Director of Public Prosecutions v Nestor

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice McCarthy
Judgment Date31 July 2018
Neutral Citation[2018] IECA 255
Date31 July 2018
Docket Number38/2018

[2018] IECA 255

THE COURT OF APPEAL

McCarthy J.

Birmingham P.

Hedigan j.

McCarthy J.

38/2018

BETWEEN
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
APPLICANT
- AND -
ADRIAN NESTOR
RESPONDENT

Sentencing – Dangerous driving causing death and serious injury – Undue leniency – Applicant seeking a review of sentence – Whether the sentence was unduly lenient

Facts: The applicant, the Director of Public Prosecutions, appealed to the Court of Appeal against a sentence of four years imprisonment suspended on the basis that the respondent, Mr Nestor, undertake 240 hours of community service, imposed by the Circuit Court on 18 January 2018 on a charge of dangerous driving causing death and serious injury on 1 February 2016 in the small hours of the morning and at a time when the respondent had a blood alcohol level of 272 mg of alcohol per 100 ml of blood. The applicant submitted that the trial judge was wrong in considering that the appropriate starting point, objectively speaking, in terms of the respondent’s moral culpability, for a sentence in a case of this kind was in or about six years. The applicant also submitted that the trial judge adopted an erroneous approach to the question of suspension.

Held by the Court that the starting point of six years was not unreasonable. The Court held that by suspending the balance of the sentence of four years (with provision for community service), after the discount from six to four, the trial judge fell into error. The Court held that it would have been appropriate to have further regard to the mitigating factors such as the plea of guilty and associated remorse, the fact that the respondent remained at the scene and sought to assist, his full admissions, that he was otherwise of good character, that he lost his employment, the serious personal consequences for him in terms of his mental health and the favourable probation report, and that having taken these factors into account the trial judge should have afforded a shorter period of suspension of in or about 18 months only.

The Court held that it would suspend the last two years of the sentence having regard to the fact that it was appropriate that an additional discount be given to the respondent since he was entering custody for the first time in circumstances where he might have hoped that he would not do so. The Court held that the suspension would be upon the terms that he keep the peace and be of good behaviour for that period and also abstain from alcohol.

Appeal allowed.

JUDGMENT of the Court delivered on the 31st day of July 2018 by Mr. Justice McCarthy
1

This is an appeal against a sentence of four years imprisonment suspended on the basis that the accused undertake 240 hours of community service, imposed by the Circuit Court on 18 January 2018 on a charge of dangerous driving causing death and serious injury on 1 February 2016 in the small hours of the morning and at a time when the accused had a blood alcohol level of 272 mg of alcohol per 100 ml of blood.

2

The accused had been drinking in two public houses and had attended a wake having left home at around 7 o'clock the previous evening. On the public highway near Gort, County Galway he drove onto the hard margin knocking down and killing Mr Liam McDonald and injuring two members of an Garda Síochána who were helping the former. The headlights of their car were dipped and the Garda flashing lights were lit.

3

At Garda Murtagh's request the accused summoned assistance by going to a neighbouring house. The accused admitted driving the vehicle to one of the Gardaí who arrived at the scene and that he had also been drinking. When initially arrested he expressed sorrow for what occurred and enquired as to the welfare of the injured Gardaí. Subsequently, by appointment, on 18 June next following he was arrested by appointment and furnished a prepared statement to investigating officers. He was also interviewed. He made full admissions.

4

The ill effects on the Gardaí were very significant – but more so in the case of Garda Casserly. In her case they might be described as devastating and it is hoped she will resume her Garda career. She lost consciousness, having been thrown a considerable distance by the collision and was treated at Galway University Hospital until 25 April 2016 when she was then transferred to the National Rehabilitation Centre, remaining there until 10 June of that year. She has since been engaged in rehabilitative activities and treatments and, in particular, for example, she was at the time of sentencing hearing enrolled in a brain surgery rehabilitation programme. Her injuries and the treatment for them have greatly hampered her progress within the Gardaí. We do not set out the injuries in extenso but for the purpose of this judgement we might summarise them as being head injuries, cervical spine injuries, lacerations and haematomae to the spleen and pulmonary contusions, a coccyx fracture, a left vocal injury, a vocal cord injury and several tibial and fibulal fractures on both sides. She had amnesia for her first week in hospital. On 2 February 2016 she suffered a massive stroke as a result of which she lost all movement and power in the right side of her body and she is left with a broad range of difficulties and ailments which it seems will not improve as she gets older and she is obviously worried for her future health. She suffered nightmares and continues to do so. Because of the brain injury she has weakness in her right hand, shaking and a tremor and she finds writing and typing difficult. It also gives rise to mood swings and fatigue with difficulties of memory, focus, attention and a tendency to repeat herself. In May 2017 she was fortunate to have a daughter although she finds it difficult to play with her. The physical and psychological trauma of the event will undoubtedly remain with her for ever, as she put it herself it when giving evidence. One might also add that she it had been arranged that she should be married on 3 June 2016 and of course it was necessary to cancel that arrangement.

5

Garda Murtagh's injuries extended to a fracture of the right upper humerous,...

To continue reading

Request your trial
1 cases
  • DPP v Flynn
    • Ireland
    • Court of Appeal (Ireland)
    • 30 October 2020
    ...and that a lenient sentence here was a humane one“. 40 We were also referred to The People (Director of Public Prosecutions) v Nestor [2018] IECA 255. In that case, the Director sought to review the imposition of a fully suspended sentence of four years' imprisonment with provision for 240 ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT