Court disqualifies 19-year-old driver for 6 years after careless driving causing death and serious harm.

Bill No. WDDP0030/2017 [2019] IECC 1

An Chuirt Chuarda

The Circuit Court

South Eastern Circuit County of Waterford

The People at the suit of The Director of Public Prosecutions

v

Edward O’Shea.

Sentencing remarks His Honour Judge Eugene O’Kelly, delivered 26th March

2019.

1) Edward O’Shea was arraigned and pleaded not guilty on 29 January 2019 to

one count of dangerous driving causing the death of Katie Murphy and to two

counts of dangerous driving thereby causing serious harm to Joseph Walsh and

Jessica Flynn. Mr O’Shea did however indicate guilty pleas to careless driving

for each of these 3 counts but this was not acceptable to the Director of Public

Prosecutions. On the same date, Mr O’Shea pleaded guilty to a 4th count of

driving a motor car as a learner driver, without being accompanied by under the

supervision of qualified driver. Following a six-day trial, Edward O’Shea was

convicted of careless driving on each of the 3 counts to which he had pleaded

not guilty. At the time of the accident, Mr O’Shea, who is now 19 years old, was

17 ½ years of age.

2) The circumstances which gave rise to this accident had their origin in a car park

in Tramore, when, it appears that for no particular reason, Mr O’Shea and 2

other young men, decided to drive their motor cars, each containing passengers,

along the cliff road to a car park at a popular bathing location known as The

Guillimeans. From what was disclosed in his probation report it appears that this

was his normal evening routine, whereby he and his friends would go for a drive

“to hang-out”.

3) It appears, although this is not certain, because Edward O’Shea, as was his

entitlement, refused to cooperate with the Garda investigation into the death and

serious injury of his passengers, that at the last moment he decided to turn off

the cliff road into a housing estate, known as Carrigeenlea. In undertaking that

manoeuvre, if indeed that is what he was attempting to do, Edward O’Shea lost

control of his vehicle. His car moved sideways and came into contact with the

curb with such force that it buckled the 2 nearside wheels under the car and

sheared the front driver’s wheel completely off the vehicle, sending it up over a

wall and landing many metres from the crash site the vehicle continued travelling

out of control and came to a stop when it collided broadside with the wall at the

entrance to the Carrigeenlea estate.

4) Garda Hally’s evidence was that Edward O’Shea gave a certain explanation to

him as to the cause of the accident when he first spoke to him but that other than

handing over his phone and pin and partaking of a blood test that that was the

end of his cooperation. Post-conviction interviews between the probation service

and Mr O’Shea did not give any further insight into the cause of the crash.

5) As a consequence of the crash Mr O’Shea’s front seat passenger Joseph Walsh

and one of his rear seat passengers Jessica Flynn, were each seriously injured

in the collision. Tragically, the 4th passenger in the car, Katie Murphy, died as a

result of the injuries sustained by her.

Victim impact statements.

6) The court has heard of the heartbreaking anguish caused to the family of Katie

Murphy. Even in their grief and considerable upset they could speak so lovingly

of their lost daughter. It would take from their eloquence to repeat any length

what they said but we got a privileged insight into the life and person of their

daughter and sibling. In the words of her brother, Scott, Katie injected her family

lives with humour, affection, kindness, positivity and warmth. Katie’s father,

Hilary Murphy, said that her death had destroyed their lives, with depression,

anxiety, tension and pain in their hearts, features of their everyday lives. Katie’s

mother described her as funny beyond words, extraordinarily caring and

compassionate, so full of life and charm. To her the effect of her loss has been

catastrophic and unrelenting. She feels sentenced to a life of nothingness,

forever having one foot in this world and one foot in the next. The other 2 victims

who were both seriously injured in their friends car, did not make victim impact

statements. The parents of Joseph Walsh, John and Phil Walsh have written to

the court to say that they hold no ill will towards Edward O’Shea or his family,

whom they would like to see having a healthy and positive life.

Spectrum of gravity.

7) Careless driving lies along a spectrum of bad driving which ranges from cases

that may only be a little more serious than driving without reasonable

consideration to those which fall just short of dangerous driving. In this case the

jury have delivered verdicts of careless driving. It is not their function to indicate

where on the spectrum of careless driving they place the particular fault of

Edward O’Shea. It falls to me, as the trial judge, to determine where on that

spectrum, the wrongdoing and culpability of Edward O’Shea lies. In the words of

the Chief Justice in the relatively recent Supreme Court case of DPP versus

Michael O’Shea; “where the driving in any case falls on that spectrum must

represent a central feature of a sentencing judge’s analysis of the culpability of a

person convicted of the offence of careless driving causing death or serious

bodily harm”.

