THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Edwards J.
10CJA/15
The People at the Suit of the Director of Public Prosecutions
Appellant
Respondent
Judgment of the Court delivered on the 16th day of November 2015 by
Mr. Justice Birmingham
1. This is an application brought by the Director of Public Prosecutions pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency of a sentence imposed on the respondent on the 18th December, 2014 in respect of the offence of dangerous driving causing death. The sentence sought to be reviewed is one of four years imprisonment with two suspended and there was also a disqualification from driving for a period of ten years ordered. The proceedings in the Circuit Court, and now the proceedings on this application for a review, have their origin in a horrendous road traffic accident that occurred on the 11th July, 2010 on the road between Clonmany and Buncrana in Co. Donegal.
2. In that fatal car crash, eight people, seven of them occupants of the car that was being driven by the respondent Shaun Kelly, lost their lives, as well as the driver of another car that was being driven in the opposite direction to the car driven by Shaun Kelly. It is understood that the number of fatalities that occurred in this incident is the greatest number in any car crash in the history of the State.
3. The jurisprudence applicable to cases where a review of sentence on grounds of undue leniency is sought are, at this stage, well known can be traced back to the first reported such case, the case of The People v. Byrne [1995] 1 ILRM 279. That case and many subsequent cases have made clear that when considering an application to adjust a sentence on the grounds of undue leniency that the reviewing Court should afford great weight to the trial judge’s reasons for imposing sentence and that nothing but a substantial departure from what would be regarded as an appropriate sentence would justify an intervention.
4. The grounds of application as set out in the Notice of Application for Review are as follows:-
Grounds of application:
1. The learned sentencing judge erred in principle in imposing an unduly lenient sentence in all the circumstances, being a sentence of four years imprisonment with the final two years suspended and a consequential disqualification from driving for a period of ten years.
2. The learned sentencing judge erred in failing to attach appropriate weight to the aggravating factors in the case. In particular, the learned sentencing judge failed to have appropriate regard to the following factors:
• The fact that the accused had a previous conviction for dangerous driving and the circumstances of that conviction.
• The fact that the evidence established a prolonged, persistent and deliberate course of very bad driving. This included driving at speed for a prolonged period prior to the collision, veering over the white line, overtaking in a dangerous manner, ignoring the warning of another motorist and approaching a corner at speed.
• The fact that the dangerous driving caused multiple fatalities, namely the death of seven passengers in the accused’s vehicle and the driver of an oncoming vehicle and the effects of the offence on their families.
• The deliberate endangerment of other motorists and in particular Ms. Anne McGilloway.
• The overloading of the vehicle, a Volkswagen Passat, with eight occupants, none of whom were wearing seat belts and the failure to adjust his driving accordingly to minimise any risk to the occupants of the vehicle.
• The fact that the respondent was a professional driver, being a lorry driver and should have been acutely aware of the need to behave responsibly on the road.
3. That the sentencing judge erred in attaching undue weight to mitigating factors in the case and in particular to the personal factors relating to the accused.
4. The learned sentencing judge erred in law and in fact in failing to have regard to the range of sentences appropriate to such offences in his approach to sentencing. The learned sentencing judge erred in fact and in law, firstly in determining that seven years was the appropriate place on the spectrum of seriousness of offences of this kind and then by reducing that sentence of seven years to one of four years with the last two years suspended.
5. The learned sentencing judge erred in law and in fact in failing to have any regard to s. 29 of the Criminal Justice Act 1999, and gave excessive credit for the guilty plea and did not give due weight to the timing of the plea, tendered on the morning of the trial after the jury was selected, and the circumstances in which it arose. The learned sentencing judge attached too much weight to the fact that engineering investigations were carried out on behalf of the accused in circumstances where the results of those investigations were known to him well in advance of the trial date. Up to the guilty plea the accused was prepared to run a technical case based on engineering evidence suggesting that an oncoming motorist was to blame.
6. The learned sentencing judge further failed to take into account the fact that the accused had pursued, and abandoned, a fitness to be tried application despite the evidence strongly indicating that the level of his incapacity was not as claimed.
