The full text of Judge Kennan Johnson remarks at the sentencing hearing on Tuesday of Finbar O’Rourke at Portlaoise Circuit Court:
In this case the accused has pleaded guilty to two offences. The first offence is dangerous driving causing death or serious bodily harm and the second offence is drunken-driving.
The offences were committed on the 17th day of April 2014 when a Toyota Avensis motor car bearing registration number 131G18146 and driven by the accused was involved in a head-on collision with a Ford Mondeo motor car registration number 02WH5063, which was being driven by Gillian Tracey. The accident occurred at Ballymorris, Portarlington at around half past eight in the evening. Driving conditions were good at the time, with the road being dry and visibility good. The accident occurred during daylight hours.
Background
The background to the offending is that at about ten past four in the afternoon on the date of the accident, the accused met his friend Aaron Smith in Portarlington. I’m advised that the accused had been notified that he was being made redundant and was naturally upset about this. It appears that he arranged to meet Mr Smith, with the view to going for some drinks. I understand that the accused intended to stay overnight with Mr Smith. Mr Smith parked his car in the Supervalu car park in Portarlington. The accused parked his car at Fox Street. Both men went to Goarty’s licensed premises where over the next two hours, the accused consumed 4 pints of cider. At approximately ten past six in the evening, both gentlemen went into the ‘After Dark’ licensed premises, where I am informed the accused drank a further 1 and 1/2 pints of cider. At approximately ten past seven that evening, the two gentlemen went to the ‘Weighbridge’ licensed premises, where the accused consumed a further 4 pints of cider. While in the ‘Weighbridge’, the accused also had a sandwich. It appears that after they left the ‘Weighbridge’ licensed premises, they had some chips and an argument ensued between them. Following the argument the accused drove Mr Smith back to his car at the Supervalu car park and told him to get out. It then appears that the accused proceeded to drive from Portarlington to Portlaoise. At Ballymorris, the accused’s car, while being driven at approximately 86 km/h, crossed the road without warning, traversing a continuous white line at a bend in the road and was involved in a head on collision with the car that was being driven by Gillian Tracey. Mrs Tracey’s two sons Ciaran aged 4 and Sean aged 7 were travelling with her. They were both in the back on booster seats and wearing seatbelts. The collision was extremely violent and forceful. Both cars sustained extensive damage. The PSV report of Garda Galvin states that the damage to the Ford Mondeo, which was driven by Mrs Tracey, was consistent with a severe impact to the front. The air bags on both of the vehicles were activated. The photographs of the damage to the vehicles provides clear evidence that the impact was extremely severe. This is further confirmed by the fatal injuries sustained by Ciaran and the severe injuries sustained by Mrs Tracey.
The accident happened at approximately half past eight in the evening. The first person on the scene was Lorcan Fullam who had been playing football with his three children in the front garden of his parents’ house near the scene where the accident occurred. He says that he ran out the driveway and saw the two cars crashed into each other with a lot of smoke coming from both cars. He further says that as he was running towards the cars he observed the driver of the Avensis getting out of the car. The driver of the Avensis was the accused and in the immediate aftermath of the accident, he proceeded to walk away from the scene in the direction of Portarlington. The statement of Mr Smith indicates that between 8.36pm and 8.44pm, a number of calls were made by the accused to Mr Smith on his mobile phone. In these calls the accused advised Mr Smith that he had been involved in an accident and he believed someone had died. He asked Mr Smith to come and collect him. In the last call, which was made at 8.44pm and lasted 56 seconds, Mr Smith could hear the accused being arrested by the Gardai. Accordingly it appears that the accused was arrested approximately 14 minutes after the accident, when he was found by the Gardai on the road walking in the direction of Portarlington. It is accepted that the accused was in a distressed and tearful state when apprehended by the Gardai.
While all of this was going on, assistance was being rendered to Mrs Treacy and Ciaran and Sean by Mr Fulham along with Mr Emmett O’Mahoney, his son Ciaran O’Mahoney and nurse Mary Joyce, all of whom came on the scene shortly after the accident occurred. Nurse Mary Joyce was on her way to work in Portlaoise Hospital when she came on the scene. All of these people deserve tremendous credit and our admiration and thanks for the way in which they went to the assistance of the Treacy family. I can appreciate that each of them had to be severely traumatised and shocked by what they saw. It has to be a source of some consolation to the Treacy family to know that nurse Joyce stayed with Ciaran until he was admitted to the Accident and Emergency Department in Portlaoise Hospital.
