Court of Appeal dismisses appeal against 15-year driving ban for dangerous driving causing serious bodily harm.

THE COURT OF APPEAL

Birmingham J.

Edwards J.

Hedigan J.

4/17

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Timothy Walsh

Appellant

JUDGMENT of the Court delivered on the 27th day of July 2017 by Mr. Justice Hedigan

Introduction

1. This is an appeal against severity of sentence. The appellant entered a guilty plea, on the 4th July, 2014, to the offence of

dangerous driving causing serious bodily harm contrary to s. 53(1) of the Road Traffic Act 1961 as substituted by s. 4 of the Road

Traffic (No. 2) Act 2011. In Cork Circuit Criminal Court on the 30th July, 2014, he was sentenced to four years imprisonment with the

final year suspended and he was disqualified from driving for 15 years. The custodial sentence was served in Cork Prison and Shelton

Abbey and he was granted early release on the 13th January, 2016, on the basis of good behaviour and engagement with services.

The appeal herein is only in respect of the 15 years disqualification.

2. This appeal was brought outside of time but leave was granted by this Court on the 6th March, 2017. The enlargement application

was based on the fact the appellant was 49 years old upon entering prison for the first time and he was in shock, poor mental health

and very stressed at the time of his sentencing. He focused on the imprisonment rather than the disqualification.

The circumstances of the offence

3. The offence occurred on the 7th August, 2013, at approximately 5.40 pm while the appellant was driving an articulated truck and

attempted to overtake a cyclist on a rising bend to the left. It seems he pulled back in before clearing the cyclist and the cyclist was

struck by the rear wheels of the trailer. It was a busy section of road with limited visibility. It was a 42 tonne load with the vehicle

carrying its own load of timber and a separate load of timber on a trailer.

4. On the 4th June, 2013, the tractor unit and semi-trailer were found to be dangerously defective at a DOE test. The vehicle failed

on 70 grounds including critical defects involving brakes, lights and mirrors. The defects had not been addressed when the accident

occurred. Particularly, the rear side mirror was cracked, rendering it useless. This mirror was the one that should have been used by

the appellant to observe whether he was past the cyclist.

5. The appellant stayed on the scene and cooperated with the investigation. He pleaded at the earliest opportunity. Garda O’Leary

accepted that he was remorseful.

6. The injured party, Mr. O’Driscoll, suffered life threatening injuries. He has had extensive medical treatment, spent a considerable

period of time in hospital and was still in the National Rehabilitation Hospital when he wrote his victim impact statement. He was in a

wheelchair on the sentencing date. He also suffered severe psychological injuries. He was in intensive care for four months, the first

month of which he was in an induced coma. He had a fractured pelvis, two broken hips, legs and ankles, a minor head and shoulder

injury, liver and kidney failure, bowel and bladder damage and a severed spinal cord. He is confined to a wheelchair. At the time of

sentencing he was reliant on a colostomy bag and a catheter and did not know if or when he would be able to live without them. He

has severe ongoing pain. It has immensely impacted every aspect of his life. His victim impact statement also noted that his spinal

cord injury shortens life expectancy by 15 to 30 years.

The appellant’s personal circumstances

7. The appellant was a hard-working man and was working as a haulier at the time of his imprisonment. At sentencing it was noted

that he was the sole carer for his teenage son. He had been under financial and other pressures at the time. His brother was missing

in England and it ultimately transpired that he had committed suicide. A psychiatric report was handed into court.

8. Upon his release the effect of the disqualification became apparent. He lives in a remote area of Cork and works in Cork harbour. He

has to rely on lifts as the public transport links are poor. He often has to leave home very early and returns very late. The ban has

had a more pronounced effect on him than it would if he were living in an urban area. It has also affected his employment prospects

in the future.

9. The appellant is currently 52 years old and the ban effectively disqualifies him from driving for the rest of his working life or a large

proportion thereof.

10. He has nine previous convictions, all for road traffic offences. The most relevant one was on the 4th September, 2008, for careless

driving for which he was fined €400. A month after the incident the subject matter of this appeal the appellant was stopped by Gardaiì one kilometre from the locus of the

accident and subsequently convicted for no certificate of roadworthiness in relation to the tractor unit and the trailer and failure to secure the load.