7. The long delays attributable to the accused added to the distress of at least some of the bereaved families. The plea of guilty at such a late stage did not merit any great degree of mitigation.
8. The learned sentencing judge erred in failing to sufficiently incorporate elements of general deterrence in the sentence, having regard to the maximum sentence prescribed by the Oireachtas for the offence and the disqualification period. Deterrence is an important consideration in dealing with road traffic offences and is essential in maintaining public confidence in the administration of justice.
Maximum sentence
5. The maximum sentence provided for by statute was one of ten years imprisonment. Of note is that the sentence had been increased in 1994 by the Oireachtas from five years to ten years. A similar legislative change to the maximum sentence applicable occurred in Northern Ireland. In the case of R. v. Sloan [1998] NI 58, the Court of Appeal there observed as follows:-
“The maximum sentence is one of 10 years imprisonment which is double that provided under the earlier equivalent legislation . . . This substantial increase from 5 to 10 years was Parliament's response to the growing carnage on the roads due to dangerous driving (previously described as reckless) which in turn is often due to excessive speed or driving when under the influence of drink or drugs. In taking this course Parliament was itself responding to a growing volume of complaints by members of the public whose friends and relatives were being killed or injured in increasing numbers on the roads. In their turn the courts have been ready to play their part in trying to make the roads a safer place by imposing sentences which reflect the culpability of the driving and as was said by Roch L.J. in AG’s Ref (No 30 of 1995) [1996] 1 Cr.App.R(S) 364 at 367 a proper sentence ‘must now have in it elements of retribution and deterrence’”.
6. The basic facts surrounding this offence in which Paul Doherty, Eamon McDaid, James McEleaney, Damien McLoughlin, Mark McLoughlin, Patrick McLoughlin and Ciarán Sweeney, all of whom were passengers in the vehicle driven by Mr. Kelly, and Mr. Hugh Friel, the driver of an oncoming vehicle, lost their lives may be stated briefly. The offence occurred on the 11th July, 2010. That was World Cup final night and a group of people that included the respondent, Mr. Kelly, and a number of friends of his were watching the match in a bar in Clonmany, Co. Donegal. They left the premises at around 10.30 pm. It is worth noting that there is no suggestion that alcohol played a part in this incident.
7. After the match, Mr. Kelly got into his motor car, which was a black Volkswagen Passat, as did the seven young men that have been named. There was evidence of what was described as “high spirits” in Clonmany with an amount of shouting and roaring and people getting in and out of the car. Seat belts were not used and indeed the belts in the front of the car were buckled down between the driver’s seat and passenger seat, presumably to stop the warning beeping from activating. There was evidence that the car sped out of Clonmany at high speed with a good deal of noise, screeching of tyres and a smell of burning rubber. The vehicle was then driven approximately 5.5 km in the direction of Buncrana. At this stage it was dusk and the light was failing.
8. There were a number of witnesses on the book of evidence to describe what happened next. Their statements of evidence were summarised at the sentence hearing. A Mr. James Gallagher and his wife Paula were travelling on the road from Clonmany to Buncrana in the direction of Buncrana. Mr. Gallagher described that very shortly after coming out of a bend of sorts and onto a straight stretch of road that he saw a car in his rear view mirror approaching from behind at high speed. The car had dimmed headlights and either spotlights or foglights on below them. It drove at speed very close up behind them before pulling out to overtake in what was described as a jerky fashion and according to Mr. Gallagher the overtaking car then pulled off as fast as it could in a reckless fashion. Mr. Gallagher’s statement indicated that he flashed his headlights as he thought to himself that if the driver did not slow down, that he was going to kill someone. In response to the warning flashing lights, the driver of the car that had overtaken put on his left, then right and then left indicator in quick succession as he pulled away very quickly. Mrs. Gallagher was of the view that the overtaking vehicle nearly lost control to the extent of going into a ditch.
