Court of Criminal Appeal allows DPP review of unduly lenient sentence for dangerous driving causing death and leaving the scene.

COURT OF CRIMINAL APPEAL

155 CJA of 2006

Finnegan J.

Budd J.

Clark J.

IN THE MATTER OF THE CRIMINAL JUSTICE ACT 1993 SECTION 2

BETWEEN

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

APPLICANT

AND

BRIDIE SHINNORS

RESPONDENT

JUDGMENT of the Court delivered on the 24th day of May 2007 by Finnegan J.

This is an application pursuant to the Criminal Justice Act 1993 section 2 taken by the prosecutor on the ground that the sentence

imposed on the respondent was unduly lenient. A preliminary issue arose as to whether in the circumstances of this case the

prosecutor was entitled to apply to this court for a review of the sentence imposed on the respondent. Section 2(1) provides as

follows –

“2(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as

the “sentencing court”) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal

Appeal to review the sentence.”

The respondent was charged with the following offences –

1. Dangerous driving causing death contrary to section 53 of the Road Traffic Act 1961 as amended by section 51 of the

Road Traffic Act 1968 and by section 3 of the Road Traffic (Amendment) Act 1984.

2. Failing to keep a vehicle at the scene of an occurrence contrary to section 106 of the Road Traffic Act 1961 as

amended by section 6 of the Road Traffic Act 1968 and section 3 of the Road Traffic (Amendment) Act 1984 and by

section 23 of the Road Traffic Act 2002.

The offence contrary to section 106 of the Road Traffic Act 1961 is a summary offence and was added to the indictment in respect

of the offence contrary to section 53 of the Road Traffic Act 1961 pursuant to section 6 of the Criminal Justice Act 1951 which

provides as follows:

“Where a person is sent forward for trial for an indictable offence, the indictment may contain a count for having

committed any offence triable summarily (in this section referred to as a summary offence) with which he has been

charged and which arises out of the same set of facts and, if found guilty on that count, he may be sentenced to suffer

any punishment which could be inflicted on a person summarily convicted of the summary offence.”

On behalf of the respondent it is contended that section 2(1) does not confer upon the Director of Public Prosecutions a right to

apply pursuant to that section in respect of a conviction on a summary offence tried on indictment. Section 6 of the Criminal Justice

Act 1961 has been considered by the Supreme Court. In The People (Attorney General) v Doyle [1964] 101 I.L.T.R. 136 at page 140

O’Dálaigh said in relation to section 6 of the Criminal Justice Act 1951 –

“The purpose, and the only purpose, of the section is to provide for the co-trial of the summary offence and indictable

offence. The object was to avoid the duality of a trial by jury of the indictable offence and of the summary offence by

the Justice – to the convenience of the accused and of the prosecution.”

In that case a summary offence was added to the indictment. The District Justice received informations and returned the defendant

for trial in respect of the first two counts which were indictable offences but ruled in relation to the third count, a summary offence

under section 53(2)(a) of the Road Traffic Act 1961, “information refused”. In the Circuit Court the trial on the first two counts

proceeded count 3 being adjourned generally. The respondent was found not guilty on counts 1 and 2 but found guilty of careless

driving under section 52 of the Road Traffic Act 1961 a summary offence. An issue on a case stated by the District Justice was

whether section 6 of the Criminal Justice Act 1951 permitted the summary offence in count 3 to be tried separately from the

indictable offences with which it had been associated notwithstanding that the indictable offences had been disposed of. The

decision of the court was that section 6 of the Criminal Justice Act 1951 did not admit of the summary offence which had been added

to an indictment being tried separately. The court held that as the object of section 6 of the Criminal Justice Act 1951 was to

convenience the prosecution and the defence and avoid the duality of a trial by jury and a separate trial of the summary offence by

the District Justice the Circuit Court had no jurisdiction to enter on a trial of the summary offence the indictable offences having been

disposed of. In The State (at the Prosecution of Richard Harkin) v Peter O’Malley [1978] I.R. 269 the respondent was charged with

indictable offences to which a summary offence was added pursuant to section 6 of the Criminal Justice Act 1951. At trial he was

found not guilty of the indictable offences but guilty of a lesser summary offences and the jury disagreed in relation to the summary

offence. The High Court held that in these circumstances he could not be re-tried before a jury in respect of the summary offence

which had been added to the indictment. In the course of his judgment in the High Court Gannon J. said –

“I appreciate the difficulty in construing a statute of the Oireachtas in a manner which imputes to it by implication a

procedural course which could have been, but is not, expressed in it so as to render its application more consistent with

the apparent intention to achieve justice. I understand the importance in principle of ensuring that the course of the

administration of justice, particularly in relation to matters of a criminal nature, should proceed regularly and conclusively.