At this stage I would also like to pay tribute to the emergency services and, in particular, the ambulance service, the Gardai and the fire service for the speed with which they came on the scene. It appears that Garda Karen Nevin and Garda Mark Ryan were on the scene within 2 to 4 minutes. They were followed shortly thereafter by the fire service and the ambulance service. It is clear that all the emergency services used their best endeavours to assist and help the injured. It is also clear that all of the services acted in a professional and co-ordinated fashion. The Gardai deserve credit for the speed within which they apprehended the accused - it was a great piece of police work.
The victim impact statement of Gillian and Ronan Tracey is one of the most powerful, harrowing, vivid and upsetting that I have ever read. It sets out in graphic and emotional detail the devastating effects of the accused’s offending on the Treacy family. I don’t believe that there is a single person, who heard that statement that wasn’t moved by it. The vision of a mother having spent a happy day with her two young sons, having visited her parents, their grandparents and having enjoyed a shopping expedition is hard to reconcile with the calamitous events that ensued following the fatal accident involving the accused’s car. In the blink of an eye the Traceys’ beautiful family life was shattered, when their son and brother Ciaran was fatally injured in the accident and his mother sustained life-threatening and lifelong injuries.
By all accounts Ciaran was a beautiful happy young boy, who was dearly loved by his family, his brother Sean, his sister Caoimhe, his parents Gillian and Ronan, his grandparents, and extended family. His death is a tragedy which his family will find extremely difficult to get over. Their lives have been changed forever. Our heartfelt sympathy is extended to them as is our admiration for the way that they coped to date in the face of such adversity.
The victim impact statement also sets out the injuries sustained by Mrs Tracey. These included a fracture of the sternum, dislocation of the right foot, comminuted compound fracture of the distal left tibia and fibula, laceration to the left knee, laceration to the right of mid-shin, fracture of the right elbow, and fracture of the right hip joint. To date Mrs Tracey has undergone 10 surgical procedures and she is still under medical care. She spent five weeks in hospital and had to be brought to Ciaran’s funeral by ambulance on a hospital trolley. It is impossible, to even imagine the level of pain, hurt, emotional distress, loss, trauma and heartbreak that the Treacy family have suffered. In addition to this, the family have suffered financially as they have been forced to close the family business.
The victim impact statement has in addition to giving the court an insight into the consequences of the accused’s actions, also highlighted the dire and fatal consequences that can flow from drinking and driving. Anyone who drinks and drives, or has been convicted of drinking and driving, should read the victim impact statement in this case and, following that, they should ask themselves how would they cope, if they found themselves in the position which the accused finds himself in today. In many cases these people will have driven with an alcohol level similar to or greater than that of the accused and have avoided catastrophe by chance. When somebody drives a car, they accept responsibility for their own well-being, the well-being of their passengers and the safety of other road users. They have a duty of care to drive carefully and safely. This duty of care is owed to all road users be they drivers, cyclists, motorcyclists, or pedestrians. By drinking and driving a person is betraying that duty of care and putting other innocent road users in danger. A car under the control of a drunken driver is no longer a mode of transport, it is a lethal instrument that has the capacity to kill and maim.
All drivers, be they experienced or otherwise, should read the victim impact statement in this case so that they are alerted to the catastrophic effects of drunken driving. This victim impact statement is a wake-up call, that we as a society need to make it abundantly clear that drinking and driving is neither socially nor morally acceptable.