9. Another car that was on the road and close to the scene was one driven by Mrs. McGilloway who was travelling from Buncrana towards Clonmany i.e. in the opposite direction to the vehicles driven by the respondent and by Mr. Gallagher. Ms. McGilloway was coming from a bingo session. At a point perhaps a mile distant from the point of collision, she had overtaken a fellow bingo player, the late Mr. Friel. She explained that she had decided not to pull too far in front of Mr. Friel as she was concerned always about driving alone and perhaps getting a flat tyre or something. She then described seeing a big black car coming around a bend towards her from the Clonmany direction driven terribly fast. The car had come over the white line onto her side of the road. She describes seeing the driver of the black car turning the steering wheel to try and pull the car back onto its correct side of the road. At one stage she thought that the oncoming vehicle was going to miss her, but the next thing she remembered was a loud bang and the air bags activated. She managed to stop her car and with some difficulty get out.
10. The evidence adduced by the prosecution in the summary of the facts was that the rear of the black car driven by Mr. Kelly “fishtailed” into Mrs. McGilloway’s car causing damage to it, dislodging the wheel of Mrs. McGilloway’s car, the front driver’s wheel, so that she then crossed for a period of time onto the incorrect side of the road before moving back to her correct side of the road. The accused lost control of the car that he was driving completely. It went on to the incorrect side of the road turning in a clockwise direction. The car collided in what would appear to have been a 90 degree angle with the front of a Toyota Corolla car driven by the late Mr. Hugh Friel, pushing that car approximately eighteen metres backwards. The car driven by Mr. Kelly then went into a ditch on its incorrect side of the road demolishing a telegraph pole in the process. As a result of that terrible collision, Mr. Friel died instantly, and all of the occupants of the car driven by Mr. Kelly, other than Mr. Kelly himself, also died. Mr Shaun Kelly suffered significant injuries.
11. Mr. Hugh Friel, the driver of the oncoming vehicle, was a middle aged gentleman and those killed in the vehicle driven by Mr. Kelly were all young men between nineteen and their mid-twenties. All of those who lost their lives in this incident were pronounced dead at the scene.
12. Insofar as the background and circumstances of Mr. Kelly are concerned, he was born on the 11th November, 1988, he was 21 years old at the time of the offence and he was 26 years at the time that the court came to impose sentence. He was a lorry driver, driving both for his father’s company and also for other companies at different times.
13. He had two previous convictions. One for dangerous driving, which was recorded on the 26th June, 2007, arising out of an incident on the 14th January, 2007. The incident in question took place on the beach in Lisfannon. He and a number of friends were down on the beach in their cars. A garda patrol car went to investigate, and Mr. Kelly was the second vehicle in a row of five vehicles and went to overtake another car at a blind bend, almost colliding with the patrol car. A fine of €1,000 was imposed in respect of that offence. He was not disqualified from driving on that occasion. Then on the 10th May, 2012, Mr. Kelly was convicted of driving a vehicle with no rear registration plate on the 20th August, 2011. The relevance of the 20th August, 2011 offence is not so much the offence itself as the fact that Mr. Kelly was driving an articulated lorry drawing stones on that occasion and so it is of some relevance to the question of the capacity of Mr Kelly to cope in the aftermath of this incident. The sentencing court was also told that on the 15th May, 2011, he was stopped while driving a lorry at Main Street, Buncrana. The garda sergeant who stopped him on that occasion had thought that he was driving too fast for the area given that patrons were leaving nightclubs around that time, it being 2.40 am. Again, the significance is not whether the garda sergeant was correct in the view that he formed about the nature of Mr. Kelly’s driving, but the fact that he was driving at all at that particular time.
14. At the hearing, the judge heard from representatives, with one exception from a family member of each of the deceased. The victim impact reports were, as might be expected, harrowing. Mr. Anthony Friel, brother of the late Mr. Hugh Friel gave evidence of his anger that his brother, a 66 year old man, should have been wiped off the face of the earth in a split second. Mr. Friel when giving evidence explained that he was on medication and had planned suicide on occasions such was the impact of the tragedy on him.