But I think it is of paramount importance to any person accused of a criminal offence, even though it be only what is

termed a minor offence, that the course of procedure involved in his trial and the consequences to ensue should be clear

and unambiguous. It is the function of the legislature to ensure that procedures intended to achieve justice are clearly

stated and correspond to the intention.

It appears to me that the charge of the offence contrary to section 49 of the Act of 1961 would have been tried once

only if it had been tried summarily in the first instance. A consequence of the inclusion of this charge on the indictment

charging the prosecutor with manslaughter is that he may be required, as argued for the respondent, to stand his trial

twice for this summary offence before different juries – on the second occasion with no other issues for determination. I

think this consequence of insufficiently-defined procedure would not be consistent with justice.”

In the Supreme Court O’Higgins C.J. in allowing the appeal concluded that the ratio decidendi in Doyle’s Case is wrong. He dealt with

the passage from the judgment of O’Dálaigh C.J. in Doyle’s Case quoted above as follows –

“It seems to me that this is to misinterpret both the purpose and the effect of section 6 of the Act of 1951. The duality

of trial, to which the learned Chief Justice refers, which is to be avoided, is the trial in different courts by different

procedures. This is achieved by making the summary offence indictable and triable by jury. It ceases to be a summary

offence triable as such and becomes the subject matter of a count in the indictment. Section 6 authorises this and does

no more. Once included in the indictment as the subject matter of a count, the offence must be dealt with in the same

way as any other offence so included.”

He went on to say –

“I cannot read into the section anything which could prohibit or restrict the trial judge from ordering, where justice so

requires, a separate trial of a count which has been included in the indictment under section 6 of the Act of 1951. I think

his powers to do so are precisely the same as his powers so to order in relation to any other count. For this reason I feel

that the basis of the decision in Doyle’s case was incorrect and the decision should now not be followed.”

In his judgment Henchy J said –

“Secondly, the count included pursuant to section 6 in the indictment is not to be treated for any purpose of the trial as

being different from any other count or counts merely because it has been included pursuant to section 6 of the Act of

1951. To hold otherwise would be to read into section 6 qualifications and restrictions which are conspicuously absent.

The section does no more than lay down the conditions for including such a count in an indictment and provides that

there is to be no change in the punishment to be imposed if a conviction follows on that inclusion. The fact that the

legislature has refrained from designating, in this or in any other statutory provision, that a count so included in an

indictment is to have any separate status by reason of having been so included must be taken to mean that such a count

is reckoned as having the same standing for the purposes of criminal procedure as any other count in the indictment.”

He held Doyle’s case to have been misconstrued the provisions. He again cited the passage from the judgment of O’Dálaighh C.J.

quoted above and went on to say –

“The section is an enabling one which empowers the prosecution to avoid subjecting the accused to the harassment of

separate trials in different courts and to escape the undesirable consequences that may follow, for the prosecution no

less than for the defence, when the same issues are tried in different courts. Once the prosecution has used section 6

and has thereby ensured that both the otherwise summary offence and the indictable offence will be tried on indictment

in the same court, the operation of the section as a determinant of the mode of trial is exhausted. I fear that it would

only be by reading into section 6 words which it does not contain that justification could be found for the conclusion of

O’Dálaigh C.J that section 6 does not admit of a summary offence which has been added to an indictment being tried

separately.”

On behalf of the respondent it is submitted that the phrase “conviction of a person on indictment” admits of a number of possible

interpretations. It should not be construed on a stand alone basis but looked at in context. Section 2 of the Act of 1993 is concerned

exclusively with sentence and the operation of section 6 of the 1951 Act does not in any way affect the sentence which can be

imposed. The court is urged to adopt the approach in The People (Attorney General) .v. Kennedy) [1946] I.R. 517 where Black J. said

–

“Thus we have an express grant of right of appeal without any express limitation of parties, and it is said that as the

words are clear, there can be no limitation. I am satisfied that to look at the provision in that way is to adopt an

erroneous method of final approach.

A small section of a picture, if looked at close-up, may indicate something quite clearly; but when one stands back and

examines the whole canvas, the close-up view of the small section is often found to have given a wholly wrong view of

what it really represented.”

In that case the Supreme Court rejected the literal construction of a section. It is submitted that the Director of Public Prosecution’s

right of appeal conferred by section 2 of the 1993 Act is defined not by reference to the trial procedure but the nature of the offence

in respect of which sentence has been imposed and that section 6 of the 1951 Act relates exclusively to trial procedure.

