Court of Criminal Appeal reduces sentence for dangerous driving causing death from 7.5 to 5 years due to appellant's brain injury and lack of remorse.

THE COURT OF CRIMINAL APPEAL

Kearns J.

Irvine J.

Edwards J.

[C.C.A. No. 234 of 2008]

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

OLIVER SHOVELIN

APPELLANT

JUDGMENT of the Court delivered on the 27th day of April, 2009 by Kearns J.

This is an appeal against the severity of a sentence imposed in the Dublin Circuit Court on 28th July, 2008. The appellant was convicted following a trial of dangerous

driving causing the death of John Sheridan at Cookstown, Ardee in the County of Louth on 11th July, 2004. He was also convicted of dangerous driving causing serious

harm to Deirdre O’Brien on the same date and at the same location. In respect of the offence of dangerous driving causing death contrary to s.53 of the Road Traffic Act,

1961 (as amended), the learned trial judge imposed a sentence of seven and a half years imprisonment. A sentence of six years imprisonment was imposed for the offence

of dangerous driving causing serious harm. Both sentences were directed to run concurrently. In addition, the appellant was disqualified from driving for life. Leave to

appeal to this Court was granted by the trial judge, His Honour Judge Hunt.

BACKGROUND

The appellant was born on 25th February, 1976 and is a native of Rathmullen, County Donegal. He is a single man and grew up on the family farm in Rathmullen. At the

time of the sentencing hearing he had twenty-seven previous convictions most of which related to road traffic offences, but two of which consisted of assaults on

members of An Garda Siochana. At the time of this offence he had two drink driving prosecutions which were pending and in respect of which convictions were

recorded on 14th October, 2005. He also had a conviction for refusing to provide a sample of his breath on 15th March, 2004 in respect of which a sentence of four

months imprisonment was imposed but suspended on condition that the appellant would have no further convictions within five years under s. 49 or s. 13 of the Road

Traffic Act 1961.

On the day prior to the accident, the appellant purchased the Ford Escort van which he was driving on the date of the offence. Without arranging insurance for the

vehicle, the appellant decided to drive to Dublin in the van on the morning of 11th July, 2004 for the purpose of attending a football match in Croke Park. Having

commenced his journey, the appellant stopped to pick up John Sheridan who was a young man aged nineteen years from Rathmullen and who was hitch-hiking a lift to

Dublin on the date in question. A number of witnesses who gave evidence at trial that over a period of some thirty or forty minutes before the accident occurred, the

appellant’s van was seen to be driven at very high speed and in an erratic manner along the route that would take persons from Donegal to the crash scene. At times the

appellant was on the wrong side of the road to such a degree that he was driving on the hard shoulder on the incorrect side of the roadway. One witness observed that

the appellant appeared to be asleep or falling asleep because he had his eyes closed at the wheel of the car. At a certain point a vehicle driven by Ms. Deirdre O’Brien

came in the opposite direction and a collision between the two vehicles occurred as a result of which Mr. Sheridan suffered fatal injuries, Ms. O’Brien suffered severe

injuries of a permanent nature and the appellant himself suffered multiple injuries, including a significant head injury which left him with no recollection or memory

whatsoever of the event in question.

The extent of the injuries suffered by the appellant were such as to render it impossible for the Garda Siochana to interview the appellant, nor was it possible having

regard to his condition to test for the possibility of alcohol consumption. However, in this respect it should be noted that in the aftermath of the collision an

independent witness who suspected that the consumption of alcohol had played a part in the collision sniffed around inside the van containing the deceased and the

appellant but could smell no trace of alcohol.

The appellant pleaded not guilty and there was a full trial in the Circuit Court where each and every element of the prosecution case was fully contested. In the course of

imposing sentence, the learned trial judge noted that no “concessions” had been made in respect of any aspect of the trial and further noted that this was not the fault of

counsel who was obliged to act in accordance with instructions received from the appellant. The learned trial judge noted further that the family of Mr. Sheridan had to

listen to all of the details in relation to his injuries and in this regard concluded “so I really think that Mr. Shovelin has very very little going for him”.