15. Mr. Eamon Sweeney, the father of the late Ciarán Sweeney who died just short of his 20th birthday, explained that on the Sunday night of the crash, the lives of his family were changed forever. Notwithstanding that, speaking on behalf of his family members, he expressed the view that it was unfair that Shaun Kelly had been left to accept all the blame and that it was their wish that Shaun be given a chance in life. He told the sentencing judge that if Shaun was to be sent to jail, that it would make it harder for his family members and that was certainly not what they wanted.
16. Ms. Kate McLoughlin, a sister of Damien McLoughlin, a qualified joiner by occupation who died aged 21 years, addressed the court, explaining that Damien was the middle of five children residing with his parents and siblings in Buncrana. Again, she spoke of the fact that the lives of her family members had changed forever.
17. Ms. Aoife McLoughlin, a sister of PJ McLoughlin, also addressed the court. Mr. PJ McLoughlin was 21 years of age at the time of his untimely death. She commented that it was almost impossible to try and explain what the family were going through and the hurt that they carried in their heart each and every day. She observed that the manner in which the defence had met the case had made the grieving process much more difficult. The fact that the case was put back a number of times was an example of such difficulty, and she referred in particular to a fitness to plead hearing which did not proceed to a conclusion as a day that set the family “back miles”.
18. Mr. Robert McEleaney came forward to speak about the loss of his brother James McEleaney, aged 23 years. He had resided with his mother Philomena at Meenaduff, Clonmany, the house being very close indeed to the accident scene. Again, Mr. Eleaney spoke of the indescribable pain experienced by family members. It was with great generosity of spirit he spoke of the burden that was being carried by Shaun Kelly and said that as a family they did not wish for a term of imprisonment for the driver, while understanding and appreciating that that was not a matter for them to decide.
19. Mr. Felix Doherty spoke on behalf of the late Paul Doherty, who died just short of his 20th birthday. Paul Doherty was a first cousin of the respondent. He commented that there were no words to describe the loss of Paul and that the process and outcome would never bring closure. He added that he wanted to put forward for the record that they did not believe a prison sentence was needed, commenting that the accused was serving a life sentence.
20. Mr. Seamus McDaid, father of Eamon who died aged 22 years, also addressed the court. Again, he spoke of the devastating effect on him, on his wife and his other sons. Again, he told the sentencing judge that he would not like Shaun to be prosecuted, meaning by this imprisoned, as the judge clarified.
21. There was no formal victim impact statement or evidence in relation to Mark McLoughlin, but perhaps the comments of Roma McLoughlin were the most telling of all. She simply said “I cannot do a victim impact statement because nothing I could write could explain what it is like to lose your child”.
22. In the course of the sentence hearing, the defence called as a witness Dr. Mark Hogan, a senior clinical neuropsychologist from Donegal. He explained that Mr. Kelly was initially treated in Letterkenny Hospital, was then in UCG Hospital between September and October and was then at the National Rehabilitation Centre in Dublin from November to December 2010. Mr. Kelly also received treatment for facial injuries in St. James’s Hospital in Dublin. Dr. Hogan explained to the court that Mr. Kelly had suffered post traumatic amnesia. Mr. Kelly had indicated that he had no recall of the accident or indeed his initial period in hospital.
23. Dr. Hogan referred to the fact that Mr. Kelly was on medication Cymbalta, a mood stabiliser and anti-depressant. His overall assessment was that there had been a significant brain injury that had an impact on Mr. Kelly’s overall cognitive state and that it had also been complicated by his emotional state which had led to a range of day to day impairments and it was his view that those difficulties would persist into the future. There was also evidence that Mr. Kelly experienced a certain physical impairment on the left side. Dr. Hogan was cross-examined in some detail by counsel for the prosecution. From that exchange it emerges that while it was not in dispute between the parties that Mr. Shaun Kelly had suffered injuries, there was no agreement about the extent of those injuries or their impact.