Sentence

11. Before imposing the sentence and disqualification the sentencing judged noted that he had to balance the seriousness and level

of criminality with the appellant’s personal circumstances including his plea of guilty. The sentencing judge noted in relation to the

disqualification that the appellant’s age in relation to his driving was an aggravating factor. He noted the dangerous bend at which

the appellant overtook the victim on his bicycle. He knew the particular location and considered the appellant’s driving to have been

criminally negligent. He added also that the truck he was driving was seriously defective. The recklessness and irresponsibility of the

appellant clearly impressed itself upon the learned sentencing judge. So too did the devastating consequences for the victim cyclist.

He noted the obligation to disqualify the appellant. He also noted that living where he did, a disqualification from driving would be like

an ongoing prison sentence.

Appellant’s submissions

12. The appellant submits two grounds of appeal. The first of these is that the period of imprisonment was not wrong in principle but

the lengthy consequential disqualification is. It militated against his rehabilitation post release in that it severely curtailed his

prospects of getting and/or keeping employment. It was wrong in principle or length in that it was disproportionate in the

circumstances of the case and given the custodial sentence imposed.

13. The second ground is that s. 26 of the Road Traffic Act 1961, as amended, provides on conviction on indictment for a s. 53

offence for a consequential disqualification for the first offence of not less than four years. The Court was referred to s. 26(3), as

amended, where it is stated that the disqualification shall operate unless there is a special reason in the particular case. He argues

there is such a special reason in his case. It must be noted that at the hearing of the appeal counsel for the appellant focussed more

upon the overall length of disqualification rather than the four year consequential provision.

14. In The Director of Public Prosecutions v. Skillington [2016] IECA 289 this Court considered the question of whether a Circuit Court

judge had discretion not to disqualify a person where it was said it would impair their or any other person’s livelihood. Birmingham J.,

at paras. 14 and 15, confirmed that such a discretion did exist where there are special circumstances and that while “[d]ifficulties of

an employment nature will, of themselves and in isolation rarely, if ever, amount to special reasons the question posed should be

answered Yes”. The circumstances of that case did not amount to a special reason.

15. The appellant submits that in the instant case the employment difficulties are not the sole focus of his application and that there

are special reasons for reducing the ban below four years. It is submitted that one of the factors is his psychiatric difficulties. It was

not the appellant’s wish to have these referred to in open court during sentencing but the report was handed in.

16. It is submitted that the sentencing judge did not have any or any proper regard to the appellant’s rehabilitation. It is submitted

that if he loses his employment due to the ban this will have an adverse impact on his mental health. The sentencing judge compared

the ban for someone living in Glanworth as tantamount to “an ongoing prison sentence”. While the judge took the appellant’s age as

an aggravating factor he does not appear to have considered the effect on his post release work life of such a long ban at the

appellant’s age.

17. The Court is referred to The People (DPP) v. Coleman [2017] IECA 40 where this Court considered an undue leniency appeal

following a sentence of two and a half years and disqualification of 15 years for the offence of dangerous driving causing death. In

that case the sentence was increased to six years with the final two years and nine months suspended. The ban was not altered. It

is submitted that that case had many more aggravating factors than the instant case. In Coleman, the appellant had been driving

very dangerously prior to the accident and left the scene. He had fifteen previous convictions, eight were for driving offences arising

from a single incident. He had no previous convictions for dangerous driving. He was disqualified for six years at the time of the

offence. He never held a licence. He had been disqualified on three separate occasions since 2010.

18. It is submitted that the 15 years disqualification is excessive and that a “special reason” exists which would justify the Court

lifting the balance of the disqualification order.

Respondent’s submissions

19. The respondent referred the Court to Conroy v. Attorney General and Anor. [1965] I.R. 411 where the Supreme Court held that a

disqualification order is not primarily a punishment and should not be imposed for that purpose but a judicial determination of unfitness

to drive. It is submitted that Conroy was cited by this Court with approval in The People (DPP) v. Sweeney [2014] IECA 5 where the

importance of not imposing disqualification orders primarily as a form of punishment was stressed.