It is fair to say that over the last 25 years there has been a sea change in the attitude of the public towards drunken drivers. For most people it is no longer socially acceptable to drink and drive. An enormous amount of work has been done by the Road Safety Authority to highlight the dangers of drinking and driving. The Road Safety Authority's campaign with shock advertising that is broadcast on prime time TV has had considerable success. Nevertheless, the campaign must continue and be intensified, to send the message to those people who still persist in drinking and driving, or think that drinking and driving is not a serious offence, that this clearly is not a sustainable or justifiable position. The emotion of the victim impact statement in this case and the publicity it has attracted has done the good service of focusing people's minds on the issue. I think it is also fair to say that it has kick started a debate on how we as a society deal with the issue. It would seem to me that in the context of that debate, the issue of punishment and penalty could be usefully revisited. The maximum penalty provided for the offence of dangerous driving causing bodily harm or death is 10 years imprisonment and/or a fine of 20,000 Euro. By contrast in our nearest neighbour the UK, the maximum penalty for death by dangerous driving is 14 years. Our legislation doesn't provide for a custodial sentence coupled with a community service order. This is something worth looking at as it would allow two of the main pillars of sentencing, namely punishment and rehabilitation, to be addressed.
The victim impact statement, because of what it has already achieved in highlighting the issue, has done an enormous amount of good and I believe that it provides a fitting tribute and legacy to the memory of Ciaran. In time, I hope that this will be a source of some consolation to the Tracey family. It is clear from the victim impact statement that the loss and pain suffered by the Tracey family is still very raw. This is understandable as it is only 18 months approximately since the accident. A sense of hope for the family is borne out of the way Gillian and Ronan Tracey have coped to date. They are clearly wonderful and loving parents as Mrs Treacy so poignantly pointed out when she said the children are their world and that everything they did was for their children. In the face of such tremendous adversity, particularly given the physical and psychological trauma that Mrs Tracey has endured, together with the stress and trauma Ronan, Sean and Caoimhe have suffered, their response has been nothing short of inspirational. I sincerely hope that the family’s recovery from this horrendous event continues and I can assure them that they are in the thoughts and prayers of many people at this difficult time. I hope the Tracey family are receiving all the support that is available from the relevant state agencies at this difficult time and if not then I would urge such state agencies to step up to the plate and provide such help and assistance. It is clear that the family will need help and support for a long time to come and in the case of Mrs Treacy because of the severity of her injuries, possibly for the rest of her life.
One obvious and important lesson to be learned from the offending in this tragic case, is that if a person is going out to drink, they should not bring their car, or if they do, they should ensure that their car keys are not available to them at the end of their drinking session. I’m advised that the accused intended staying with Mr Smith on the date of the accident and that after he had consumed 9 pints of cider, he decided to drive home. It is absolutely clear that the accused’s decision-making capacity had been completely impaired because of his drinking. Accordingly he made the fatal decision to drive home. If he didn’t have access to his car keys, he would not have been able to activate that fatal decision and we would not be dealing with the fatal consequences of that decision. The clear message is, if you are going out for a drink, don’t bring your car and if you do bring the car, make sure the keys are put in a place, where you cannot get access to them later in the night, after your ability to make rational and wise decisions has been compromised as a consequence of what you have drunk.
Factors to be taken into account
In considering the appropriate sentence which I am bound to impose, I have noted the evidence as outlined by the state witnesses and Mr Fennelly, counsel for the state, and to what Mr Devally counsel has said on behalf of the accused. I have also considered the principles pronounced by the Court of Appeal, which a judge must consider prior to passing sentence and which forms part of our jurisprudence.
Principles to be considered
1. The sentence must be proportionate to the crime, within the context of the maximum sentence provided for by statute.
2. I must take into account any aggravating factors, mitigating factors and the circumstances of the accused.
3. I must consider whether the accused has shown remorse and displayed appreciation for his wrongdoing.
4. I must look at the accused’s record and the likelihood of him reoffending.
5. I must consider the accused’s co-operation with the Gardai throughout the investigation of the offence.
6. I must consider the effect of the consequences of the offence on society and the Treacy family.
I also have the benefit of the probation report and a psychiatric report which I must take into account.
I also have the benefit of the victim impact statement which I am also required to take into account.
In considering the appropriate sentence in this case, I am of the opinion that the punishment should be proportionate to the gravity of the offence
including the harm caused by it and the culpability of the offender. Other goals such as rehabilitation must also be considered.
