Prosecutors have told the Court of Appeal that the four-year sentence imposed on a man whose dangerous driving caused the deaths of eight people was too lenient.
Shaun Kelly (26), of Hill Road, Ballymagan, Buncrana, Co Donegal, had pleaded guilty at Letterkenny Circuit Criminal Court to dangerous driving causing the deaths of eight men on a road between Clonmany and Buncrana on July 11th, 2010.
He was sentenced to four years’ imprisonment with the final two years suspended by Judge John O’Hagan last December. He was also disqualified from driving for 10 years.
The Director of Public Prosecutions moved to appeal the sentence imposed on Kelly on Thursday on grounds that it was "unduly lenient".
Counsel for the DPP, Úna Ní Raifeartaigh SC, told the Court of Appeal on Thursday morning 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 actually caused.
‘Deliberate’ dangerous driving
She said there was a prolonged period of “deliberate” dangerous driving on the night and, driving the way he had been, it was “eminently forseeable” that there would be multiple fatalities.
Ms Ní Raifeartaigh 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. Seven passengers, some of whom were "roaring and shouting", got into Kelly'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 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 been overtaken by Kelly, the Gallaghers recalled flashing their lights at him 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.
‘Oh my God’
Another motorist driving towards 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.
Why he took that view was “inexplicable”, she said.
Even the defence team itself did not suggest Kelly’s plea was early, Ms Ní Raifeartaigh said.
The court heard Kelly’s lawyers had initiated fitness to plead proceedings but subsequently withdrew from that course of action.
The prosecution accepted 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 again 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 a range of views was 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 also the 10-year disqualification from driving.
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.
‘Monumental tragedy’
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,” Mr McGonigal said, and took an interest to the extent that he was able to refer to media reports and to 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 was not allowed to raise that point now, not having 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.
Seeking finality
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 of those affected in court for the appeal.
Hugh Friel (66); Eamon McDaid (22); Mark McLaughlin (21); Paul Doherty (19); Ciaran Sweeney (19); PJ McLaughlin (21); James McEleney (23) and Damien McLaughlin (21) died in the crash.
The eight deaths represented Ireland’s biggest single road crash in the history of the State.