20. The respondent referred the Court to the caselaw on s. 53. and in particular, The People (DPP) v. Casey [2015] IECA 199 and The

People (DPP) v. Casey (No. 2) [2015] IECA 278 where the Court reduced the custodial sentence but left the 30 year disqualification in

place. That case was aggravated by the catastrophic injuries of the passengers one of whom died and another was left quadriplegic,

by the fact that the appellant’s blood alcohol level was four times above the permitted level and his excessive speed. The mitigation

was his plea of guilty, remorse, cooperation and his excellent work record and general good character. The disqualification was

appealed on the grounds that the sentencing judge failed to adequately regard rehabilitation and the appellant’s employment

prospects as he worked in plant hire. In refusing to disturb the order the Court noted it may impact his employment prospects and

that this could adversely affect his rehabilitation. The Court did note that in light of this and other evidence he should be given

further credit and suspended the final 12 months of his sentence which was reduced from seven to five years.

21. The Court is also referred to The People (DPP) v. Sheedy [2000] 2 I.R. 184 where the Court of Criminal Appeal affirmed a 12 year

ban while acknowledging the detrimental effect it would have on his employment prospects. That case involved the death of one

person and injury to others. The Court classed it as a “medium band of this offence”. The aggravating factors were the death, the

course of dangerous driving, his speed, alcohol level and that it was a new unfamiliar car. The mitigation was his guilty plea, no

previous convictions, remorse, helpful attitude, good working record and that he would be affected into the future by the incident,

conviction and sentence. His prison sentence was reduced from four to three years but the disqualification of 12 years was affirmed.

22. In The Director of Public Prosecutions v. O’Rourke [2016] IECA 299 the incident involved the death of a young boy and the

serious injury of his mother. This Court changed the custodial sentence from seven and a half years to eight years with the final two

suspended. The 20 year disqualification was re-imposed. The aggravating factors were the devastating effects on the victims, the

appellant’s high level of intoxication, extremely dangerous driving, leaving the scene, dishonesty about the amount he drank and not

fully cooperating. The mitigating factors were his plea, which was somewhat neutralised, an acknowledgment he was the driver,

remorse to some extent evidenced by his PTSD, his taking steps post-accident to stop drinking, his good employment history, his

being a devoted father, testimonials on his behalf and the probation report which put him at a low risk of reoffending.

23. In The People (DPP) v. Shovelin [2009] IECCA 44 the Court upheld a life ban from driving but reduced the sentences for dangerous

driving causing death and dangerous driving causing serious harm from seven and half years to five years and six years to four years,

respectively. He had numerous previous road traffic convictions. He was erratically driving at high speed for 30 to 40 minutes and on

the wrong side of the road. He crashed into a car travelling in the opposite direction resulting in the death of the passenger in his car

and serious injury to the driver of the other car. All these and that it was a new unfamiliar car were considered aggravating factors.

There were no mitigating factors. It was held that the sentencing judge unduly focused on the appellant’s lack of remorse and

insistence on contesting the case.

24. In The People (DPP) v. Handley [2017] IECA 34 where, it was accepted that the appellant must have fallen asleep when he veered

suddenly and struck a mother and child resulting in her death and the child being significantly injured, this Court suspended the

remainder of his two year sentence. At that point, he had served about eight months. While not considered in full as the appeal

focused on the sentence, the Court found the ten year disqualification justified but took it into account as an element of the

punishment the appellant had received and noted it was a severe penalty for a person in his mid-sixties. It was noted that his

culpability was less than in other cases involving alcohol or excessive speed or prior dangerous driving. He had no previous road traffic

convictions. The aggravating factor was driver fatigue. However, the common indicators of this such as late night driving or driving

over long distances were not present.

25. The respondent submits that it does not dispute that the disqualification will have a serious and detrimental impact on the

appellant’s life. The sentencing judge had the psychiatric report. He had regard to its contents and the appellant’s personal

circumstances. The judge was aware of the effect the ban would have on the appellant and his employment prospects. It was felt

that 15 years was necessary in light of the seriousness of the dangerous driving, the catastrophic consequences and the aggravating

factors. It is submitted that this was the correct approach. It is submitted that the bans in Casey (No. 2) and Sheedy were upheld

even though they were acknowledged to impact employment prospects and rehabilitation in the former case.

26. It is submitted that the appellant’s personal circumstances including his employment prospects and rehabilitation is one factor

among many to be considered by a sentencing judge. The judge considered the appellant’s mental health and the effect of

disqualification but was also obliged to have regard to the injuries suffered and the other aggravating factors many of which have a

direct bearing on the appellant’s fitness to drive. The injured party suffered devastating and life-changing injuries.