Aggravating factors
1.The accused’s level of intoxication is an extremely aggravating factor. The evidence discloses that the accused consumed between 9 and 10 pints of cider within four hours while drinking with his friend Mr Smith in Portarlington. The certificate from the Medical Bureau of Road Safety shows a reading of 200 mg of alcohol per 100 millilitres of urine. This is almost 3 times the limit for nonprofessional drivers. I am instructed that the accused was a travelling salesman for Cadburys at the time of the offence. In view of this the lower limit of 27 mg per 100 millilitres of urine applies. This puts the accused at seven times the legal limit. Mrs Tracey states that immediately prior to the accident and as the accused’s car crossed the road to its incorrect side, she observed the driver in a slumped position at the steering wheel. This clearly demonstrates that the accused was in a highly intoxicated state at the time of the driving.
2.The driving was extremely dangerous. The evidence discloses that the accused’s car drove, without warning, across a continuous white line to its incorrect side of the road near a moderate bend. It was travelling at 86 km/h whereas the maximum speed limit was 80 km/h. There was no effort to stop the car as no brake marks or skid marks were discovered on examination of the scene. It is clear Mrs Tracey had absolutely no chance to avoid a collision. Full and exclusive responsibility for this accident rests with the accused. He clearly had little or no control of the car. It is also important to remember that road conditions were good as was visibility at the time of the accident.
3. The actions of the accused in the immediate aftermath of the accident are also an aggravating factor. Instead of remaining at the scene and rendering assistance to the victims, he proceeded to move off in the direction of Portarlington and to ring Mr Smith with a request that he come and collect him. In her victim impact statement Mrs Tracey recalls the accused getting out of his car immediately after the accident and running in the direction of Portarlington. Sergeant Lynam says that when he first saw the accused, he was walking the direction of Portarlington. This has compounded Mrs Tracey’s understandable inability to forgive the accused for what he did. In mitigation Mr Devally for the accused says that the accused was in shock. I am not convinced about this, as the accused had the presence of mind to ring Mr Smith and furthermore, in initial discussions with the Gardai, he admitted to drinking only two glasses of white wine. It is absolutely clear that when the accused told the Gardai he had consumed two glasses of white wine he was lying and endeavouring to minimise his culpability. This, in my view, was a substantial aggravating factor.
4.While the accused made admissions initially when interviewed by Sgt Lynam, his failure to co-operate with the investigation in a fulsome manner is a further aggravating factor. As already outlined he falsely told the Gardai that he had only consumed two glasses of white wine. When arrested and interviewed by the Gardai on 26th May 2014, which was about a month after the accident, he refused to confirm even the most rudimentary matters in relation to the investigation. He advised the Gardai, and this has been confirmed by his counsel, that in refusing to answer Garda questions, he was acting on legal advice. While I fully accept that an accused person is entitled to exercise their right to silence when being interviewed by the Gardai, I would have expected somebody who I am told is as contrite as the accused, to have offered at least minimal co-operation to the investigation.
5.The tragic and devastating effects of the offending on the victims and, in particular, the death of Ciaran and the serious injuries caused to Mrs Tracey, together with the Traceys’ economic loss are all aggravating factors. The victim impact statement has set out in clear terms and much more powerfully than I ever could, the catastrophic consequences of the offending.
Mitigation
1.The accused is entitled to mitigation for his plea of guilt to the offences. Given the overwhelming evidence which the state had against the accused, it has to be said that the credit for the plea in this instance is not as substantial, as it would be, in a case where the state might have difficulty in mounting a successful prosecution. Nevertheless, by pleading guilty the accused has saved Mrs Tracey the added trauma of having to give evidence in a jury trial.
2.The guilty plea has also saved the state the considerable cost, time and resources that a jury trial would entail.
3.The proffering of the plea immediately following service of the book of evidence in my view somewhat neutralises the adverse effects of the accused’s failure to provide full co-operation to the Gardai in the investigation of this matter.
4.The admissions made by the accused, that he was driving the car when he was initially spoken to by Sgt Lynam were helpful to the Gardai and are a mitigating factor.
5.The fact that the accused has a heretofore unblemished record is a mitigating factor and has to be taken into account.
6. The offending in this matter arises from the accused’s drinking. Since this incident he has joined the AA and has stopped drinking. Obviously this is of benefit not only to the accused but also to his family. His participation in AA and his ceasing to drink indicates an acknowledgement on the part of the accused that he had to take back control of his life in order to avoid future offending.
7.The accused’s work record shows that he has been engaged in gainful employment for all of his adult life. This indicates that the offending behaviour is out of character for the accused, particularly given that most of his work record involved employment which required him to drive.
