. 53 offence which caused the death of two persons, and of a s. 49 offence of driving a motor vehicle whilst under the influence of alcohol. The fatality occurred whilst he attempted to overtake a vehicle in which the deceased persons were travelling. Having described the driving as being “seriously bad” at p. 2, and “appalling” at p. 3, and having cited at p. 2, presumably with approval, the trial judge’s description “…that the accused was plainly out of his mind with drink…”, the Court of Criminal Appeal indicated that it would have imposed a substantial sentence, being one of three years, but for the “character” of the accused person. Under that heading it identified the remorse shown, the acceptance of responsibility for the accident, the unlikely event of re-offending, the accused’s employment record, his excellent character and the fact that he was married, in his thirties with one child. On such facts the court imposed a fine of €7,500.00 on the s. 53 offence and €1,000.00 on the s. 49 offence. On first reading this looks a very substantial reduction indeed for the mitigating factors as outlined, in particular as two people were killed. It may, however be that as the judgment was delivered ex-tempore, other factors existed which were not fully recorded in the written script. The third case mentioned is The People (D.P.P.) v. O’Reilly [2008] 3 IR 632. Again, in that case there was a plea to a s. 53 offence, to a s. 49 offence and to a s. 56 offence under the Road Traffic Act 1961, as amended, being one of driving without insurance. In the trial court Mr. O’Reilly had been sentenced to five years on the s. 53 charge and six months on each of the other two charges, all to run concurrently but all fully suspended for a period of three years on entering a bond. There was a consequential disqualification for six years. On appeal, the Court of Criminal Appeal outlined the mitigating factors as being a frank admission of guilt, full cooperation with the gardaí, a guilty plea, the injuries which the accused suffered in the accident, his poor mental health including depression with suicidal ideas which had been ongoing for several months, his good work record and the impromptu nature of driving the car on the occasion which gave rise to the accident. In the court’s view the sentence imposed was appropriate to address the ingredient of personal deterrence as that applied to Mr. O’Reilly but fell short of incorporating any element of general deterrence: this was justified by reason of the aggravating factors, in particular the death of Mr. Rossiter and the alcohol consumed. In its place the Court of Criminal Appeal ultimately imposed a sentence of 240 hours of community service and was satisfied that this, being described at p. 643 as a “visible form of general deterrence”, coupled with a disqualification for six years, was sufficient in the circumstances. An example of a review application being successful is the case of The People (D.P.P.) v. Joseph O’Leary (Unreported, ex tempore, Court of Criminal Appeal, 21st February, 2011). Mr. O’Leary pleaded guilty to dangerous driving:
causing serious harm to one Jack Costello, aged nine, and causing harm to one David McGeer, aged thirteen. In the Circuit Criminal Court, the accused received an effective sentence of two years. The D.P.P. sought a review under s. 2 of the 1993 Act. The Court of Criminal Appeal, in its judgment delivered on 21st February, 2011, felt that the learned trial judge had committed an error of principle and increased the sentence on the charge under sec 53 of the 1961 Act, as amended, to one of three years and six months. Notwithstanding very impressive evidence in mitigation, such as the early plea, genuine remorse, the utter sense of guilt and shame felt, the absence of any previous convictions, the certainty of no reoccurrence, his position as a father and husband, his contribution to the local community and, of course, the very serious injuries suffered by him, the court felt bound to review the sentence in light of the appalling speeds involved, the context in which these occurred, the presence of two young children in the car and the resulting human tragedy for so many. It is difficult to say if any of these cases are of real help to this Court in firstly, deciding whether or not the trial court erred in principle and secondly, if it did, in what the appropriate sentence might be. Each case so depends on its specific circumstances that whilst general principles are always helpful the specifics of any case must yield to the individual circumstances of the one at hand. Therefore, whilst remaining mindful of existing authority we approach this review application by reference to the general principles outlined at para. 17 above. The situation about the reception of evidence as to how this incident has impacted on the family of the deceased, is touched upon at para. 9 supra. Although not covered by the legislation which permits a court to consider a victim impact statement, it is apparently quite common in such circumstances for the Circuit Criminal Court to accept and view such evidence presumably on a “de bene esse” basis. This is what occurred in this case. This Court can at a certain level fully understand why such an approach commends itself to the trial court and also how beneficial it may be for a family in dealing with such a tragedy. Yet, no later than in 2010 the legislature intervened in this area and amended the provisions of the 1993 Act. Apart from including offences under the Non-Fatal Against the Persons Act 1997, it did not otherwise enlarge the class or category of offence to which the provisions apply. That is and remains the law. Consequently, it is only in those mandatory cases that the court is statutorily obliged to have regard to such evidence or submissions. As this was not one such case, no such requirement existed. To reflect this, both counsel informed the court that the statement of Ms. McDonagh should not be considered by it. However, since the relevant material was before the Circuit Criminal Court it seems to us that unless we have some regard to it, we could not be said to have fully reviewed the reasons for the sentence ultimately imposed. Therefore, purely on a “without prejudice” basis we have looked at the statement and note the intimate nature of the deep and personal loss which the death of Patrick McDonagh has had on his family. It should be noted that no submission was made as to the existence, nature or scope of the court’s discretion in this area. Before looking at the points in favour of the respondent, it is important to search the circumstances of the case and seek out individual or collective events which may have exacerbated the death of Mr. McDonagh and/or which may have compounded the seriousness of