Director of Public Prosecutions v Dudek [2020] IECA 12 (20 January 2020)

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Judgment of the Court (ex tempore) delivered on the 20th day of January 2020 by Mr.

1. The appellant pleaded guilty to one count of dangerous driving causing serious bodily

harm contrary to section 53 of the Road Traffic Act, 1961 as inserted by s.4 of the Road

Traffic Act no. 2, 2011. He was sentenced to a period of three years’ imprisonment, the

final two years of which was suspended for a period of five years. He was disqualified

from driving for a period of ten years, and he appeals the disqualification aspect only of

2. The evidence was heard on the 14th November, 2017. The evidence was given on a so-

called “agreed facts” basis because what might be described as cognate offences had

occurred, and in particular, the appellant had not remained at the scene of the accident

as he was required to do, and he had failed also thereafter to report the accident.

3. On the 8th of December, 2016 at about 6.30p.m. Gardaí were notified of the accident, in

the course of which the pedestrian, the injured party, Mr. Miska was knocked down and

suffered very serious injuries. It was dark at the time, the weather was dry, but the road

surface was wet. The appellant’s vehicle mounted a kerb, struck a heavy steel barrier

that was in place in front of the entrance of a playground, and this in turn struck the

4. As previously stated, the appellant did not remain at the scene, and in particular he did

not assist the injured party. He made contact with the Gardaí the next day. He was

arrested and interviewed. He outlined his version of events which was to the effect that

he had been working between seven in the morning and five in the afternoon and that

when he finished work he went to a garage to obtain petrol and bought some items there.

“Driving when a cat entered the road and myself trying to avoid hitting him, I

skidded on the road; it was very slippy, this pedestrian was on the footpath, it was

“I can’t turn back time, I am extremely sorry. I panicked. I can’t find explanation.

The other person got injured but I didn’t mean to. My friend got seriously harmed

His explanation for leaving the scene was that he was in shock. Mr. Miska was working in

5. The appellant is a Polish national. He has been a full-time employee at Kepak meat plant

since 2011, the year which he came to Ireland, although that business has now closed.

He expressed his concerns regarding his partner and a daughter in terms of the

consequences of the punishment or disqualification which might be imposed upon him.

He referred to the fact that he lives some three to four kilometres from his work, or did at

6. The Victim Impact Statement of Mr. Miska described his mental and physical difficulties as

a consequence of the accident. In particular, he received extensive surgery on more than

one occasion. His leg had to be placed in a brace and severe injury was suffered to his

legs apart altogether from very significant psychological adverse sequelae.

7. The appellant submits that a consequential order only arises where the court decides,

subject to the mandatory provision, (disqualification for four years) in the light of the

evidence, that the person is unfit to exercise the privilege of driving.

8. The court is required to determine what period of disqualification will be appropriate,

having assessed the suitability of the person to drive and in that regard, reference is

made to a number of authorities, including Conroy v The Attorney General [1965] I.R.

9. It was submitted on behalf of the appellant that the judge erred in law and in fact in his

conclusion in relation to what was or were not aggravating factors in terms of the driving

as well as the speed and the evidence of alcohol. It was also submitted that there was no

evidence of alcohol consumption. It was further submitted that the appellant had no

previous convictions, and that the ten-year disqualification imposed extreme hardship on

him and his family, and that of ten years was effectively imposed as an additional

punishment rather than on the basis of an assessment of the unsuitability of the appellant

10. In response, the respondent submits the sentencing judge adopted the correct approach

and that in light of the aggravating factors in the case, and in particular the appellant’s

failure to remain at the scene, and the fact that he did not report the accident until the

next day, apart altogether from the nature of the driving and his failure to assist the

injured party, there was a correct identification of all relevant factors and that the

11. It was further submitted on behalf of the State that the sentencing judge imposed a

disqualification order which was legally permissible and within the permitted range, and

further that the sentence as a whole taken in its totality was not disproportionate.

12. The judge was entitled to conclude that the protection of the public rendered a significant

period of disqualification appropriate beyond the statutory minimum. Certainly, he was

entitled to take into account the appellant’s conduct in leaving the scene, his failure to

assist the victim, and his failure to report the accident the incidental personal adverse

circumstances including consequences for family life as here, obviously in the ordinary

course of events arise when consequential disqualification orders are applied, so they are

13. A court must balance these against that necessity to protect the public, having regard to

the nature of the driving, both manifested at the scene and otherwise. It seems to us

that one of the principal factors which must guide a court in deciding on the relevant

period of disqualification is the history of driving of a party, with particular reference to

14. Here, there was no suggestion of prior offending which might have afforded a guide as to

how the appellant drove generally, and in particular how he might do so in the future.

We think that the judge did not have a sufficient evidential basis for concluding that a

disqualification for a period of ten years was necessary and we think that he thereby fell

15. We therefore quash that portion of the order of the Circuit Court insofar as it deals with

disqualification and substitute a disqualification order for the lesser period of six years.

Result: Allow and Vary

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