8. The accused has expressed remorse for his wrongdoing. He has clearly been traumatised by what has happened. The psychiatric report that has been furnished to me indicates, that as a consequence of the offence, he is suffering from Post Traumatic Stress Disorder. There were contributing factors to his behaviour at the time of the offence, in particular the breakup of his marriage, the loss of his job and worries about his mortgage. Following the accident he became depressed and tried to commit suicide on at least two occasions. His sense of guilt was evident on the night of the accident when, on being told of Ciaran’s death, he tried to smash his head through a window in the Garda station. On the following day when he was being taken home from the Garda station by his friend Noel Whelan, he tried to throw himself out of Mr Whelan’s vehicle as he passed the Midlands prison, indicating to Mr Whelan that that was where he deserved to be. The psychiatric report indicates that on 20th April, which was some three days after the accident, the accused presented at the Department of Psychiatry at the Midland regional Hospital in Portlaoise in a depressed mood with suicidal ideation. He was admitted as an inpatient and treated in hospital until his discharge on 15th May. He continues to receive follow-up treatment as an outpatient. It is reassuring to note from the psychiatric report that the accused has shown a marked improvement in his mental health. The doctor has indicated that with adequate therapy his prognosis is good. I also note from Dr Ahmad’s report that the accused has been treated for adjustment disorder and anxiety since 2008. Dr Ahmad’s report indicates that the accused has had mental health problems since the age of 17 years. He indicates that the accused attempted suicide by overdose in 2006 and that at this time he was abusing alcohol and drinking 1 to 2 bottles of wine most evenings.
9. It is clear that the accused is a loving and devoted father. I’m advised that there were emotional scenes on the Monday of last week, when he said goodbye to his children, knowing that the next time he was likely to meet them was when they called to see him in prison. It is clear from the testimonials that have been handed into court and from photographs of him with his children and documents written by his children, that the accused is much loved by his children and that any custodial sentence will negatively impact on his relationship with his children. This will be a
Punishment, not only for the accused, but also for his children, who will be deprived of his companionship.
10.I have read the 19 testimonials which have been handed into court and which paint a picture of the accused as a person who is bighearted, kind and considerate. I also note that the accused has been active as a fundraiser for charities such as Barnardo’s and Focus Ireland. I also note that he has contributed to coaching of the local GAA club.
11. The probation report indicates that the accused is at low risk of reoffending. It also indicates that the accused cooperated fully with the service in the preparation of the report. In conclusion, it reports that the
the accused accepts that he will receive a custodial sentence and that he just wants to get the sentence and attempt to move on with his life as best he can. It is clear that Fergal O’Rourke is inherently a decent human being, who made some very bad decisions on the night of the accident and he has now to live with the consequences of that. He has acknowledged that he has committed a great wrong and is clearly remorseful.
Sentence
I must now turn to consideration of the appropriate sentence to be applied in this case. It has to be said that no sentence imposed by this court can redress the wrong that has been done. In its sentence the court must endeavour to balance the needs of society, the needs of the victim and the needs of the accused. It must also consider the four pillars of sentencing which are deterrence, punishment, restitution and rehabilitation. As I have already indicated, the wrong perpetrated here, cannot be undone and accordingly restitution has nothing to offer in the way of informing the sentence the court must impose. I appreciate that Mr O’Rourke’s motor insurance will deal with any civil claims arising out of the accident, however I do not believe that in a case such as this where a fatality has occurred that such restitution as the civil claims may provide can constitute restitution for sentencing purposes. You cannot put a monetary value on a life. In cases such as this, where alcohol consumption is the major aggravating factor, deterrence has to play a significant role in the formulation of the sentence. The message has to be sent out, that people have no business attempting to drive even with the slightest amount of drink in their systems - the greater the amount of alcohol in the system, the greater the culpability of the offender.
