Drunk driver who hit stationary garda after hour-long pursuit has sentence cut
A drunk driver, who was pursued "from one end of Cork to another" in a stolen van before hitting a stationary garda motocyclist, has had his 12-year prison sentence cut on appeal.
John Paul O'Driscoll (29), a native of Fairhill but with an address at the Simon Community, had pleaded guilty at Cork Circuit Criminal Court to 17 charges including burglary, unlawful taking of a van, reckless endangerment and criminal damage at various locations around Cork in April 2013.
O'Driscoll, who has 168 previous convictions, was disqualified from driving at the time and was on "two different sets of bail".
During the pursuit, which lasted almost an hour, O'Driscoll rammed a number of vehicles, some with people inside, drove the wrong way down a one-way street and a dual carriageway before hitting garda Michael Twomey, throwing him from his motorbike for "a considerable distance".
He was given consecutive sentences totalling 12 years imprisonment but when Judge Seán Ó Donnabháin indicated that he would suspend the final two years, O'Driscoll shouted from the dock that he could "f*** off".
O'Driscoll successfully appealed his sentence today and was resentenced to seven years and nine months imprisonment with the final 12 months suspended on conditions.
Giving judgment in the three-judge Court of Appeal, Mr Justice Garrett Sheehan detailed the series of incidents which occurred on the day in question.
The most serious incident was when O'Driscoll drove at speed towards the main Cork-Mallow road. As he came out of the roundabout at speed, he drove towards garda Twomey and knocked him from his motorcycle.
Garda Twomey, who suffered broken ribs, lacerations to his body and internal bruising, was stationary at the time on his motor cycle and wearing high visibilty clothing. He was unable to take evasive action before O'Driscoll collided with him, throwing him from his motorbike.
O'Driscoll continued at speed until he ultimately stopped at Lower Killeens, where he and his co-accused left the vehicle. O'Driscoll was arrested shortly after and was found to have a blood alcohol level showing 244mgms per 100mls of blood.
At the time of sentencing, O'Driscoll was unemployed and living in a Simon Hostel. He had 168 previous convictions including convictions for theft, burglary, unauthorised taking of vehicles, possession of knives, assaults, criminal damage, entering buildings, handling stolen property, arson, dangerous driving and a "multitude" of driving licence and insurance convictions.
At the time of these offences, he was on bail in relation to an offence of obstructing a police officer as well as in respect of theft and public order offences.
He left school at 13 and sustained a serious head injury at 15, for which he underwent surgery. His family believe "he has never been right since this time".
Described as a "chronic alcoholic", his prison record showed that he had been in and out of prison since the age of 16.
Mr Justice Sheehan said the critical factor in this appeal was whether or not O'Driscoll was sentenced on the basis of intentional endangerment as opposed to reckless endangerment.
It was noteworthy that the count to which he pleaded included both elements as alternatives and O'Driscoll gave unchallenged evidence that he did not drive intentionally at garda Twomey, Mr Justice Sheehan said.
"To a certain extent the matter was left up in the air" and defence counsel could not be blamed for that, the judge said.
Mr Justice Sheehan said the matter ought to have been resolved by a hearing, known as a Newton hearing, on the issue. Given that that did not happen, he said the court was obliged to resolve the matter in favour of O'Driscoll.
He said the Circuit Court judge erred in failing to hold a Newton hearing in circumstances where there was significant factual dispute between the parties even though the judge "got no assistance" on the matter.
He said the Circuit Court judge also erred in immediately removing the suspended element of the sentence following O'Driscoll's "outburst".
Mr Justice Sheehan, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said nine years was the appropriate overall headline sentence for all of the offences, which was mitigated down to seven years and nine months in light of O'Driscoll's guilty plea and his co-operation with gardai after his arrest. In order to incentivise rehabilitation, the court suspended the final 12 months.
It was clear, Mr Justice Sheehan said, that O'Driscoll's reintegration into society will need to be "carefully planned" and the purpose of involving the probation service was to ensure that he is assisted in the best possible way.
Finally, O'Driscoll was disqualified from driving for 35 years.