This court is satisfied that this is not so and that this submission fails to take account of the dicta of the Supreme Court in The State

(Harkin) v O’Malley – the summary offence once included in an indictment has the same status for the purpose of criminal procedure

as any other count in the indictment. Thus on conviction the respondent enjoys a right of appeal to the Court of Criminal Appeal that

being an incident of the procedure in the Circuit Court. Likewise this court is satisfied it is an incident of procedure in the Circuit Court

on a trial on indictment that the Director of Public Prosecutions should have a right to apply to this court pursuant to section 2 of the

1993 Act.

Next on behalf of the respondent it is argued that this court should prefer an interpretation of section 2 of the 1993 Act which is

constitutional rather than one which is unconstitutional where both are open and that to interpret the section as giving the Director

of Public Prosecutions a right to apply to this court in relation to sentence would offend Article 40.1 of the Constitution and the

guarantee of equality therein contained. Had the trial taken place in the District Court the Director of Public Prosecutions would have

no right to apply. The court is satisfied that article 40.1 has no application. In Quinn’s Supermarket v Attorney General [1972] I.R. 1

Walsh J. said of Article 40 that it is not a guarantee of absolute equality for all citizens and in all circumstances but a guarantee of

equality as human persons. It is a guarantee related to the dignity of persons as human beings and a guarantee against any

inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of

their human attributes whether ethnic or racial, social or religious background, are to be treated as the inferior or superior of other

individuals in the community. The difference in treatment here is not related to human attributes: it is related to the different court of

trial. As the application relates to sentence only there is no double jeopardy: People (D.P.P.) v Heeney, unreported, Supreme Court,

5th April 2001. This argument accordingly is rejected.

Finally it is submitted that the section is penal and accordingly must be strictly construed. While this principle of construction is

accepted it is no more than an example of the presumption against unclear changes in the law. Lord Esher in Tuck and Sons v Priester

[1887] 19 Q.B.D. 629 at 638 said –

“If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that

construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for

construction of penal sections.”

However the basic rule of construction is that the court must give effect to the ordinary words of a section in the general context of

the statute unless to do so would produce an absurd result which cannot reasonably be supposed to have been the intention of the

legislature in which case the words may be applied in any secondary meaning which they are capable of bearing. In this case the

court is satisfied that the words with which it is concerned in section 2 of the 1993 Act in their ordinary meaning are clear – the

section applies where there has been a conviction on indictment. Again where words have a technical meaning, where appropriate,

that meaning should be applied. Insofar as “conviction of a person on indictment” is a technical phrase it is nonetheless clear and

there is no justification for seeking a secondary meaning. This court is satisfied that the phrase means exactly what it says.

Accordingly the court is satisfied that the intention of the legislature was to confer upon the Director of Public Prosecutions a right to

apply to this court where a sentence imposed upon a person upon conviction on indictment of an indictable offence or an offence

triable summarily appears to him to be unduly lenient.

The circumstances giving rise to the offences with which the respondent was charged are the following. An accident occurred on the

Black Road some two hundred metres from the village of Newport, Co. Tipperary on the 24th October 2004 at about 2.15 a.m. as a

result of which Siobhán Doyle a pedestrian was struck by the respondent’s car and killed. The deceased was with some companions

making their way home having been in a bar and subsequently a chip shop. She was walking with two other women, on the footpath,

side by side she being closest to the road. The respondent’s car struck the deceased causing injuries of which she died. There was

evidence which would enable the jury to find that the car mounted the footpath and there struck the deceased or alternatively that

the accident occurred on the roadway in that while the deceased’s companions described the accident as having occurred on the

footpath the deceased’s body was found on the roadway. The respondent believed that the accident occurred on the roadway. The

respondent did not stop at the scene but accelerated away. The deceased was dressed in black clothing. The accident occurred

midway between two street lights fifty yards apart. At the locus the roadway was twenty five feet wide with a footpath a little over

three and a half feet wide. The speed limit at the locus was 30 miles per hour. The respondent’s car when inspected had damage to

the near front or left side with damage to the front indicator and headlight, the front bumper, the bonnet and wing and the

windscreen pillar. The windscreen was shattered and impacted on the near side.

At 5.15 a.m. that morning Garda Cunningham called to the respondent’s home and spoke to her. She made and signed a statement

portion of which was excluded. In the admitted portion the respondent admitted driving her car from Newport to her home. She saw a

group of people drunk on the road. She knew that she had hit one of them. She panicked and kept going. Her children were at home

alone. She made a further cautioned statement at a Garda Station the following day. She was driving along Black Road and noticed

three people on the left hand side of the road but was unable to say whether they were on the footpath or on the road or whether

they were walking or standing. As she was passing them she heard a loud bang and knew that she had hit some one. She did not

remember braking. She panicked and accelerated away from the scene. When she got home she drove her car around to the back of

her house. She had been driving on a provisional licence for the previous twelve years.

