Drink driver who was five times over the limit when he killed pensioner jailed on appeal
A drink driver spared prison after colliding with a stationary Garda car - killing an elderly pedestrian and injuring two gardaí - has been jailed after the Court of Appeal found the imposition of a community service order was too lenient.
Adrian Nestor (44), from Keamsella, Kilcolgan, Co Galway, was five times over the limit when he collided with the vehicle near Ardrahan, in Galway, in the early hours of February 1, 2016.
Liam McDonnell (66) had been reported missing from a nursing home in the area the previous night. Two gardaí had located him and were trying to get him into a patrol car when an Audi, driven by Nestor, struck the three of them.
Nestor, who had a blood alcohol level of 272mg at the time, had pleaded guilty to dangerous driving causing the death of Mr McDonnell (66) and serious harm to Gda Sharon Casserly, whose injuries were described as life changing. Also injured was Gda Peter Murtagh who suffered a broken leg.
Galway Circuit Criminal Court heard Nestor had been drinking in two pubs and had attended a wake having left home around 7pm that evening.
Sentencing him to 240 hours of community service in lieu of a four-year prison sentence, Judge Rory McCabe said a four-year sentence would have been appropriate but the interests of justice would not be served by sending Nestor to prison.
He was fined €1,000 and banned for four years.
The Director of Public Prosecutions successfully sought a review of Nestor's sentence on grounds that it was "unduly lenient". The Court of Appeal agreed and sent him to jail for two years yesterday.
Counsel for the DPP, Eoghan Cole BL, told the court a four-year suspended sentence failed to meet the seriousness of the case and failed to meet send a message out that society condemns this kind of behaviour.
Mr Cole said Nestor had made a conscious decision to drink and drive and had repeated that decision over the course of the evening - from 7.30pm until around midnight - drinking at each location he visited.
Mr Cole submitted that the headline sentence of six years (before mitigation) did not reflect the Circuit Court judge's own finding that the case fell within the higher end of the scale. The maximum was 10 years imprisonment, and seven, eight or nine years would fall within the higher end. A sentence of four, five or six years fell in the medium range.
However, Mr Cole said it was the decision to suspend the sentence in its entirety that was "flawed", resulting in an "unduly lenient" outcome.
The outcome did not reflect the full context in which Nestor's drinking had aggravated the offence.
Giving judgment in the three-judge court yesterday, Mr Justice Patrick McCarthy said the sentencing judge fell into error when he suspended the four-year sentence.
In light of the mitigating factors such as Nestor's guilty plea, remorse, his otherwise good character, the fact he remained at the scene and sought to assist, the fact he lost his employment and the "serious personal consequences" for him, Mr Justice McCarthy said the judge should have afforded a shorter period of suspension leaving him with a net jail term of two-and-a-half years.
Mr Justice McCarthy, who sat with President of the Court of Appeal Mr Justice George Birmingham and Mr Justice John Hedigan, resentenced Nestor to four years' imprisonment with the final two suspended.