27. The respondent submits that the sequence of offending constitutes clear evidence of the appellant’s unfitness to drive. He was

driving a large vehicle with defects that he was aware of and failed to remedy and attempted a hazardous manoeuvre which caused

the collision. Even after the incident the appellant continued driving without certificates of roadworthiness and with an unsafely

loaded trailer. These are matters to which the sentencing judge was obliged to have regard. His personal circumstances cannot

overbear these considerations. It is submitted that even considering his circumstances the combination of his actions, their

consequences and his overall attitude merited a 15 year disqualification order.

28. The Court is referred to para. 12 of Skillington where it was noted in relation to hardship to an appellant that such cases “would

be truly exceptional”. It is submitted that the appellant does not point to any special reason relating to the offence alone or in

combination with his personal hardship which would justify the Court reducing the ban below the statutory minimum. Psychiatric

difficulties are an unfortunate consequence for persons convicted of these offences as a result of the incident and time spent in

prison and the consequences of disqualification. While unfortunate it is not an exceptional circumstance or special reason. It is

submitted that the Court could not have intended its findings in Skillington to be extended to a case such as this.

29. It is submitted that Coleman is of limited assistance as the disqualification was not appealed and only addressed in the last

sentence of the judgment where it is stated that the ban remains in place. Further, while it did contain aggravating factors which are

not present in the instant case there were also exceptional mitigating factors set out at paras. 26 to 29 of the Court’s judgment.

These include, remorse, an early guilty plea, no previous convictions for dangerous driving, excellent probation report and a letter

from his mother that he returned to Dublin due to her illness. He attended Mountjoy psychology service and completed a level 3 crime

awareness programme in the education centre. He earned a food safety certificate and one for completing the Pacific Institute Steps

to Excellence Programme. There was also an excellent prison governor’s report noting he had no disciplinary reports or issues with

staff. He worked in the prison kitchen.

30. It is submitted that there are aggravating factors in the present case which were not present in Coleman. The appellant has a

previous careless driving conviction. Mr. Coleman was driving a Volkswagen Golf while the appellant was driving a 42 tonne vehicle and

trailer which he knew were dangerously unroadworthy. A higher degree of care was to be expected of him in these circumstances. In

the aftermath of the accident he failed to remedy the defects and received further convictions. These aggravating factors are

directly applicable to the question of fitness to drive. As far as it is relevant, the sentencing judge was entitled to impose the same

disqualification as was imposed in Coleman.

31. It is submitted that in light of the judgments referred to above the disqualification order was not disproportionate or excessive. It

was noted that in the 17 years since Sheedy was decided, sentences and disqualification orders for dangerous driving causing death

and serious harm have steadily increased. The offending, the consequences, the aggravating and mitigating factors in each of the

above cases are different. It is submitted that the sentencing judge correctly measured the disqualification of 15 years which falls

between the periods imposed in Casey, O’Rourke and Shovelin at one end of the scale and Handley at the other. Unlike the appellants

in Casey and O’Rourke who received longer disqualifications the appellant herein had multiple previous convictions for road traffic

offences. Unlike any of the cases mentioned the appellant was driving a very large and heavily loaded commercial vehicle which he

knew was dangerously unroadworthy.

32. It is submitted that it would not be appropriate to reduce the period to ten years like in Handley as that case did not have the

aggravating factors present here and in many other cases.

33. When compared with the cases mentioned above and taking into account the offence, the consequences and aggravating factors

the 15 years disqualification order was neither disproportionate nor excessive.

Decision

34. This appeal is solely concerned with the disqualification imposed upon the appellant. As noted above, he received a sentence of

four years imprisonment with the final year suspended. In the circumstances of his pleading guilty to the indictable offence of

dangerous driving causing serious bodily harm, he was subject to a consequential disqualification of not less than four years. On the

facts of the case, the learned sentencing judge considered it appropriate to impose a further 11 years ancillary disqualification. He

was thus disqualified from driving for 15 years in all.