In identifying the aggravating and mitigating circumstances in the case, the learned trial judge noted the following:-

“There are a number of aggravating factors – the consistent pattern of dangerous driving, very high speed, consistent positioning on the incorrect

side of the roadway. What is perhaps worse is Mr. Shovelin’s attitude following upon his conviction and I want to refer to the probation report which

has been commissioned in relation to the matter. He has what in my view is the gall to take issue with the actions of Ms. O’Brien who tried to avoid the

inevitable accident by swerving to her outside rather than to the inside. He disputed with the Probation Officer that he was on the wrong side of the

road but he went on to inform the Probation Officer that if that was the case the hard shoulder was available to the other car to avoid the collision.

This is the flavour of Mr. Shovelin’s stance in relation to his behaviour. He apparently was capable of making admissions to the Probation Officer in

relation to speed in overtaking, but when the implications of the potential consequences of this factor were explored with him, he advised the

Probation Officer that this fact did not make him responsible for what happened. This is an absolutely outrageous stance in my view. Mr. Shovelin sat

through the trial, as we all did; and although I accept he has difficulties in recollecting the events of this morning, he strikes me that he could have

had no difficulties in appreciating that the evidence that was given at his trial and the very clear nature indeed of the evidence in relation his

behaviour on that morning. So his stance, in my view, is an aggravation of what is already a very serious offence. When he was asked to consider the

fact that by his own admission his memory had been vague but that he had been found guilty by an independent jury, he remained steadfast in his

belief that not only has he suffered long term physical injuries as a result of the incident, he is also being blamed for something that he did not do.

Now, he does express remorse in relation to the death of Mr. Sheridan but he is singularly incapable of making a connection between the death of Mr.

Sheridan and the nature of his behaviour on this morning and I find that very, very worrying indeed.

So far as Ms. O’Brien is concerned, he seems to have absolutely no regard at all for the predicament that he has placed her in, he has displayed no

concern or was unable to verbalise any concern in relation to her particular position; and I also regard that as an aggravating factor in relation to

the matter. As I have said, he must have understood the evidence that was given. It couldn’t have been clearer. I can well understand that he had no

recollection of what happened at the time of the accident by virtue of his injuries, but it does seem to me that his stance in face of the evidence at trial

is a very inexplicable and puzzling stance indeed.”

The learned trial judge went on to identify as a further aggravating factor the fact that the appellant had a large number of road traffic convictions, including convictions

in relation to drink driving.

Insofar as mitigating circumstances were concerned, the learned trial judge noted that counsel for the appellant had laid particular emphasis on the fact that there was no

drink found to be a factor in relation to the driving of the appellant. In this particular regard, the learned trial judge stated:-

“It is almost as worrying that somebody would behave in this way when they were completely sober than if they had drink consumed. So it is a point

which I take on board but I think on analysis it doesn’t really assist the situation.”

At the conclusion of his decision the learned trial judge granted leave to the appellant to appeal to this Court. He did so on the basis that a clarification of the principles

applicable to such cases would be of benefit to sentencing courts.

DISCUSSION

In the course of making submissions on the hearing of the appeal, Mr. David Goldberg, senior counsel for the appellant, submitted that the transcript indicated that the

learned trial judge punished the appellant for contesting the case. He further submitted that the trial judge did not give any adequate weight to the mitigating factors

present in the appellant’s case, including the fact that the appellant himself suffered serious brain and physical injury in the collision. There had been no evidence of

alcohol consumption and the appellant was remorseful for what had occurred. He submitted that the decision of this Court in The People (Director of Public

Prosecutions) v. Philip Sheedy [2000] 2 I.R. 184 made it clear that the sentence to be imposed should be proportionate to the offending behaviour and properly

balanced. Mr. Goldberg further submitted that the trial judge did not have sufficient regard to the comparator cases which were known to the court.

While an impressive table of comparator cases has been filed on the hearing of this appeal, comprising some eleven cases involving dangerous driving causing death

since 2001, the transcript indicates that only two cases were opened to the sentencing judge, namely The People (Director of Public Prosecutions) v. Sheedy [2000] 2

I.R. 184 and The People (Director of Public Prosecutions) v. James O’Reilly (Unreported, Court of Criminal Appeal, 11th December, 2007).

