Thursday 29 September 2016

Man whose dangerous driving caused deaths of eight people to be resentenced - Court of Appeal finds two-year jail term to be 'unduly lenient'

Published 16/11/2015 | 11:55

The two year jail term imposed on a man whose dangerous driving caused the death of eight people in Donegal five years ago was “unduly lenient”, the Court of Apeal has found.

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Shaun Kelly (27), of Hill Road, Ballymagan, Buncrana, Co Donegal, had pleaded guilty at Letterkenny Circuit Criminal Court to dangerous driving causing the death of eight men on a road between Clonmany and Buncrana on July 11 2010.

He was sentenced to four years imprisonment with the final two suspended by Judge John O'Hagan in December last. He was also disqualified from driving for ten years.

In October, the Director of Public Prosecutions sought a review of Kelly's sentence on grounds that it was “unduly lenient”.

Counsel for DPP, Úna Ní Raifeartaigh SC, told the Court of Appeal that it was the worst fatal collision and the worst case of dangerous driving in the history of the State.

Ms Ní Raifeartaigh said the sentence of four years imprisonment with two suspended did not reflect the gravity of Kelly's culpability and the harm that was actually caused.

Acceding to the Director's appliction this morning, the Court of Appeal found Kelly's sentence was “unduly lenient” and he is due to be resentenced by the court next month.

Giving the court's judgment, Mr Justice Goerge Birmingham said there were factors present in the case which “jusitified, indeed required” a sentence of lower than seven years.

However, the Circuit Court judge had erred in the “double discount” of mitigating the sentence from seven to four and suspending the final two years, Mr Justice Birmingham said.

He said the sentence represented a “substantial departure” from what would be appropriate.

He said Kelly was entitled to know “his fate” and the court hoped to be in a position to impose a new sentence on him on December 7 next.

Ms Ní Raifeartaigh said there was a prolonged period of “deliberate” dangerous driving and, driving the way he had on that night, it was “emanently forseeable” that there would be multiple fatalities.

She said a number of people had been drinking in a bar on the night in question although Kelly had not been drinking.

They were in high spirits having watched a World Cup game and seven passengers, some of whom were “roaring and shouting”, got intoKelly's car.

Any objective observer could have forseen the risks, Ms Ní Raifeartaigh said. The car was overloaded with seven passengers not wearing seatbelts.

Witnesses said that when the car took off its tyres screeched and sent out smoke.

The first witness remembered saying to himself at the time that Kelly was driving 'at a very high speed'.

Two other road users, the Gallaghers, described seeing Kelly approach them from behind at high speed. He was 'right up my arse', one of them said.

Having overtaken them, the Gallaghers recalled flashing their lights at Kelly and saying to themselves 'if you don't slow down you're going to kill someone'.

It was a clear warning, Ms Ní Raifeartaigh said, but Kelly's response was to ignore or “perhaps mock” them.

Another motorist driving in the oncoming direction to Kelly, a Ms McGilloway, said she was coming around some bends when she saw a big black car crossing the white line and thought 'Oh my God'

Kelly hit the side of her car before hitting the deceased Mr Friel's car behind her.

Ms Ní Raifeartaigh submitted that the trial judge erred in treating Kelly's guilty plea on the day of the trial as an early plea.

It was “inexplicable” as to why he took that view, she said.

Even the defence themselves did not suggest Kelly's plea was early, Ms Ní Raifeartaigh said.

The court heard that Kelly's lawyers had initiated fitness to plead proceedings but subsequently withdrew from that course of action.

The prosecution accepted that Kelly suffered a head injury in the collision but it wasn't as significant as had been portrayed by the defence, she said.

Within a year of the collision, she said Kelly was driving. He was stopped by gardaí in May and August of 2011 and on one of those occasions he had been driving at speed, Ms Ní Raifeartaigh said.

Furthermore, he was working throughout the period and “not all of these facts were being brought to the attention of his doctor”.

She said Kelly was culpable to a high degree.

He left school at 15 and had been working as a professional lorry driver. “Of all people he should have been aware of the dangers of driving badly,” she said.

Furthermore, he had a previous conviction for dangerous driving.

On that occasion, he had almost rammed a patrol car, she said.

Ms Ní Raifeartaigh said there was a range of views contained in the victim impact evidence.

It cut both ways, she said, and the judge may have been influenced by some of the views expressed by the bereaved.

She said Kelly's sentence was “unduly lenient” in all the circumstances, not just the term of imprisonment but the 10 year disqualification from driving also.

Counsel for Kelly, Eoin McGonigal SC, said Kelly's sentence should not be interfered with.

Mr McGonigal said the sentencing judge took on board the points made in relation to Kelly's culpability, his remorse, brain injury and the nature of the deaths in the community and there was nothing missing from his consideration as to what the appropriate sentence should be.

It was a “monumental tragedy”, Mr McGonigal said, and remained so to all of those in the Clonmany community. That was a factor the judge took into account.

He said Judge O'Hagan was in the best place to decide the case on its facts because it happened in his district.

“He knew this case” and took an interest to the extent that he was able to refer to media reports, to the gardaí and ambulance men who came upon the scene.

He clearly had regard to the aggravating factors and missed “none”, Mr McGonigal said. Equally he had regard to all the mitigating factors

Judge O'Hagan was responsible for managing the case through the Circuit Court which enabled him to say the plea came as soon as was practical, Mr McGonigal said, and the only person best placed to judge the entering of the plea was the sentencing judge, he added.

Mr McGonigal said the tragedy in this case was that rehabilitation would not start until the appeal and the inquest were dealt with.

Even then, whatever period of time Kelly spends in jail, his homecoming would reawaken the case for everybody.

That's why there was benefit in what Judge O'Hagan did, he said.

Mr McGonigal said the prosecution made no submission to Judge O'Hagan that he should identify the appropriate starting point for the sentence and the prosecution were not allowed to raise that point now having not made it in the Circuit Court.

Mr Justice George Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said the court would reserve judgment and give it as soon as possible.

The court was conscious, Mr Justice Birmingham remarked, that a good deal of time had passed and people were seeking finality.

There were a large number of family members from both sides in court for the appeal.

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