35. Section 26 of the Road Traffic Act 1961, as amended, provides that where a person is convicted on indictment of an offence

contrary to s. 53 of the Road Traffic Act 1961, as amended, they must receive a consequential disqualification order of not less than

four years in the case of a first offence under the section concerned. However, s. 26(3) of the Road Traffic Act 1961, as amended,

provides that the consequential disqualification order:

“…operates to disqualify a person to whom the order relates from holding any driving licence whatsoever during the

specified period and, unless the court is satisfied that a special reason (which it shall specify when making its order) has

been proved by the convicted person to exist in his or her particular case such that it should not so operate…”

36. The appellant argues that the overall period of disqualification is wrong in principle. It would prejudice his rehabilitation upon his

release from prison because it would severely adversely affect his ability to obtain and keep employment. It was disproportionate in

the circumstances of the case including the length of the prison sentence imposed. Moreover, it is argued that the consequential

disqualification of four years should not be imposed because there is a special reason why this should not be done. As noted above,

the emphasis of counsel for the appellant at the hearing of the appeal was upon the overall length of the disqualification. The “special

reason” he identifies are certain psychiatric difficulties linked to employment difficulties in living a long way from work. In support of

the psychiatric aspect of this claim, a report was handed into court on the 30th July, 2014. It describes a difficult social and family

life, intermittent suicidal ideation and concludes that he appeared quite depressed.

37. The nature of a disqualification order was discussed by Walsh J. in Conroy at pp. 441 to 442 where he stated:

“In so far as it may be classed as a punishment at all it is not a primary or direct punishment but rather an order which

may, according to the circumstances of the particular individual concerned, assume, though remotely, a punitive

character.

One must not lose sight, however, of the real nature of the disqualification order which is that it is essentially a finding of

unfitness of the person concerned to hold a driving licence. Apart from the statutory minimum which is imposed in certain

cases, this is a matter which must be determined by the Court in the light of evidence which it hears on this aspect of

the case and in the light of that evidence it may determine what period of disqualification will be appropriate.

A motor car, if not driven properly, is a potential danger not merely to the driver himself but to all other persons using the

highway. It is obvious that the protection of the common good requires that the right to drive a motor car cannot be

unrestricted. The right may therefore be lost if a Court, on a consideration of the relevant facts and materials, determines

that the person concerned, by reason of his general recklessness or thoughtlessness or his propensity to drink, or by

reason of disease or other disability or his abuse of the right by exercising it in the furtherance of criminal activities, is

unfit to exercise the right to drive a motor car. Such disqualification is not a punishment notwithstanding that the

consequence of such finding of unfitness might be both socially and economically serious for the person concerned. The

passage in the judgment of The State of Minnesota v. Moseng [254 Minn. 263], already referred to, correctly indicates

that in modern society a motor vehicle has become a necessity for many people. It is also correct, as was observed in

that judgment, that if a person is unreasonably kept off the highway one might say that his right to liberty is curtailed.

The operative word, however, is “unreasonably” and it can scarcely be disputed that it would not be unreasonable to

keep off the highway a person who has shown himself to be and has been proved to be unfit to be on it. As is provided in

s. 28 of the Act, that may be quite clearly established where there is no question of conviction at all even though the

results may be just as severe for the person concerned as they would be if he had been disqualified under ss. 26 or 27

following a conviction. Undoubtedly disqualification may have a deterrent quality but that does not make it a punishment.

It is a regulation of the exercise of a statutory right in the interest of public order and safety. This view is also borne out

by the provisions of s. 29 which provide machinery for the removal of consequential and ancillary disqualification orders.

The machinery is also in the form of a judicial act which includes a judicial consideration of the character of the applicant,

his conduct since his conviction, the nature of the offence and such other matters as may appear to the Court to be

relevant. This is clearly designed to ascertain whether the applicant has ceased to be unfit to hold a driving licence.

Though it may have punitive consequences disqualification cannot be regarded as a punishment in the sense in which that

term is used in considering the gravity of an offence by reference to the punishment it may attract upon conviction such

as imprisonment or a fine, but rather is a finding of unfitness.”

38. Analysing this passage in Sweeney, Hogan J. stated at paras. 12 and 13 as follows:

“12. While it is true that Conroy is ultimately a determination of the nature of a disqualification order in the context of the

minor/non-minor offence distinction for the purposes of Article 38.2 of the Constitution, the reasoning of Walsh J. must

nonetheless inform any wider analysis of the nature of such a disqualification order, whether it is imposed pursuant to

either s. 26 or s. 27 of the 1961 Act. This is relevant so far as the present case is concerned, because the fundamental

question governing the making of a disqualification order in relation to non-motoring offences is whether the offender has,

in the words of Walsh J. in Conroy, so abused his right to drive on a public road “by exercising it in the furtherance of

criminal activities” that he is thereby “unfit to exercise the right to drive a motor car".