8) In order to undertake that exercise I have reviewed the evidence which has been

heard at the trial. The prosecution put forward evidence to show that Edward

O’Shea drove at an excessive speed along the twists and turns of the cliff road

and as a result of his inability to control his car, collided with first, the kerb and

secondly, the wall, with the catastrophic and fatal consequences as outlined.

Expert Evidence

9) The Defence advanced a theory that the accident occurred as a result of an

unfortunate misjudgement on the part of an inexperienced driver as to the

prevailing road conditions at the entrance to the housing estate. In support of this

they called in evidence, a chartered engineer, a Dr Jordan, who put forward an

hypothesis based on his inspection of the junction. Dr Jordan stated that he had

access to the book of evidence and therefore to the evidence that would be led

at the trial. What was most remarkable about the expert opinion of Dr Jordan

was his complete failure to engage with any of the evidence of the independent

witnesses to be called by the state and his utter failure to explain how his theory

as to the causation of the accident was compatible with the evidence of nearly a

dozen witnesses, many of whom had been disturbed and alarmed in their homes

adjoining the cliff road, by the sound of a car being driven at such excessive

speed that they anticipated the inevitability of a crash.

10) The Defence are perfectly entitled to call an expert if they so choose, but such

an expert owes a duty to the court, if he is going to express an opinion to engage

with all the facts in the case. That certain experts failed to give independent

evidence based on the facts is a problem that has for many years been

recognised by the courts. In the case of DPP v O’Shea, 2010, Charlton J.

referred to this practice and I quote “The interests of a fair trial demand that the

prosecution case be heard and the prosecution witnesses be called in the

normal way. Dr Jordan makes no attempt to explain evidence of this kind or to

explain how it is consistent with the technical possibilities he raises “

11) I stress that this was a different case to the current one but again in this present

case a large body of independent evidence was not referenced by Dr Jordan. In

addition, he put forward specific estimates of speed class, without having made

any measurements, applied any formulas or conducted any mathematical

calculations. I do not know what the jury made of his evidence, but I found his

expert opinion unconvincing and his conclusion implausible. I do not accept that

a momentary misjudgement of road conditions is consistent with the evidence of

all the relevant lay witnesses in the case.

12) Edward O’Shea was driving a 1.6 L fuel injection engine Toyota Levan coupe.

His was the most powerful of the 3 cars that left in convoy to drive along the cliff

road. He was familiar with the route and the necessity to adapt his driving to the

road conditions. His car had low-profile tyres and a body skirt to give it the added

appearance of what one witness described as “a souped up performance car”.

Once he had carefully negotiated the speed bumps on the Priest’s Road, the

evidence of James O’Sullivan, the 2nd driver was that he and Mr O’Shea

accelerated up to 60 to 65 km/h, before he lost sight of Edward O’Shea, when

pulled so far ahead of him that he did not see his car again, until he came across

it crashed into the ditch. Jack Maher, his passenger also gave evidence that Mr

O’Shea slowed down for the speed bumps, but once clear of them that while

they were initially able to keep up with him, they lost sight of him on the cliff road,

at a point where he estimated his driver, James O’Sullivan, was doing 40 to 50

km per hour.The 3rd driver, James Reville, estimated that he was driving at 40 to

50 km/h, but he had lost sight of the other two cars ahead of him early on after

the speed bumps.

Independent Witnesses

13) There is also the evidence of independent witnesses living in the Carriglea

Estate. Ann Flynn was watching television when the noise of what she took to be

a speeding car so alarmed her that she stood up with fright and looked out in the

moments before she heard a bang. John Cashman in his house heard a car

moving at such speed that he mentioned it to his wife. Further on the road Mr.

Bonner heard a car coming along the cliff road very fast. He said it got louder

and louder as it came closer, leaving him, to use his words “on tenterhooks

waiting for something to happen”.

14) In addition, the court heard evidence in the course of a voir dire in relation to

Snapchat videos sent from Edward O’Shea’s car in the minutes before the crash.

The evidence was from a number of Katie Murphy’s friends who receive these

final messages from her. This was evidence that the jury did not get to see or

hear. Meesha Dunne gave evidence of hearing Jessica Flynn state that they

were probably going to die in the car and the retort of one of the males, “yea,

probably”. Nieve Kennedy, another recipient of the Snapchat videos, gave

evidence that she heard Katie Murphy say “cheeky, going over the speed limit”

and a male voice replying to say “cheeky, going twice over the speed limit”.