The facts of the Sheedy case are now well known. On the evening of the accident, Mr. Sheedy was driving a powerful car which he had purchased that week. He had

consumed three or four pints of beer. He was driving towards a roundabout at speed and failed to stop at the roundabout, traversed it and flew into the air for a distance

of about 70 feet at which point his car fell on top of a motor vehicle driven by Mrs. Anne Ryan whose husband and three children were also in the car with her. She died

instantly in the crash. There was evidence that the appellant had been driving at speed for quite some time and driving in a manner which caused other road users

concern.

In the course of delivering the judgment of this Court in that case, Denham J. stated as follows at p.195:-

“Each case must be considered on its own facts. The relevant factors must be balanced in each case. At issue is an offence in which there can be

varying degrees of fault. On the one hand one could have a case where there was one factor of fault, perhaps a momentary factor, and on the other

hand the offence can arise where there is a multiplicity of fault, many factors, such as the dangerous driving of a stolen vehicle and its use in the

intended ramming of other cars. The proportionate sentence takes into consideration the relevant factors.

A sentence should not always be calculated in relation to the maximum sentence. First, the court should consider the matter to see where on a range of

penalties the particular case would lie. It is clear that this case does not fall into the category of a less serious dangerous driving case (where, for

example, there may have been one fault factor). Nor can it be categorised as the most heinous. It is an offence which, in light of the circumstances, falls

into the medium band of this offence. Thus, the sentence should not be calculated at the maximum penalty. That established it is then necessary for the

court to consider the factors pleaded in mitigation as well as the aggravating factors.”

Denham J. listed as aggravating factors in that case the following:-

(1) Death. The driving of the applicant caused the death of Mrs. Anne Ryan and injury to others.

(2) Speed. It was clear on the evidence that the applicant was speeding.

(3) Manner of Driving. The applicant drove in such a manner over a period of time prior to the collision that other drivers on the road were

apprehensive of a collision.

(4) Drink. The applicant had drunk approximately three and a half to four pints of beer prior to driving the car.

(5) New car to him. The applicant had purchased the car, which was relatively powerful and with which he had not become familiar, just

days before the accident. Thus, he should have driven carefully so as to be in control of his new car.

By way of mitigating factors, Denham J. noted the following at pp. 195-196:-

(a) Plea. The applicant made an early plea of guilty.

(b) Previous convictions. The applicant had no previous convictions.

(c) Helpful attitude. Denham J. noted that the applicant had approached his insurance company and had asked them to facilitate disposal

of civil proceedings.

(d) Previous attitude to life. The applicant had worked hard to achieve his profession as an architect, had held down various jobs

throughout his college life to help pay for his education and had done pro bono work.

(e) Remorse. The applicant suffered greatly from remorse and that remorse was genuine. He had apologised unreservedly to the Ryan

family.

(f) Effect into the future. Denham J. noted that a sentence of imprisonment would affect the applicant greatly into the future. His

disqualification was for a period of twelve years and Denham J. noted that an architect who could not get into his car and drive to a site

was seriously hampered in his professional life. She also noted that the case had been the subject of extensive media coverage which

could not be beneficial to Mr. Sheedy’s employment position.

In that case the court upheld the intent of the trial judge that the applicant serve twenty-four months in custody.

Rather different circumstances arose in the case of The People (Director of Public Prosecutions) v. James O’Reilly (Unreported, Court of Criminal Appeal, 11th

December, 2007). In that case the respondent had attended a function in honour of his parents’ wedding anniversary at a hotel in Wexford in the company of his

girlfriend. He had a few drinks at the function following which he went back to his girlfriend’s house at Mount Prospect in Wexford. He did not drive a vehicle in

returning with his girlfriend from the function and only left his girlfriend’s house in the car for the purpose of picking up food at the local fast food restaurant. While

there he met a number of friends who were looking for a lift. Shortly afterwards he appeared to lose control of the vehicle as an oncoming vehicle approached. His

vehicle glanced off an oncoming vehicle before returning to its correct side where it impacted with a wall causing the death of one of his passengers. The driver was

marginally over the blood alcohol limit. The driver not only made a full statement and pleaded guilty, but also became extremely depressed because of the extent of his

remorse and was placed on significant levels of medication. He had no previous convictions and clearly impressed the trial judge as a young man of good character who

had a good working history. He had behaved responsibly for most of the evening and had taken a lift to and from the location of the function. This court substituted a

community service order in place of the suspended sentence of five years. It left intact a disqualification order which disqualified the driver from driving for a period of

six years.

