Updated 3.55pm
A MAN WHOSE dangerous driving caused eight deaths has been sentenced to eight years imprisonment with the final four suspended following a finding by the Court of Appeal that his original two-year jail term was too lenient.
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 11 July 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.
The Court of Appeal set aside Kelly’s sentence today following a successful application by the Director of Public Prosecutions on grounds that it was “unduly lenient”.
Accordingly, the court resentenced him to eight years imprisonment with the final four suspended.
Giving judgment, Mr Justice George Birmingham said Kelly’s culpability was very high and the harm caused was enormous. It was the worst road traffic accident in the history of the State, he said.
The court fixed eight years as its starting point having regard to the multiple fatalities, the prolonged and persistent period of deliberate bad driving, overtaking in a dangerous fashion, failing to adhere to a warning from another road user and Kelly’s previous conviction for dangerous driving.
There were significant mitigating factors present such as Kelly’s youth and his plea of guilty. He had also sustained significant injuries and although there was disagreement as to their extent, Mr Justice Birmingham said it was not something that could be minimised.
He said the attitude taken by the families of the young men was “extraordinarily generous in their approach”.
It’s clear there was real remorse, he said, and he referred to a document handed into court by one of the victims’ families that morning which stated that Kelly had ‘now served five-and-a-half years of a life sentence’.
He said the two-year suspended period imposed by the Circuit Court, “would not be inappropriate”.
However the court suspended a further two years in light of the “bitter disappointment” the outcome must have on somebody well into their sentence with a release date in sight and in light of documents handed into court by some of the victims’ families which was highly relevant in considering the time and circumstances of his guilty plea.
The court did not interfere with the 10-year disqualification because, the judge said, he had been earning a living in transport and increasing the disqualification “might hamper rehabilitation”.
Bond
Kelly was required to enter into his own bond of €100 to keep the peace and be of good behaviour while in custody and for four years post release.
When asked if he undertook to be so bound, he said “yes”.
The judge had said the court would ordinarily be minded to reserve judgment given the importance and seriousness of the case. But the court was conscious of the pressure the case had on all concerned and he proceed to impose sentence.
Victim impact reports
Earlier, Mr Justice George Birmingham said the court had been asked to consider three documents handed into court by three of the victims’ families which “went beyond the traditional remit” of victim impact reports.
He reiterated a point made in the court’s judgment that the views of victims, while to be considered, could never be determinative of sentence.
It was a public prosecution, brought by the DPP in the name of the people of Ireland, he said.
Mr Justice Birmingham said it would be “harsh and really quite insensitive” to refuse to accept them but it remained to be seen what weight would be attached to them.
What emerged from the documents was the “desire for closure”. He said the court was conscious that people had travelled from Donegal but the “decision we have to take is a serious one”.
‘All Shaun’s friends’
Counsel for Kelly, Eoin McGoingal SC, asked the court to consider the documents.
Mr McGonigal said it was an unusual case in the sense of its results: seven young people from the same area, a radius of 15 miles, who were “all Shaun’s friends” died and the devastation could not be understated, he said.
He said the episode was reawakened every time the families meet and if rehabilitation was ever to come, it would not start effectively or properly until Kelly was released from prison.
He asked the court to consider Kelly’s “pain of knowing he was completely responsible”.
In giving the Court of Appeal’s judgment last month, Mr Justice George Birmingham said the Circuit Court judge had indicated seven years as an appropriate starting point had the trial been contested.
Mr Justice Birmingham said there were factors present in the case which “jusitified, indeed required” a sentence of lower than seven years.
However, the “double discounting” of the sentence from seven years to four and then suspending the final two “was not justified and amounts to an error in principle”.
He said the sentence represented a “substantial departure” from what would be appropriate and “must be set aside”.
World Cup 2010
Giving background to the incident which occurred on the night of the World Cup final 2010, Mr Justice Birmingham said Kelly got into his black Volkswagen Passat along with seven passengers.
There was evidence of what was described as high spirits with an amount of shouting and roaring and people getting in and out of the car.
Seat belts were not used and the belts in the front of the car were buckled down “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 the smell of burning rubber.
It was dusk and light was failing.
Witness statements
A number of witnesses described what happened next. A Mr James Gallagher described seeing a car in his rear view mirror approaching from behind at high speed.
Mr Gallagher said the car drove at speed very close up behind them before pulling out to overtake in a “jerky fashion” and then pulled off “as fast as it could in a reckless fashion”.
Mr Gallagher said he flashed his lights at the Volkswagen as he thought to himself that if the driver did not slow down, he was going to kill someone.
Another road user, coming in the opposite direction, driven by Ms Anne Gilloway, described a “big black car coming around a bend towards her” being “driven terrible fast” and that had come over the white line onto her side of the road.
She described seeing the driver turn the steering wheel and thought the car would miss her but the next thing she remembered there was a loud bang and the airbags activated.
The prosecution adduced evidence that the rear of Kelly’s car fishtailed into Mrs McGilloway’s car causing damage to it.
Kelly lost control of the car he was driving “completely” and collided with the car being driven by Mr Friel.
Mr Justice Birmingham said it was an “appalling case” with “very high” culpability.
It was not 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” but “a case of sustained dangerous driving.”
The consequences were “enormous, involving the single greatest loss of life in a road traffic collision in the history of the State”.
Furthermore, Kelly had a previous conviction for dangerous driving.
Mitigating factors
The combination of these factors meant that had the case been contested and resulted in a conviction, a sentencing court would have had to consider a sentence “close to if not quite at the statutory maximum” of 10 years imprisonment.
The case was not contested and Kelly was entitled to some limited credit for the plea, the judge said. However, the court could not agree with the sentencing judge that a plea entered after a jury had been sworn was “early”.
The DPP claimed “tactical decisions” were taken by the defence which undermined the subsequent plea “at the door of the court”, the judgment stated.
In late 2014, the defence indicated an intention to make a case based on Kelly’s unfitness to stand trial as well as intention to rely on engineering evidence which “sought to blame” another road user for the collision, the judgment stated.
The DPP accepted that in circumstances where Kelly had no memory of the incident, the defence was entitled to conduct its own inquiries but even making allowance for that the plea could not be regarded as a timely one, the judgment stated.
Mr Justice Birmingham said Kelly had 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 families of the deceased expressed a view that they did not want to see Kelly go to jail.
Mr Justice Birmingham said this was “not an easy issue to deal with”.
There must be many cases where a victim would like to see the perpetrator receive a lengthy sentence but “our system does not permit” the victim to advocate for that, the judge said.
The judgment questioned whether the situation was different where victims were advocating leniency.
Mr Justice Birmingham said the prosecution was brought in the name of the people of Ireland by the DPP and the views of family members could not “be decisive” in determining a sentence.
That is not to say the attitude of the families and in particular, 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.”
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