As I have already indicated the maximum sentence that can be imposed in this country for a charge of dangerous driving causing bodily harm or death is 10 years. In structuring sentence I am constrained by this and also constrained by the decisions of the appeal courts. Consequently I will now turn to consideration of the most recent Court of Appeal decision in this area which is the case of DPP v Casey delivered on the 31st of July 2015. In this case, the Criminal Court of Appeal held that the sentencing judge had erred when he put Mr Casey’s offending at the apex for sentencing purposes. In other words the trial judge took the view that because of the aggravating factors the offence warranted a 10 year prison sentence, before mitigating factors were taken into account. The circumstances in the Casey case are somewhat similar to the present case in that Mr Casey had a blood alcohol reading level of 204 mg of alcohol per 100 millilitres of blood - this is the equivalent of four times the legal limit for nonprofessional drivers and 10 times the limit for professional drivers. Accordingly the reading in the Casey case is greater than in the current case. Another aggravating factor in the Casey case was the fact that the accused left the scene. However it is noted that he did this after he had called the emergency services, a mitigating factor that does not exist in the present case. The 22-year-old passenger in Mr Casey’s car, a Ms Megan Johnson, was fatally injured and another passenger, Ms Kate Petford, was rendered quadriplegic as a consequence of the injuries she received. In the Casey case the accused had no previous convictions of consequence. Like the present case there was a very powerful victim impact statement which set out the devastation caused to the Johnson and Petford families.
In the course of his submissions to the Court of Appeal, counsel for Mr Casey referred to eight cases of dangerous driving causing death which were dealt with by the Court of Criminal Appeal either as appeals against severity of sentence or applications by the Director of Public Prosecutions for a review of sentence on grounds of undue leniency. Sentences of five years imprisonment were imposed in two of the cases and sentences below five years imprisonment were imposed in the remaining six cases. Mr Justice Sheehan said that these comparator cases suggested that allowing for a margin of appreciation, the sentence imposed by the sentencing judge in the Casey case was out of line with other decided cases and that the judge had erred in principle in holding that the Casey case was at the absolute apex of dangerous driving causing death and thus attracting as a starting point a ten year sentence. The Court of Appeal has directed a new sentence hearing before it in the Casey case and accordingly this court does not have the benefit of that decision. However this court has to be cognisant of the decisions made in the Court of Appeal. It is important to note that in the case of DPP v Oliver Shovelin, delivered on the 27th day of April 2009, Mr Justice Kearns said that each case of dangerous driving causing death turns uniquely on its own facts and that it was an area of sentencing, which for that very reason, did not lend itself to uniformity or consistency.
It is my view that this is a particularly bad case taking into account the aggravating factors and that it is close to the top of the upper end of the offending scale, if not at the top. However, in the light of the Court of Appeals decision in Casey and the statutory maximum of 10 years that applies, I am compelled to place the sentence in this case, before applying mitigation factors, at nine years. It is incumbent on me also to take into account the mitigating factors outlined above. Accordingly, having done this, I am imposing a sentence of 7 years and six months imprisonment on the charge of dangerous driving causing death. I am directing that the sentence be backdated to last Tuesday, which was the day the accused went into custody. I am also disqualifying the accused from driving for a period of 20 years. I am marking the drunken driving charge as proved, taken into consideration.
I am directing that while in prison, Mr O’Rourke is provided with the necessary supports to continue on the road to rehabilitation, in particular he should be provided with appropriate counselling.
I appreciate, that some people may feel that the sentence imposed is too lenient. I acknowledge and appreciate their concerns but I have to apply
the law and, in that respect, I am constrained by the level of maximum penalty which is provided for in the statute and also constrained by the jurisprudence in these cases that has emerged from the Appeal Courts.
It has to be acknowledged that the death of Ciaran Tracey and the injuries suffered by Gillian Tracey together with the distress, heartbreak and economic loss sustained by the Tracey family is a tragedy for them. As I have said previously, no sentence imposed by this court can ever restore the Tracey family to the position they were in before the accident. All a court can do in sentencing is mark the gravity of the offence by using the sentencing tools at its disposal to impose a sentence that takes into account all of the relevant factors.
It has to be borne in mind that the incarceration of Fergal O’Rourke is a tragedy for his family. His young children will be deprived of their father’s support, during some of their most formative years. They will suffer a sense of grief and loss at the incarceration of their father. Mr O’Rourke has to live with the guilt of the harm he caused and that in itself is a form of life sentence.
Finally, in the reporting of this case, I would urge the media to exercise sensitivity towards the feelings of the two families. The last thing they need is irresponsible reporting that could add further to the pain and suffering that they have already endured.