A truck driver who was fined €1,500 for careless driving that caused the death of a three-year-old girl should have been given a custodial sentence, the Director of Public Prosecutions (DPP) has told the Court of Appeal.
Appealing the sentence as unduly lenient, Shane Costelloe SC for the DPP said the message sent out is that people who drive carelessly might "get away with no sentence whatsoever". He urged the three-judge appeal court to at least impose a suspended prison sentence, "as a method of dissuading people from driving in a careless way."
The court will deliver its judgement tomorrow.
Estlin Wall was just days away from her fourth birthday when she was killed in an accident which caused serious bodily harm to her father, Vincent Wall, on March 15th, 2017.
Arising from the crash Senan O'Flaherty (64) of Lower Gowerhass, Cooraclare pleaded guilty to careless driving causing death and careless driving causing serious bodily harm. At a sentence hearing last year Judge Gerald Keys fined O'Flaherty €750 in respect of each charge and banned him from driving for four years, the shortest ban allowed under the statute.
Judge Keys said O'Flaherty had a "low culpability" in causing the tragedy.
Mr Costelloe today told the three-judge court that O'Flaherty was driving his heavy goods vehicle behind a bus which was accelerating and slowing down "erratically". He said that O'Flaherty may have become frustrated by the continuously changing speed and was seen by witnesses in cars behind him driving "right up behind the bus".
Counsel submitted that at the first point on the road where it was legal to overtake, O'Flaherty crossed over the median line causing Mr Wall, who was travelling in the opposite direction, to take evasive action. Mr Wall lost control of his Skoda Fabia which did a 360-degree turn and was in collision with an oncoming car that had been driving behind Mr O'Flaherty's car. Mr Wall's daughter, who was in the back seat, suffered catastrophic injuries and died.
Crossed median line
Mr Costelloe said the sentencing judge had erred by accepting a statement by O'Flaherty that he only crossed the median line because he saw the bus crossing it and thought there might be a pedestrian or cyclist on the left side of the road. Counsel said the judge had found that the only error committed by O'Flaherty was in driving too close to the rear of the bus.
Mr Costelloe said that the evidence of the bus driver and several witnesses was that the truck driver crossed the line because he was about to overtake or because he wanted to see if it was possible to overtake.
By accepting this assertion, despite all other evidence, the trial judge has entered into error and has incorrectly placed these offences in the lower end of the scale
Counsel said that O'Flaherty's explanation went against the State's evidence and added: "By accepting this assertion, despite all other evidence, the trial judge has entered into error and has incorrectly placed these offences in the lower end of the scale."
Michael Collins SC for Mr O'Flaherty said the judge had extensively referenced the State's case and that Mr Costelloe was incorrect to suggest that he took Mr O'Flaherty's account "at face value". He said the judge was entitled to make the finding that he did and no error was made.
He added that the manoeuvre attempted by his client is one that all drivers will be familiar with, adding: "There but for the grace of god go all of us."
President of the Court of Appeal Mr Justice George Birmingham, sitting with Ms Justice Isobel Kennedy and Mr Justice Pat McCarthy, will deliver their judgement tomorrow.