A Supreme Court justice has said a sentence for careless driving causing death or serious harm should reflect how blameworthy the driving was, as well as its consequences.
In a concurring judgment dated 15 June 2017, Mr Justice Clarke said he fully agreed with the judgment of Ms Justice O’Malley on the resolution of the appeal and her reasoning. His own observations were obiter: he said they did not affect the appeal’s proper resolution. The supplied judgment does not state the appeal’s outcome or the order made by the court.
Justice Clarke said the offence of careless driving causing death or serious bodily harm covers a spectrum, from conduct just above driving without reasonable consideration to conduct close to dangerous driving. He said where the driving falls on that spectrum should be central to a sentencing judge’s assessment of culpability.
The consequences of an offence can be relevant to sentencing, he said, but should not determine punishment to the exclusion of other factors. Justice Clarke added that, all else being equal, he would find it difficult to see how a custodial sentence could be justified for a case at the bottom end of the careless-driving spectrum without aggravating or other unusual factors.
The judgment also discussed whether offences might be created for serious failures to meet reasonable standards in areas such as workplace safety. Justice Clarke said it was arguable that the Oireachtas could make such failures criminal, but suggested serious offences for general failures of care might face constitutional limits. He said proportionality between the importance of the activity, the risks of failing to take proper care and the maximum sentence might be required.
He stressed that these broader questions did not need to be resolved to decide the appeal. The judgment provided is Justice Clarke’s concurring opinion and refers to Justice O’Malley’s separate judgment; that separate judgment and the court’s formal disposition are not included in the supplied source.