Mr. Goldberg pointed to these cases as demonstrating an unsatisfactory lack of consistency in sentencing for the particular offence. His table of eleven cases included

three cases in which there was no alcohol involved, although each driver drove without insurance and had previous convictions for other driving offences. The

sentence range was from 2.5 to 7.5 years in those cases with no suspension. Of the remaining cases which did involve alcohol, as well as previous convictions, three

had no insurance, two had taken drugs and five involved speed. The sentences ranged from 1.5 to 8 years. Of the eight cases suspension of part of the sentence was

ordered in five of them.

Mr Goldberg submitted that to be fair, just and proportionate, the Court should place the instant case in the high end of the middle category or the low end of the high

category. He submitted that the comparators indicated that this was not the worst case. He submitted that on a fair reading of the cases, the range of sentence for this

type of case falls between four and six years. He submitted that the appellant got no discount for the fact there was no alcohol involved or on account of the fact that he

had suffered brain trauma and had no recollection of the accident. He submitted that the trial judge had increased the sentence substantially because the appellant went

before a jury in circumstances where he had no defence and no explanation.

DECISION

As each case of dangerous driving causing death turns so uniquely on its own facts, the Court would at the outset emphasise that this is an area of sentencing which,

for that very reason, does not lend itself to uniformity or consistency. This is not necessarily a bad thing as a sentencing judge, in endeavouring to comply with the

statement of principles enunciated by Denham J. in The People (DPP) v. Sheedy, will necessarily have to structure the appropriate sentence by reference to the specific

facts of the case before him. Where facts are different it must follow that the range of sentences will also show variations, and in some instances significant variations.

The Court is satisfied that the factors identified in the Sheedy case by Denham J., while not necessarily exhaustive, provide an excellent template for any sentencing

court in this kind of case.

For example, in the instant case, there are unusual features. Firstly, the fact that the driver was noted by one observer to be driving at high speed with his eyes closed at

an early hour in the morning could suggest that he was suffering from fatigue or had fallen asleep. However, that possible explanation becomes somewhat more difficult

to understand or accept having regard to the lengthy period of time during which the hazardous driving was observed. Another unusual feature in the case is the

significant brain injury suffered by the appellant which undoubtedly may explain some of the oddities identified by the trial judge, notably the appellant’s lack of

remorse and his apparent belief that he had committed no wrong whatsoever at the time of the accident. The Court is of the view that the learned trial judge did

unfortunately adopt an excessively punitive approach to the issue of sentence having regard to these factors and to the failure of the appellant to make any

“concessions” at any point during the trial. The Court is satisfied that this approach by the sentencing judge, although entirely understandable, influenced the ultimate

sentence to a significant degree.

However, the learned trial judge, correctly in the view of this Court, identified the principal aggravating factors as being the length of time during which the appellant

was engaged in reckless driving of the most dangerous kind and also the fact that the appellant had multiple previous convictions for road traffic offences. He was

entitled to take into account the fact that the driving of the appellant caused the death of Mr. Sheridan and severe injury to Ms. O’Brien. He was further entitled to take

into account that the appellant was driving a vehicle with which he was unfamiliar, having purchased it only the day previously.

Equally, the trial judge was entitled to take into account the fact that there was a singular absence of mitigating factors in this case. There was no guilty plea, nor did the

appellant demonstrate either remorse or a helpful attitude in terms of how he had addressed the tragedy for which his driving was exclusively responsible. Far from

having demonstrated a good previous attitude to life, the appellant’s criminal record and behaviour since 2000 indicated quite the opposite.

Taking everything into account, the Court is of the view that the appropriate sentence in this case for the offence of dangerous driving causing death is the term of five

years imprisonment. The Court is of the view that the appropriate sentence for the offence of dangerous driving causing serious harm is the term of four years

imprisonment. The Court would also direct, as did the learned trial judge, that both sentences run concurrently. The Court would also uphold the order of the learned

trial judge which disqualified the appellant from driving for life.