24. Mr. Liam Kelly, father of Shaun Kelly, addressed the court during the sentencing hearing on behalf of his wife and his children. In the course of those remarks, he commented that he wanted from the bottom of their hearts to thank the families of the car passengers for being so courteous and good to them and to Shaun over the past four years, adding that the families involved are friends and relations of theirs and that despite their loss they have given all of his family great comfort and support. In relation to the links between all the families involved as indicated, Paul Doherty was a first cousin of Shaun Kelly, while PJ McLoughlin was a second cousin. The McDaid and the Sweeney families in particular were close. The sister of Mr. Kelly was going out with Ciarán Sweeney at the time of the accident, while Mr. Kelly’s cousin Natalie was due to marry Eamon McDaid’s brother shortly after the sentence hearing.
25. Defence counsel identified the mitigating factors as being the fact that the defendant had pleaded, albeit at a late stage, and by pleading had saved the court from what could have been a very difficult and long trial and that he should be given credit for that. Counsel noted that the accused suffered a brain injury and memory loss and made the point that, in trying to advise a client in that situation, the defence is going to have to try and investigate the accident on their own account. He further submitted that there was unlikely to be a repetition of the conduct, he submitted that that drink was not a factor, that his client’s life had been blighted and referred in particular to the attitude taken by the families of the deceased, making the point that it was not the situation, as apparently had been suggested by some media reports, that the families were divided.
The judge’s sentencing remarks.
26. The judge referred to the fact that this was a terrible, terrible tragedy and the fact that the consequences for the community in Clonmany were insurmountable and beyond description. He referred to the effect that an accident on this scale would have had on members of the emergency services called to the scene and he referred to a recent series of articles by Peter Murtagh of the Irish Times about the ripple effects of serious car accidents.
27. In dealing with the facts of the incident he commented that as far as Mr. Kelly was concerned, drink was not a factor. He referred to horse-play and getting in and out of the Passat car, a car designed to carry five people but was carrying more. The judge in fact referred to it as having seven people in it, but as we know there were eight occupants of the car. He referred to the fact that the car took off at speed with the sound of screeching tyres and the smell of rubber. He referred to the fact that seat belts were not worn and that those in the front at least had been disabled. The judge mentioned the fact that the car was observed some way out of Clonmany on the road to Buncrana driving at a high speed, and he referenced the evidence of Mr. Gallagher and Mrs. MacGilloway.
28. Having summarised the facts he then commented:-
“The maximum penalties in this case are ten years imprisonment, a fine and disqualification at the discretion of the judge from driving. I want to point out to the families that have been bereaved in this case something that is very important. It is important for me and it is important for you to understand it. Tragic as this is and it is tragic, it is not for me to take revenge on Mr. Kelly for what he did and don’t expect me to because I won’t. A number of cases have been decided which were set out to me for the purposes of helping me in deciding a case such as this, i.e. in deciding what the level of penalty should be.”
29. At that stage he referred to the cases of DPP v. Sheedy [2000] 2 I.R. 184 and DPP v. Shovlin [2009] IECCA 44. He then continued:-
“So I will start with the aggravating factors, Mr. McGonigle (Senior Counsel for the defendant) has very fairly set out what he believes to be the aggravating factors and I agree with him. The first aggravating factor is of course the multiple deaths, eight people stone dead, young people. Mr. Friel was a little bit older, but he was a man driving along the road minding his own business, coming back from bingo or whatever. But eight young people - or seven young people have died. Tragic, but an aggravating factor nonetheless bearing in mind the nature of the dangerous driving. And that’s the next thing, the manner of the dangerous driving. I have read out what Mr. Gallagher witnessed, what the lady in the car coming opposite witnessed and what a bystander on the road witnessed and what somebody witnessed at the actual pub itself, namely the screeching of tyres and the smell of rubber. Mr. Gallagher was horrified by the manner in which this car had overtaken him and quite clearly I think from a common sense point of view, it’s quite clear that the car was overloaded and when he tried to manoeuvre the car, it went out of control and experienced as he might have been as a driver, he wasn’t able to handle it. So the manner of the dangerous driving and I have described the manner of the dangerous driving in my summary of the facts and what people have said and it is an incident of dangerous driving of a serious nature.
