Drunk driver jailed for death of boy (4) sentenced “as an example” lawyer tells Court of Appeal
A drunk driver jailed for the death of a four-year-old boy was sentenced “as an example" to the wider community "rather than an individual”, his lawyers have submitted to the Court of Appeal.
Finbarr O'Rourke (41), of Laurel Drive, Portlaoise, Co Laois, had pleaded guilty to dangerous driving causing the death of Ciarán Treacy (4) at Ballymorris, Portarlington on April 17, 2014. Ciarán's mother Gillian was also severely injured as a result of the incident.
Judge Keenan Johnson sentenced O'Rourke to seven-and-a-half years imprisonment at Portlaoise Circuit Criminal Court on November 3, 2015.
Opening an appeal against sentence today, O'Rourke's barrister, Conor Devally SC, submitted that the tariff was too high and O'Rourke was not given due mitigation “perhaps... because the (sentencing) judge was so moved by this case”.
Mr Devally said O'Rourke “should be sentenced for what he did” but the view was that he had to be “seen as an example rather than an individual”.
In this instance, Mr Devally said something greater had interceded against the interests of O'Rourke enhancing the tariff and reducing the mitigation that would normally apply.
Mr Devally said the sentencing judge appeared to be “unhappy the tariff is only 10 years” and was “railing perhaps against where he can go”. He had noted that the maximum in England was 14 years, the court heard.
Mr Devally said it was difficult “for me to even do this” because it made O'Rourke seem as though he wanted to minimise what he had done. “He does not”.
But O'Rourke was “unfortunate”, Mr Devally said, that his sentence had been seized upon as a lesson for the nation to learn.
O'Rourke had turned his personal life around, had “utterly changed” his relationship with alcohol and had recently expressed an interest in making himself available to the likes of the Road Safety Authority in the advocacy against what he himself had done.
Mr Devally said O'Rourke had suffered “quite a lot” and had great difficulties in how he's missed his children. His status as a prisoner was “somewhat vulnerable” and he was seen as requiring extra protection, limiting his movement within the prison.
O'Rourke had no history of unlawful conduct and a good work record. He had been a professional driver, the court heard.
Mr Devally said O'Rourke and a companion had gone out in the town on the date in question to have some drinks with a view to staying in his companion's home. But they had “a tiff, a stupid falling out” and O'Rourke “fatally took to the car” without any premeditation.
Mr Devalley said Mrs Treacy's vehicle was met in a head on collision. The engineering evidence appeared to establish that on a gradual bend O'Rourke lost concentration leaving no opportunity to avoid a collision.
O'Rourke was found down the road walking away from the scene. He was on the phone to the man he was drinking with earlier.
He was arrested and conveyed to the Garda station and he vomited a number of times on the way.
Mr Devalley said Mrs Treacy, in a victim impact statement, castigated O'Rourke for “running away” from the scene. It was agreed with prosecution that that would not be read into the record, but it was, counsel said.
O'Rourke was not trying to evade matters but “couldn't accept it” and “couldn't face up to it”. He rang his companion within minutes and told him 'I think I killed someone'.
The sentencing judge interpreted O'Rourke's phone call to his companion as a request to be collected. But the evidence was never to that effect, Mr Devalley said. He never asked to be removed from the scene at all.
Mr Devalley said matters in mitigation were minimised by the trial judge. “Dare is say” the sentencing judge was underplaying the remorse O'Rourke was going through, Mr Devalley said.
The aggravating factors included his failure to be immediately “fullsome in his cooperation”.
He made no admissions and was “mealy mouthed” in his attempts to minimise the amount of alcohol he had consumed. He said he had had two glasses of wine, the court heard.
When it was confirmed to him that the boy had died, O'Rourke struck a pain of glass inside the Garda station with his head, Mr Devally said.
Counsel for the Director of Public Prosecutions, John William Fennelly BL, said a court was obliged to have regard to O'Rourke's absence from the scene. There was a duty on a person involved in a road traffic accident to remain.
That was one of the counts on the indictment making it a full facts plea.
Mr Fennelly said he didn't think any court could come to the conclusion that O'Rourke was there other than for the briefest of periods. Within minutes he was away from the scene phoning his companion.
The judge was entitled to view that with some alarm, Mr Fennelly said, as a matter that aggravated the sentence.
The purpose of the phone call could not have been to render assistance or anything of that nature. It was not an error for the judge to take a strongly critical view of that and factor it into sentence.
Mr Fennelly said the consequences of the incident have been truly devastating and will continue to be so indefinitely.
Counsel said acadamic study suggests remorse would ordinarily be accompanied by additional factors such as full and frank admissions when taken into custody. That wasn't negated by saying: 'on legal advice, I said nothing'.
Mr Fennelly said O'Rourke's guilty plea would not merit the maximum reduction usually afforded because the car was still at the scene and he was arrested a couple of hundred metres away.
Reserving judgment, Mr Justice George Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice Alan Mahon, said the court hoped to deliver its decision on this “difficult and sensitive” case next week.