13. If the power to disqualify could be exercised in any wider fashion, then it would cease to retain the essential quality

of a determination of fitness to drive. Such a broader interpretation would alter the general character of the

disqualification power so that it would thereby evolve from a regulation of the fitness to drive into a form of primary

punishment. This would have significant implications throughout the wider criminal justice system and would once again

call into question the constitutionality of legislation providing for the summary disposition of drunk driving offences.”

39. Later in the same paragraph Hogan J. continued:

“It seems necessarily implicit in the reasoning of Walsh J. in Conroy that if such a disqualification order could be regarded

as primary punishment this would have led to a finding of unconstitutionality in that case in as much as s. 49 of the 1961

Act would thereby have sanctioned the summary trial of a non-minor offence, contrary to Article 38.2 and Article 38.5 of

the Constitution. This point was also made in The People (Attorney General) v. Poyning [1972] I.R. 402, at p. 411 where

Walsh J. said that such ‘disqualifications are not primarily punishments and are not to be so regarded by trial judges’.”

40. Thus, the essential nature of a disqualification order is that it is not a punishment. It is a finding of unfitness to drive. It may in

many cases have consequences that can only be described in common parlance as “punitive”. That however does not transform it

into a form of primary punishment such as imprisonment or a fine. Thus, it should not be imposed as a form of punishment. Where the

question of imposing a disqualification arises, the court should ask itself whether the person in question is fit to drive a mechanically

propelled vehicle on the public highway. If on the facts of the case the answer is no, then a disqualification may be made for such

period as the court thinks appropriate. Careful consideration should be given to this question because a disqualification may have

major consequences on the employment and family life of the person disqualified. Careful consideration needs to be given to the

length of such disqualification. The public interest may well require short, lengthy or even lifetime disqualifications. Every case will

need to be evaluated on its own facts and on the nature of the person to be disqualified. Fitness to drive is the key focus not

punishment.

41. Turning to this case, in relation to the consequential disqualification of not less than four years, is there a “special reason” why it

should not be applied. The appellant argues that his employment difficulties are not the sole reason. There are also his psychiatric

difficulties referred to in the psychiatric report. However, in submissions during the hearing of this appeal, his counsel mostly focused

on the difficulty of his getting to and from work because of the fact that he lives in an area quite remote from where he works. There

is little in the way of public transport available to him. In Skillington, this Court considered the almost identical provision found at s.

65(5) (b) of the Road Traffic Act 2010 in relation to a first conviction for driving with no insurance. This was a consultative case

stated which posed the following question:

“Having regard to the facts as proved or admitted or agreed and as found by me and having regard to the law in this

jurisdiction, as well as that of other jurisdictions, the opinion of the Court of Appeal is sought on the question as to

whether the Court has discretion not to disqualify a person from driving in circumstances where the said disqualification

would impair that person’s or any other person’s livelihood.”

It was submitted that the necessity of an individual driving for the purposes of his work was sufficient “special reason” not to impose

a consequential disqualification. Delivering the judgment of the Court, Birmingham J. stated at para. 15:

“The question posed is whether a court has discretion not to disqualify a person from driving in circumstances where the

disqualification would impair that person or any other person’s livelihood. The Court has discretion not to disqualify where

there are special reasons present. Difficulties of an employment nature will, of themselves and in isolation rarely, if ever,

amount to special reasons. That notwithstanding, the question posed should be answered Yes.”

42. The psychiatric report produced to the learned sentencing judge does not raise any particular or unusual grounds. The appellant is

described as anxious and depressed. This is only to be expected in the light of the situation that pertained on the 30th June, 2014,

when the report was prepared for the Circuit Court hearing on the 4th July, 2014. Sad though the appellant’s condition was, there

was nothing special or unusual about it. As to the second ground raised, as noted above in Skillington, the employment situation of a

person seeking exemption from a consequential disqualification can only rarely if ever amount to special reasons. Again, as with the

psychiatric case made, there is nothing particularly unusual in the difficulties faced by the appellant in getting to work. His difficulty

could hardly be described as one rarely found. Thus, neither ground raised can provide reasons sufficient for the Court to exercise its

discretion not to impose a consequential disqualification in this case. No error on the learned sentencing judge’s part can be identified

in this regard.