The previous convictions, particularly the antics on the beach at Liscannon on the 26th June, 2007, which on my calculation Mr. Kelly was eighteen years of age when that went on and there were five vehicles including the vehicle of Mr. Kelly and there was nearly a collision with a squad car. He was charged with dangerous driving and convicted at approximately, on my calculations, eighteen years of age. So his ability to know what was dangerous and what was safe must have been known to him. However, his previous convictions in my view are an aggravating factor in this case. There was also the previous conviction to various plates and the like; I am not paying that much attention to that. I am more paying attention to the incident in Liscannon. And finally the overloading of the car; I mentioned it before, I mention it again. He must have known that there were too many people in this car and it would appear that everybody was in high spirits. By saying that, I am not in any way suggesting the Mr. Kelly had anything to do with drink, but the people that were in the car, well certainly they would appear to be in high spirits, whether they were excited over the match or whatever, I’m not saying whether there was alcohol involved or whatever it is but they were apparently in high spirits because they were laughing and joking and hopping in and out of the car and doing all that. So they are the aggravating factors.”
30. The judge then turned to the mitigating circumstances in the case and he did so in these terms:-
“So for every aggravating factor, there’s always a mitigating factor and many in this case. First of all, his plea of guilty to the charge. It is a most serious charge. I pay no attention to the fact that it wasn’t entered until I think it was in Donegal some months ago. As far as I’m concerned this plea was entered as soon as was practicable. He was entitled to look in - he has no memory of the accident, all he can rely on are the witness statements that were served on him - the witness statement served on him and a book of evidence and get some engineering advice and get all sorts of other advice concerned with a view to finding out whether or not he should face up to this charge and plead guilty or whether he should fight it. I don’t believe that his plea was entered any later than was necessary at the time and I take that on board. The injuries suffered by him are backed up by the medical reports and the probation report and oral evidence of Dr. Hogan. As Mr. Owens has said, nobody doubts that he suffered injuries in the form of a trauma to the brain and some physical injuries; nobody doubts that that is so and they were serious, they caused him to go to the rehabilitation clinic, I think it is in Rochestown Avenue. It is a very eminent institution for putting people right after car accidents and other sporting accidents and the like or various serious traumatic injuries and it is agreed by all parties that he has suffered some cognitive impairment as a result of a brain injury. There is disagreement as to the seriousness of that. It is not really in dispute that he is suffering from stress and depression and that he finds a difficulty in adjusting himself to life in the present circumstances and he is under the care of a psychiatrist, Dr. Haley and he had prescribed medication for him to look after the same. The difficulty that arises relative to his ability to cope is the fact that the State has indicated that he has an ability to drive, he has done CPC courses, he has achieved a level of driving such as involves complex operations, delay in driving at all or indeed in organising things like tacographs and things like loads and paperworks that might be involved and the like. He has exhibited an ability after this accident of being able to do that. Now there is not actual evidence of that, but it was put to Dr. Hogan that it would appear that he was able to do that and Dr. Hogan did not disagree and Dr. Hogan, all he can say is that the reason why he is able to do these things is because he is so good a driver that it is almost, it is like an automaton that he would be able to drive well and drive a lorry well and that therefore he does not have to actually learn or retrain to drive again because he is so good at driving.
The other point that is raised, and it is a very serious mitigating factor, and that is the effect that it has had on him. He has sentenced himself, he has sentenced himself to a life sentence no less than the bereaved have a life sentence in the losing of their loved ones, but he has sentenced himself to life of having to live with this, every single waking day of his life, he has to remember that this happened and whether he remembers it or how it happened or where it happened or anything like that, he has to live with that for the rest of his life. That is a serious matter which I must take into account. I must take into account the effect that it has had on the community. I have heard the victim impact reports from each of the families and generally they are all very supportive of the Kelly family and as has been mentioned by Mr. McGonigle there is no split camp here. It appears to me on the evidence before me that the community are together. They are very sorry for what happened, they are extremely devastated about what happened, but they are not out for blood, they are not out for revenge as I said earlier.”