15) The State, whose overriding duty is to prosecute any case fairly, decided not to

seek to introduce this Snapchat evidence, on the basis that it fell foul of the

hearsay rule. We have entered an age when social media apps such as

Snapchat are ubiquitous and more and more real evidence is going to be in the

form of phone camera images and videos. This issue of real live videos while not

relevant to this sentencing hearing is one which sooner or later and preferably

sooner, the State will have to address in the interests of ensuring the fairness of

the trial process so that juries do get to hear evidence on what could be argued

is akin to the Res Gestae exception to the hearsay rule.

16) I mention this, because while the jury was not aware of this evidence, Dr Jordan

was. There was no evidence of any engagement by Dr Jordan in any critical way

with the abundance of witness testimony available to him. His failure to consider

material facts which clearly could undermine his conclusions, leads me to

deduce that his opinion is of little or no assistance to the court in assessing

where on the scale of careless driving Edward O’Shea’s culpability and bad

driving comes.

17) Having considered all of the above, including the aggravating factors which have

increased culpability and the harm done by the bad driving, I place each of

counts 1 to 3 at the very upper end of the scale of gravity for careless driving,

just short of dangerous driving. These offences carry a maximum sentence of 2

years imprisonment. Had the jury convicted Mr. O’Shea of dangerous driving, he

would have faced a potential maximum sentence of 10 years imprisonment.

However, that is not the verdict which the jury returned. Accordingly, the

sentencing range is from a wholly suspended sentence to 24 months in prison.

The maximum of 24 months is not appropriate as a headline sentence, because,

hard as it may seem to the victims or their families, it is possible to have cases

where the culpability of a driver is greater than in this case, for example where

an offender was driving while under the influence of an intoxicant or was at the

time disqualified from driving. None of these aggravating circumstances apply in

the present case.

18) I find that the appropriate headline sentence for each of the careless driving

convictions to be 22 months imprisonment, if these offences had been

committed by an adult. Edward O’Shea was however a child on 5 October 2016.

He was 5 months short of reaching his majority and as such Edward O’Shea’s

youth and age is an extenuating factor in arriving at the appropriate sentence for

him. I must have regard to his level of immaturity in assessing his culpability at

that time. Edward O’Shea clearly had an under developed sense of

responsibility. He was aimlessly driving around in a relatively high-powered car

at 17 ½ years of age at a reckless speed without any regard for either his own

safety or the safety of his passengers, two of whom certainly seemed to have

alerted him to the speed of his driving, or the safety of other road users.

19) His immaturity was compounded by the extraordinary and blatant irresponsibility

of the O’Shea Family Garage business who appear to have facilitated their child

driving a car, under a garage policy of insurance. Such trade policies of

insurance are designed for bona fide workers in the motor trade and were never

intended to be abused in the manner that Mr O’Shea appears to have done. That

the insurance companies providing indemnity is not a factor in this case. For

Edward O’Shea’s young age at the time of the crash I will discount the headline

sentence by a further 4 months to give a pre-mitigation starting point of 18

months imprisonment on each of the careless driving convictions.

Mitigating Factors.

20) Mr O’Kelly S.C. has identified the mitigating features in this case. He refers to

Edward O’Shea’s age and that his judgement was not as developed as an adult

driver. He points out that there was an offer last November to plead guilty to the

charges which the jury ultimately convicted him of. It is not, he said, a case

where it came into court to say he was blameless, he had accepted that he was

at fault. Mr O’Kelly refers to the evidence about road gradients and the complex

topography of the junction. He refers to the fact that Edward O’Shea has no

previous convictions and that he is doing an apprenticeship. He says that the

crash and its consequences have left him very affected and that he is extremely

aware of the terrible loss that the Murphy family have sustained. He refers to the

report to Geraldine Hartrim, an accredited psychotherapist, and to numerous

other letters of reference and testimonials all of which I have read. Finally, there

is a written apology from Edward O’Shea himself.

Ultimate sentence.

21) The appropriate allowance for the mitigating factors which have been identified is

a reduction of a further 4 months of the sentence to leave a net term of 14

months imprisonment on each count. The next issue which arises for

consideration is whether it is appropriate in all the circumstances of this case to

suspend any portion or indeed all of the sentence. I have carefully considered

the probation report and their opinion that Mr O’Shea would greatly benefit from

structured intervention and developing skills to cope with the impact of this

offence on him. Suspending a portion of the sentence is often used as an

incentive to encourage rehabilitation where for example there are addiction

issues, where repeat offending is identified as a high risk. There is a difficulty in

the sentence which of itself is not particularly long and that the scope to structure

it so as to meet the various objectives of sentencing is limited.