The jury acquitted the respondent in relation to count 1 dangerous driving causing death but convicted her of the lesser offence of

careless driving contrary to section 52 of the Road Traffic Act 1961. The respondent pleaded guilty to count 2 the offence of failing

to keep her vehicle at the scene contrary to section 106 of the Road Traffic Act 1961. In respect of the offence under section 52 of

the Road Traffic Act 1961 the Circuit Court Judge imposed a fine of €750.00. In respect of the offence contrary to section 106 of the

Road Traffic Act 1961 he imposed a sentence of three months imprisonment suspended, endorsed the respondent’s licence and

disqualified her from driving for two years from the 1st September 2006. The Director of Public Prosecutions applies to this court it

appearing to him that the sentence imposed in respect of the offence under section 106 of the Road Traffic Act 1961 was unduly

lenient.

Sentence” is defined in section 1 of the 1993 Act as including a sentence of imprisonment and any other order made by a court in

dealing with a convicted person. The maximum sentence which can be imposed in respect of the offence provided for by section 106

as amended by the Road Traffic (Amendment) Act 1984 section 3 and the Road Traffic Act 2002 section 23 is a term of six months

imprisonment or a fine of €1,500.00 or both. In addition the court has power to impose an ancillary disqualification order pursuant to

section 27 of the Road Traffic Act 1961.

At the sentence hearing there was evidence that the respondent had expressed remorse at an early stage. Further since the offence

the family of the deceased had displayed hostility towards the respondent as a result of which she had been living at Shannon away

from her home, her husband and children and close to her employment in Limerick. The respondent gave evidence and expressed her

remorse. She had wished to meet with the deceased’s family to express her remorse to them but had been dissuaded from so doing.

The learned Circuit Court judge was told that the respondent had been prepared to plead to an offence under the Road Traffic Act

1961 section 52 but that this had not been acceptable to the Director of Public Prosecutions. She had no previous convictions. As to

her personal circumstances the respondent was aged 42 years and a married woman with two children aged 8 and 13.

In reviewing sentence this court should first look at the circumstances of the offence and determine where on the range of penalties

the offence lies. The sentence should be proportionate to the crime and to the personal circumstances of the applicant. A relevant

circumstance is that the occurrence out of which the charge arose and with which the court is concerned involved a death – the

court should not close its eyes to this circumstance: see The People (Director of Public Prosecutions) v O’Dwyer Court of Criminal

Appeal 28th July 2005. Thus in this case the death of Siobhán Doyle is a factor. Next on her own account at the time of the

occurrence the respondent was driving at forty miles per hour in a thirty miles per hour zone. That she panicked is understandable but

that does not excuse her leaving the scene. Had she remained at the scene she might well have been in a position to give active

assistance to the injured. Up to the time that the Gardai made contact with her at 5.15 a.m. on the same morning she had an

opportunity to contact the Gardai but did not do so. That and the fact that her motor car was parked to the rear of her house is

indicative of an intention to avoid the consequences of her driving.

In mitigation the court takes into account her repeated expressions of remorse. Further once contacted by the Gardai she co-

operated, accepted responsibility and made two cautioned statements. She pleaded guilty to the offence with which this court is

concerned and such a plea was indicated in her cautioned statements.

The court has regard to her personal circumstances. She is a married woman with two young children. In addition hostility in her own

community has forced her to move away from her husband and children. She has no previous convictions. When she returns to her

home she will require her car to travel to work: in considering a period of disqualification the court bears this in mind.

The offence to which she has pleaded guilty is a serious offence. It can have serious consequences for the administration of justice.

By fleeing the scene of an accident a driver could escape the consequences of his driving in that he might not be traced. To treat

the offence lightly could only encourage drivers to seek to escape more serious consequences of their driving such as the risk of a

conviction under section 102 of the Road Traffic Act 1961. As a random example a driver conscious that he was liable to conviction

for a serious offence by reason of the consumption of alcohol might choose to leave the scene of an accident to avoid being traced

or to avoid confrontation with the Gardai at a time which would enable him to be tested in relation to the consumption of alcohol. In

these circumstances it is appropriate in considering a sentence for this offence to have regard to deterrence. This court is satisfied

that in the instant case the learned trial judge failed to have sufficient regard to the element of deterrence and for that reason that

the sentence imposed on the respondent was unduly lenient. This court would substitute for the sentence imposed the following –

1. A term of imprisonment of three months suspended on terms that the respondent enter into a bond to be of good

behaviour and to keep the peace for a period of two years.

2. The conviction to be endorsed on the respondent’s licence.

3. The respondent to be disqualified from driving for a period of five years from the 1st September 2006.

DPP v Shinnors