31. The judge referred to a number of references that had been handed in from builders’ providers and haulage companies as well as former teachers, all of whom spoke highly of Shaun Kelly. The judge identified another factor to be taken into account in the case was the media attention to the trial. The judge then came to the concluding and operative part of the sentence which was in these terms:
“Now, the most difficult task of all, what to do? If Mr. Kelly had been convicted by a jury of this particular offence, I think that a sentence in the order of seven years might have been contemplated. I am told in the probation and welfare report that he is suitable for community service, in other words, ‘that despite the fact that you may sentence him to a period of imprisonment, that you would substitute a period of community service or a number of hours community service in lieu of that prison sentence’. I could sentence him to a period of imprisonment and suspend it on his entering into a bond etc. to keep the peace for a period of years and of course I could fine him. I have considered these options and it is with regret I am not taking up any of them. I am not going to impose a community service order. I am not going to impose a suspended sentence. The sentence I am going to impose in this case is a period in custody and I believe in all the circumstances of the case, despite the pleas of the neighbours and the like who are very supportive of the Kelly family, I believe that this accident and the manner in which it has happened would attract and does attract a period of four years imprisonment and I suspend the last two years of that sentence and I am disqualifying him from driving for a period of ten years.”
32. In contending that the sentence was unduly lenient, the Director takes issue with a number of aspects of the sentencing judge’s approach. She says that the plea of guilty in this case was not a significant mitigating factor, that it was entered at the last possible opportunity, immediately before the commencement of the trial and in circumstances where the disclosed material indicated that a technical case which sought to blame Ms. McGilloway for the collision was to be put forward. It is said that there was no basis whatsoever for the judge’s conclusion that this was a plea that was entered as soon as was practical or one that was entered any later than was necessary.
33. The Director points out that the respondent had the book of evidence since 2012 and was aware of the strength of the prosecution case. It was pointed out that the Chief State Solicitor in Donegal had taken the somewhat unusual step of writing to the solicitors for the respondent drawing attention to the provisions of s. 29 of the Criminal Justice Act 1999, with its focus on the time and circumstances in which a plea was entered. In particular is it said on behalf of the Director, that there was no substance or merit in the Fitness to Plead issue and the attention of the court was drawn to the observations in that regard or Aoife McLoughlin speaking on behalf of the family of the late PJ McLoughlin. This was a reference to the fact that, in late 2014, the defence indicated an intention to make a case based on the respondent’s unfitness to stand trial as well as intention to rely on engineering evidence and that this caused the prosecution to respond by assembling further evidence on both issues. The Director accepts that in the situation where the accused had no memory of the incident that it was understandable and indeed appropriate for the defence to conduct its own inquiries in the circumstances of the collision. However, even making full allowance for that, it is said that this plea could not be regarded as a timely one.
34. The Director says that these were tactical decisions taken by the defence which undermined the subsequent plea to the extent that he was not entitled to any significant discount in respect of a guilty plea at “the door of the court”.
35. On behalf of the applicant it is also said that the lateness of the plea goes to the issue of remorse. It is accepted that there was evidence of remorse as referred to in the probation report that was prepared following the guilty plea, but it is said that remorse involves an acknowledgment of guilt and responsibility and that is best evidenced by a timely guilty plea.
36. Both at the sentence hearing and before this Court there has been reference to the cases of The People v. Sheedy and The People v. Shovlin as offering assistance in identifying factors that can be regarded as aggravating or mitigating. The Director says that in this case, there were factors present which indicated a high level of culpability on the part of the offender and a very large degree of harm indeed caused by the offence. She points to the respondent being aware of the risks that he was taking. He was driving an overloaded car in which none of the passengers were restrained by seat belts. He drove at speed and in what is described as an aggressive and erratic manner. Though young, he was nonetheless an experienced driver with a special driving qualification and the risks associated with his manner of driving must have been obvious to him. No heed was taken of the actions of Mr. Gallagher in flashing a warning. The Director points also to the previous conviction for dangerous driving which had been dealt with in a lenient manner by the courts.