43. The 11 years imposed by way of an ancillary disqualification must be considered in the light of the principle identified in Conroy

and Sweeney. In the circumstances of this case and this offender, is he unfit to drive for the period specified? Although not a primary

punishment, the disqualification clearly has punitive consequences for the appellant. The Court should therefore apply the totality

principle well established by this Court as required in the sentencing process. It is thus the full period of 15 years disqualification that

falls to be considered. In the light of the comments of Walsh J. in Conroy at pp. 441 and 442 cited above, the Court should consider

whether the general recklessness or thoughtlessness of the appellant is such as makes him unfit to drive. Irresponsibility is clearly

encompassed in Walsh J.’s remarks. Is it reasonable to remove his right to drive on the highway for such a lengthy period?

44. A young driver found to have acted recklessly, irresponsibly or thoughtlessly may well be considered unfit to drive until he reaches

a certain level of greater maturity. A court might reasonably consider that keeping him off the road for a particular limited number of

years may be necessary in the public interest. It may reasonably be hoped that both the fact of the disqualification itself and the

passing of some years is likely to mature such a young driver. Different considerations must apply in the case of a man of almost 50

years, as is the case here. It might well be that the impact of such a horrific accident as occurred here could have such an effect as

would bring someone such as the appellant to face up to the recklessness and irresponsibility shown by him in driving a 42 tonne lorry

and trailer that was so full of defects as to render it unroadworthy. Such, however, is not the case here. Only one month after the

accident, which caused such devastating injury to Mr. O’Driscoll, the appellant was stopped just one kilometre from the scene of the

accident driving the same lorry still in its unroadworthy condition. Such a level of irresponsibility and recklessness is literally

breathtaking. That it should be found in a professional driver of almost 50 years of age is profoundly disturbing. It might well have led

the learned sentencing judge to consider whether such a person should ever again be allowed to drive on the highway. However, a

lifetime disqualification was not raised in the proceedings before the Circuit Court or the hearing of this appeal and the Court will

refrain from going beyond the current period of disqualification of 15 years. The court will not however decrease the period imposed.

45. At its request, this Court was furnished with certain submissions in relation to the possibility of restricting the appellant to a

Category B licence i.e. one covering a motor car capable of carrying up to eight persons in addition to the driver. The Court was told

that the appellant was prepared, if the Court considered it appropriate, to give an undertaking not to apply for any other category of

licence. The Court was referred to Art. 54(1) of the Road Traffic (Licensing of Drivers) Regulations 1999 (S.I. No. 352 of1999) which

dealt with partial disqualification from holding a licence of certain categories. The jurisdiction to make an order of partial

disqualification is however questioned by the learned author in Pierse, Road Traffic Law, 3rd Ed., (Dublin, 2004) at [3.9.8.9] on p.

347. Referring to these provisions, it is stated therein that:

“They are somewhat peculiar provisions as the wording of the Act refers to disqualification being on the total licence and

not on particular classes.”

46. The Court is not satisfied however that such a partial disqualification is an appropriate course to follow herein. The appellant

drove a 42 tonne lorry with a full load of timber, pulling a trailer also with a full load of timber, which was manifestly unroadworthy. It

had been identified two months before in a test centre as having 70 defects involving brakes, lights and mirrors. It was driven at the

time of the accident in a manner described by the learned sentencing judge as criminally negligent. The judge was familiar with the

location of the accident. He described the manoeuvre of overtaking the cyclist at that place as incredible. The appellant was stopped

one month later driving the same lorry in the same condition. The destructive power of such a truck is undoubtedly manifest. There is,

as found above, every reason to ensure that the appellant does not have the opportunity to drive such a vehicle again for the period

of 15 years. However, the destructive power of an ordinary motor car is also considerable. The courts, both civil and criminal, are only

too aware of the terrible injury and death inflicted by motor cars and the personal tragedy that so frequently attends upon the

accidents caused thereby. Anything like the recklessness and irresponsibility of the appellant demonstrated herein in the use of an

ordinary motor car would be just as likely to inflict upon another person and family the same kind of terrible tragedy that was inflicted

upon Mr. O’Driscoll and his family in this case.

47. The appeal must be dismissed.