22) The nature of Edward O’Shea’s offending and the objective seriousness of his

bad driving I have placed at the upper end of gravity for careless driving. This is

also a case which calls for the sentence to reflect the need for general

deterrence. Some drivers, particularly young men, treat the public roads as some

form of private racetrack for the exhibition of what they believe to be their driving

skills, or the performance of their vehicles, and do so without any regard for the

potentially catastrophic consequences to their passengers and other road users.

At the trial there was evidence that the tyres on his car were low-profile tyres,

fitted to alloy sports wheels and were more suited to lap driving. There was

abundant evidence in this case to infer that Edward O’Shea deliberately

accelerated away from the other young drivers whom he had led in a convoy out

of Tramore along the cliff road. This stretch of road, because of its twists and

turns, should have been driven in a careful and cautious manner within the

relevant speed limit of 50 km/h. This road would present challenges to any

driver, but particularly a young and inexperienced driver still on a learner permit

and as in this case one not accompanied by a qualified driver. I am not treating

this as an aggravating factor because it forms the basis of a separate charge. It

does however form part of the factual matrix when looking at the subjective

circumstances of Edward O’Shea on the night in question.

23) He knew that he was driving without the supervision of a qualified driver and had

he been, the references which passengers made to his speed might either not

have been necessary or, if they were, might have been heeded. I do not find any

special reason of such a substantial nature nor any particularly exceptional

personal circumstance that warrants the sentence to be suspended. Edward

O’Shea comes from a good and stable background. He did not face in his

childhood any of the significant adversities that frequently afflict the lives of those

who appear before this court. Homelessness, addiction issues, lack of

educational opportunities, dysfunctional family or deprivation were happily not

features of Edward O’Shea’s childhood. Indeed he told his probation officer, that

all his physical, emotional and educational needs were met. He reported that his

parents adopt pro-social attitudes and instilled in their family pro-social

behaviour. Clearly there is a significant inconsistency in being pro-social on the

one hand and facilitating a child to routinely drive a relatively high-powered car

without the supervision of a qualified driver on a regular basis on the other hand.

There is also the abuse of the garage plate insurance system to which I have

referred.

24) Mr O’Shea completed his leaving certificate and informed his probation officer

that he was a good student who studied diligently. He stated that he had not

experienced any trauma in his life to date and enjoyed motorsport throughout his

adolescent years. Currently Edward O’Shea is in phase 5 mechanics course

although he has indicated that since the crash he has reconsidered mechanics

as a career. I am disqualifying Edward O’Shea from holding a driving licence for

a period of 6 years.

25) I am not satisfied that the need for the immediate imposition of a custodial

sentence of imprisonment is outweighed by the disruption to Edward O’Shea’s

FAS course in mechanics, a career in which in any event it appears he may be

having second thoughts. As the 3 convictions arise out of the same occasion of

bad driving and a single crash, it is not appropriate to make the sentences

consecutive, therefore the term of 14 months in each case is concurrent.

26) The final count and the only one to which Edward O’Shea pleaded guilty on 29

January last was that as the holder of a learner permit he drove a motorcar while

unaccompanied by a qualified driver to supervise his driving. Such driving is not

only illegal but dangerous. It beggars belief that Edward O’Shea appears to have

routinely treated this vehicle as his own. There is no extenuating circumstance

which might even have been offered by way of explanation as to why Edward

O’Shea needed to drive that night. Additionally, it appears that driving

unaccompanied was the norm from Mr O’Shea. He was not faced with any

personal emergency that necessitated the immediate use of the car. Of course

his driving was as I’ve previously mentioned in relation to the other counts

facilitated by the O’Shea Family Garage extending the garage trade policy of

insurance to cover this vehicle in a highly irresponsible way. I am told that the

vehicle was registered in the name of the garage. The so-called Clancy

Amendment was not in force on 5 October 2016. Had it been it would have

allowed for a prosecution to be brought against the proprietors of the garage and

on conviction they could face imprisonment of up to 6 months. That is little

consolation for the victims in this case where the penalty is a maximum fine of

€1000. Edward O’Shea pleaded guilty to this offence, and he has no previous

convictions for driving under a learner permit, despite apparently routinely doing

so. I will reduce the fine to €800 in view of the guilty plea and other mitigating

factors.

Eugene O’Kelly