THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Edwards J.
10CJA/15
In the matter of Section 2 of the Criminal Justice Act 1993
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court (ex tempore) delivered on the 7th day of December 2015 by
Mr. Justice Birmingham
1. Having regard to the seriousness and importance of the case, ordinarily this Court would be minded to reserve judgement and deliver a written judgment. However, in a situation and this was mentioned before lunch where we are conscious of the pressure that this case must be having on all concerned, on Mr. Kelly and his family, but also on the families of the victims and on a situation where we are clear as to the outcome, we have decided to give judgment today on an ex tempore basis.
2. In our judgment acceding to the DPP’s application for a review of the sentence on grounds of undue leniency, we referred to the facts giving rise to the prosecution and particularised the nature of the dangerous driving that occurred on the road from Clonmany to Buncrana on the 11th July, 2010 and set out the enormous consequences, the devastating consequences that flowed from it.
3. We will not repeat what we said on that occasion. We indicated in the course of that judgment that if there had been a conviction following a contested trial that a sentence close to, if not actually at the maximum sentence of ten years provided by statute would have to be considered. We indicated that a sentence of less than seven years could not be contemplated.
4. Having regard to the many aggravating factors present, the fact that this was a multiple fatality, that it was indeed the worse road traffic accident in the history of the State, that it involved prolonged persistent and deliberate course of very bad driving, driving at speed for a significant period pre collision, overtaking in a dangerous manner, failing to heed a warning from another motorist, the overcrowding of the vehicle which Mr. Kelly was driving, the fact that there was a previous conviction for dangerous driving arising out of an incident at Lisfarna Beach. The court would fix the sentence before mitigation at one of eight years imprisonment.
5. In doing so we have regard to the culpability which is very high and the harm caused which is enormous. In drawing attention to some of the aggravating factors present, we also acknowledge that there are aggravating factors that sometimes feature in these cases, such as driving a stolen vehicle, driving while disqualified, alcohol consumption, hit and run accidents to name but some which are absent in this case.
6. There are, it must be said immediately significant mitigating factors present to which there has to be regard. There is the youth of the respondent. There is the fact of the plea of guilty and we will turn to that in a moment.
7. The situation is that by statute a court is obliged to have regard to the time at which the plea of guilty is entered and the circumstances in which the plea of guilty is forthcoming. The effect of that is that an early plea will achieve greater credit than a late plea. However, in general any plea is of value and any plea will meet with a response from a sentencing court. The question of the extent of any reduction in sentence attributable to the plea is influenced by the time and circumstances. There is too the fact that Mr. Kelly sustained significant injuries leading to hospitalisation. There was some disagreement at the sentencing hearing as to just how serious, how long term that impact is, but it is certainly not something that can be minimised or ignored. There is the fact that it is clear that there is real remorse on the part of Mr. Kelly and that this incident effects and will continue to effect Mr. Kelly into the future.
8. One of the families in the course of a document handed up this morning refers to the fact that Mr. Kelly is now five and a half years into a life sentence. There is the attitude that has been taken by a number of the victims’ families, the families of the young men who lost their lives in this accident. They have been extraordinarily generous in their approach. In the earlier judgment we made the point that the attitude of victims to sentence cannot be a determinative one, but it clearly is a relevant consideration. There is the fact of testimonials from a number of figures in the community, former teachers, a General Practitioner, people involved in the builders providers area and the transport area, eleven testimonials in all. They all speak to Mr. Kelly’s character. They indicate that he is a person of generally good character, the previous conviction for dangerous driving notwithstanding.
9. The trial judge suspended two years of the sentence that he had decided to impose. In the court’s view, that would not be inappropriate and doing so would see the starting sentence of eight years reduced to one of six years and the court is certainly prepared to make provision for a suspension accordingly.
10. However, there are other matters which merit consideration. The court is conscious that when a sentence is increased and in particular when it is increased in respect of someone who is as it were, well into a sentence that they are serving and where there is a release date in sight that that is particularly burdensome, particularly stressful and particularly difficult to cope with.
11. In some other common law jurisdictions the phrase “double jeopardy” is used to describe that situation. This Court on occasions and appellate courts in other jurisdictions have responded to that and recognised that by imposing a sentence less than would have been imposed had it been dealing with the matter at first instance when the person before the court was first being sentenced.
12. In this circumstances recognising that the outcome must be a bitter disappointment for Mr. Kelly, the court will increase the portion of the sentence to be suspended from two years to three years and by extension reduce the period be served from eight to five years.
13. There is one final matter then that we will mention. We have already indicated that the court is obliged by statute to have regard to the time and the circumstances in which a plea of guilty is forthcoming. That was an issue that was addressed in some of the documents that were submitted to this Court this morning. It appears from that documentation that some at least of the families gathered in Letterkenny Courthouse for the case were disposed to encourage Mr. Kelly to contest the case. In those circumstances the court thinks that that is a highly relevant consideration when it comes to assessing the weight to be attached to the plea. For that reason the court proposes to further reduce the sentence from what we would have otherwise imposed.
14. Having regard to that new information that has come to light about the attitude of the families before the decision was taken to enter the plea and the information that was available to Mr. Kelly in that regard as to their attitude, the court will suspend a further year, thus increasing the suspended period to four years and the period to be served down from eight years to four years. Therefore the court will set aside the sentence of the Circuit Court and impose a sentence of eight years imprisonment, but will suspend the final four years, thus in effect doubling the period to be served. It will be a requirement that Mr. Kelly enter a bond in the sum of €100, to keep the peace and be of good behaviour during the remainder of his time in custody and for the period of four years following his release.
15. So far as the disqualification period is concerned, the court has considered whether to increase that, but has decided not to do so. It has decided not to do so in a situation where Mr. Kelly had been earning his living in the transport area and must have felt that that was where his future lay. The court is conscious of the fact that he is from a rural county and a very large rural county indeed, where distances are very significant and we feel that to increase the disqualification period significantly might in fact hamper rehabilitation and might make it more difficult for Mr. Kelly to take a position as a responsible member of society in the future which is what everybody would hope to see happen. Eight years with four suspended to date from the day he first went into custody.