the respondent’s driving. There is no doubt but that he was over the permitted alcohol limit, a fact which must be unreservedly condemned. However, and without in any way undermining the gravity of such matter, it is also a fact that the excess reading fell within the lowest tier of sanction for a first such offence: (see s. 26 of the 1961 Act as amended by s. 26 of the Road Traffic Act 1994 and s. 6 of the Road Traffic Act 2006). Note, the fact that by the date of sentence the respondent had a previous conviction under s. 49 of the 1961 Act, as amended, is not material to this particular point which is solely related to the condition of his person at the time of driving. Apart from this fact we cannot identify any other specific feature of the driving which could be classified as aggravating: speed of itself was not a specific feature. Despite having possession of a controlled substance on the 1st March, 2009, there is no evidence that he was under such influence at the relevant time. In addition, there is no suggestion of driving on the incorrect side of the road or overtaking at risk, of being engaged in competitive racing or in a show of bravado, or of otherwise being involved in reckless activity. The respondent was familiar with his car which was a Nissan Micra, was fully taxed and insured and all three passengers had their seatbelts on. As a consequence, there is an absence in this case, of features commonly associated with the majority of offences committed under s. 53 the 1961 Act, as amended. The other factors adverse to Mr. Stronge were firstly, the fact that his driving caused the death of a young man, which death has had a devastating affect on this family and secondly, his previous convictions, in particular the offence under s. 49 of the 1961 Act, as amended. The trial judge was clearly conscious of the importance of such convictions remarking that the same “…do you no assistance in this Court”. The mitigating factors, given in evidence before the trial judge, can be summarised as follows:-
(ii) his age and youthfulness: (iii) his difficult upbringing: (iv) the apology offered through his counsel in open court; the sincerity of which is supported by his guilty plea: (v) his sense of remorse is also evident from the letter which he wrote to the trial judge which incidentally sets out the reasons why he has felt restrained from apologising in person to the McDonagh family: (vi) the acceptance of responsibility for what he has caused: in his own words, he had known Patrick McDonagh since aged eight: his psychological and psychiatric condition: he suffers from Post Traumatic Stress Disorder, with depressive and anxiety features which are ongoing and which requires continuous medication. This condition is a direct consequence of the subject incident: and (viii) his personal life has completely altered and deteriorated since the accident: he also remains unemployed. Another factor, which is certainly not an aggravating one, is the respondent’s explanation as to why he lost control of the car: he says that he saw an animal and swerved to avoid it. This, in his view, was the cause of the accident. Although the D.P.P. submitted that the forensic evidence rested responsibility solely on driver error, there is no doubt but that Sergeant O’Meara agreed that such an explanation could not be positively discounted. In this Court’s view the trial judge was perfectly entitled to have regard to this possibility. In fact, had the point been addressed in the context of the burden of proof, perhaps more weight might have been given to it. Be that as it may, she was at least entitled to describe it as “possible”. In approaching the sentence the learned trial judge would have been aware that the maximum penalty was increased in 1994 from five years and a fine of £3,000 to ten years and a fine of £10,000 which fine since 2006 has been increased to €20,000 (s. 18 of the Road Traffic Act 2006). She would also have been aware that a reduction in sentence for mitigation is not necessarily calculated by reference to the maximum sentence available for any particular offence under statutory provision. As Egan J. said in The People (D.P.P.) v. M. [1994] 3 I.R. 306 at p. 315:-
In light of the above facts and circumstances, and by reference to the principles set out at paras. 15, 16 and 17 supra, can it be said that the imposed sentence was a substantial departure from what could be regarded as an appropriate one? Was there a gross departure from the norm, viewed in the context of the margin of discretion which any trial judge must have. Measured against the severity of this offence, (the resulting death, manner of driving, excess alcohol and previous convictions) must be, the mitigating factors outlined at para. 31 above. Whilst it is unnecessary to repeat those it is important to emphasise the guilty plea, sense of remorse having caused the death of his best friend whom the respondent had known since childhood, the age and youthfulness of the driver, the effects not only on his personal life but also on his physical and mental health resulting from this accident, as verified by doctors’ reports: these are all matters of considerable importance which the trial judge was obliged to appropriately evaluate and weigh. Reminding ourselves that this Court is not the court of trial, we cannot see how the sentence viewed in its entirety can be said to be unduly lenient so that an error of principle has resulted. We are satisfied that the judge took all relevant matters into account, disregarded all irrelevant matters and having had regard to the appropriate principles (including that of deterrence), arrived at a sentence which, in our view, is not amenable to a successful s. 2 review. The application cannot therefore succeed. Before concluding however, we wish to say the following. This is a tragic case with the great loss of a young person’s life: Patrick McDonagh was just over sixteen years of age at the time of the accident: was one of thirteen in family and was studying at the Tech in Kilkenny. He had his entire life ahead of him and this was denied to him by the respondent’s driving which caused his death. Great sympathy must go to his family at such a loss. The Stronge family must also have suffered in circumstances such as this. The situation is even more difficult as both families lived close by and, before the accident had a reasonable relationship with each other. This has been fractured, perhaps in a serious way. Whilst we are most reluctant to enter into this area, it should be said that any further deterioration can only be regretted and may lead to further grief and more tragedy for all concerned. Matters are where they are: they should not get any worse. 38. For the above reasons the application will be dismissed. | ||||||||||
