Donegal dangerous driving sentence “unduly lenient”

About this case:

• Judgment:
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Shaun Kelly had pled guilty in December 2014 to the offence of dangerous driving causing death, following a fatal incident in July 2010 in which eight people lost their lives, seven of them occupants of the car being driven by Mr Kelly, and one the driver of another car.

His initial sentence was one of four years imprisonment with two suspended, as well as a ten year driving disqualification. The initial trial judge had found that the Mr Kelly’s guilty plea, the harm experienced by Mr Kelly himself, the support for Mr Kelly expressed by the families of the victims, and the media attention the trial had been given, all constituted mitigating factors.

However, the Director of Public Prosecutions sought a review of the sentence under s. 2 of the Criminal Justice Act 1993, arguing that the initial sentence was unduly lenient, and had given incorrect importance to the various aggravating factors of the case.

These included the fact that the accused was a professional lorry driver and yet had a history of dangerous driving, including a previous conviction. He had deliberately endangered other motorists through his repeated dangerous driving on the evening in question, and had failed to ensure the safety of his passengers by overloading his car and not adjusting his seat correctly.

As a result, the accused had caused multiple fatalities, as well as the effects of the offence on the bereaved families.

The DPP also argued that excessive credit was granted to the accused for the provision of his guilty plea.

The DPP pointed out that the plea had been made only on the day of the trial after the selection of the jury, and that for some time before the plea the accused had been planning to run a technical case claiming the accident was the ongoing motorist’s fault. The accused had also pursued and abandoned a fitness to be tried application.

The DPP argued that the delays attributable to the accused had caused distress to some of the bereaved families, and that the guilty plea therefore should not have attracted such mitigation.

Finally, the DPP argued that insufficient attention had been given to the principle of deterrence, which should be considered an important factor in dealing with road traffic offences.

In sum, the DPP’s argument was not that mitigating factors did not exist, but that the judge had weighed up the mitigating and aggravating factors in a way that was “seriously deficient.”

The Court of Appeal, comprising Birmingham J, Sheehan J andEdwards J, noted that “obviously this is an appalling case. The culpability was very high.”

The Court noted that the maximum sentence for dangerous driving had been increased from five years to ten in 1994. They noted the case of R. v. Sloan NI 58, which stressed the role of the courts in making roads safer by imposing sentences which reflect the culpability of driving, and the case of AG’s Ref (No 30 of 1995) 1 Cr.App.R(S) 364 which found that a sentence “must now have in it elements of retribution and deterrence.”

Both the initial sentencing hearing and the present appeal also referenced the cases of DPP v. Sheedy 2 I.R. 184 and DPP v. Shovlin IECCA 44, which give guidance on potential mitigating and aggravating factors.

Delivering the judgment, Birmingham J acknowledged that the accused had previous convictions for dangerous driving, and had engaged in “sustained dangerous driving,” causing “the greatest loss of life in a road traffic collision in the history of the State.”

It was submitted by the Court that had the case been a contested case before a jury, the accused might have been entitled to the maximum sentence available.

The accused’s plea of guilty was accepted as having some value, but the initial trial judge’s finding that it had been given “as soon as was practicable” was rejected.

The Court also noted that the families of the bereaved had not expressed a wish to see Mr Kelly in jail, but found 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.”

While the Court found that there were some mitigating circumstances that should impact on the sentence, they found that the initial sentence represented “a substantial departure from what would be appropriate in such a case, and therefore must be set aside as unduly lenient.”