Drink driver who killed pedestrian jailed; Court finds original sentence too lenient

by Ruaidhrí Giblin

A drink driver spared jail for colliding with a stationary garda car - killing an elderly pedestrian and injuring two gardaí - has been sent to jail after the Court of Appeal found that the imposition of a community service order was too lenient.

Adrian Nestor (44), from Keamsella, Kilcolgan, Co Galway, was five times over the limit when he collided with a garda car near Ardrahan, in Galway, in the early hours of February 1, 2016.

Liam McDonnell (66) had been reported missing from a nursing home in the area the previous night. Two gardaí had located him and were trying to get him into a patrol car when an Audi, driven by Nestor, struck the three of them.

Nestor, who had a blood alcohol level of 272mg at the time, had pleaded guilty to dangerous driving causing the death of Mr McDonnell (66) and serious harm to Garda Sharon Casserly whose injuries were described as life changing. Also injured as a result of the collision was Garda Peter Murtagh who suffered a broken leg.

Galway Circuit Criminal Court heard that Nestor had been drinking in two public houses and had attended a wake having left home around 7pm that evening.

Sentencing him to 240 hours of community service in lieu of a four-year prison sentence, Judge Rory McCabe said a four year sentence would have been appropriate but the interests of justice would not be served by sending Nestor to prison.

The deceased’s ex-wife, in a brief victim impact report, said jailing Nestor would not bring her ex-husband back. Judge McCabe also fined him €1,000 and banned him from driving for four years.

The Director of Public Prosecutions successfully sought a review of Nestor’s sentence on grounds that it was “unduly lenient”. The Court of Appeal agreed and sent him to jail for two years today.

Counsel for the DPP, Eoghan Cole BL, told the Court of Appeal that a four year suspended sentence failed to meet the seriousness of the case and failed to meet the need for general deterrence - to send a message out to the wider public that society condemns this kind of behaviour.

Mr Cole said Nestor had made a conscious decision to drink and drive and had repeated that decision over the course of the evening - from 7.30pm until around midnight - drinking at each location he visited.

On Nestor’s own account, Mr Cole said intoxication must have caused the collision. He saw a car facing him with dipped headlights on which appeared to be on his side of the road. He was clearly not in a position to control his car appropriately and if he had stayed in his lane, there would not have been a collision, Mr Cole said.

He said it was a single carriageway, a national road with no unusual features. There was no hidden dip in the road nor any line of sight issues. Speed was not a factor, it was accepted, and there was no evidence of dangerous driving prior to the collision.

Mr Cole submitted that the headline sentence of six years (before mitigation) did not reflect the Circuit Court judge’s own finding that the case fell within the higher end of the scale. Where the maximum was ten years imprisonment, a sentence of seven, eight or nine years would fall within the higher end. A sentence of four, five or six years fell in the medium range, counsel submitted.

However, Mr Cole said it was the decision to suspend the sentence in its entirety that was “flawed” resulting in an “unduly lenient” outcome. He said the outcome did not reflect the full extent and context in which Nestor’s drinking on the night in question aggravated the offence.

Giving judgment in the three-judge court today, Mr Justice Patrick McCarthy said the sentencing judge fell into error when he suspended the four year sentence.

In light of the mitigating factors such as Nestor’s guilty plea, remorse, his otherwise good character, the fact he remained at the scene and sought to assist, the fact he lost his employment and the “serious personal consequences” for him, Mr Justice McCarthy said the sentencing judge should have afforded a shorter period of suspension “of in or about 18 months only” - leaving him with a net jail term of two-and-a-half years.

However, given that the Court of Appeal was not sentencing at first instance, and that Nestor was being sent to jail for the first time in circumstances where he might have hoped he wouldn’t have to, Mr Justice McCarthy said the appropriate suspension would be for two years.

Accordingly, Mr Justice McCarthy, who sat with President of the Court of Appeal Mr Justice George Birmingham and Mr Justice John Hedigan, resentenced Nestor to four years imprisonment with the final two suspended.