37. The Director draws attention to the English sentencing guidelines and says some assistance is provided by them. She points out that listed among the determinance of seriousness in the English guidelines are (i) the offender’s awareness of risk (eg. typified by a prolonged, persistent and deliberate course of bad driving), (ii) whether the offender was driving at an inappropriate speed, and (iii) whether the offender behaved in a seriously culpable manner. The English guidelines identify as a possible mitigating factor that the offender was seriously injured in the collision, but they qualify this by pointing out that the greater the driver’s fault, the less will be the mitigating effect of the fact that he himself was also injured. The guidelines also identify as a possible mitigating factor that the victim was a close friend or relative, but again this is qualified by stating that the greater the driver’s fault, the less will be the mitigating effect of the fact that the victim was a relative or friend.
38. In essence the Director’s complaint is not that the sentencing judge failed to identify the aggravating factors, or that, save for the criticism made of treating the plea of guilty as an early plea, he regarded as mitigating factors matters that could not inure to the benefit of the accused, but rather that the weighing exercise in which the judge was required to engage was seriously deficient.
39. Obviously this is an appalling case. The culpability was very high. This was not a case of a single act of dangerous driving such as taking a bend at too great a speed or overtaking when it was not safe to do so. Rather this was a case of sustained dangerous driving. The consequences of the sustained dangerous driving were enormous, involving the greatest loss of life in a road traffic collision in the history of the State. The driver who was involved had a previous conviction for dangerous driving. The combination of these factors meant that had the case been contested and resulted in a conviction that a sentencing court would have had to consider a sentence close to if not quite at the statutory maximum. However, this was not a case that was contested and ended in a conviction and there are factors present which have to be weighed in the balance. The accused pleaded guilty and was entitled to some limited credit for that plea. A plea of guilty is always of some value and will normally result in a sentence being imposed less than would have been imposed following a conviction after a contested trial. This Court cannot agree though with the sentencing judge that a plea of guilty entered after the jury was sworn can be regarded as an early plea. The respondent displayed remorse and there is no doubt that he will have to bear a lifelong burden arising from his actions on the evening in question. A further factor that required consideration was that a number of the families of the deceased were expressing the view that they did not want to see Mr. Kelly go to jail. This is not an easy issue to deal with. There must be many cases where the victim of a crime would like to see the perpetrator receive an exemplary sentence. But our system does not permit the victim to advocate for that. Is the situation different where victims are advocating leniency? The question is a particularly sensitive one where there are multiple victims. In this case, the representatives of a number of families of deceased with extraordinary generosity expressed the view that they did not wish to see Mr. Kelly go to jail. Representatives of other families were silent on this issue. The family of the late Hugh Friel, who was not connected with the driver or occupants of the oncoming car that crashed into him, is in a separate position. This Court is of the view that this was a prosecution brought in the name of the people of Ireland by the Director of Public Prosecutions and that the views of family members cannot be decisive when it comes to determining a sentence. That is not to say that the attitude of the families and in particular the specific statement by Eamon Sweeney, father of the late Ciarán Sweeney, that a jail sentence would make it harder for his family is to be entirely ignored. The views expressed militate against the imposition of an exemplary sentence.
40. In this case the sentencing judge indicated that he was taking as a starting point the fact that had there been a conviction following a contested trial that he would have been considering a sentence of seven years imprisonment. In the view of the Court, a sentence of seven years imprisonment would in those circumstances be the very minimum that could be contemplated and a sentence somewhat in excess of that would be more appropriate in that situation.
41. Having identified seven years as his starting point, the judge then mitigated the sentence to one of four years and then proceeded to suspend the final two years of that four years. As the Court has already indicated there were factors present justified, indeed required, a sentence lower than the one identified as appropriate in the case of a conviction following trial, but the double discounting that occurred here from seven years to four years and then from four years to two years was not justified, and amounts to an error in principle. The Court agrees with the submissions of the Director that the judge erred when he came to weigh the significance of the factors which he felt proper to consider. Accordingly, the Court considers that the sentence imposed in the Circuit Court represented a substantial departure from what would be appropriate in such a case, and therefore must be set aside as unduly lenient.
