A Wexford commerce student jailed for careless driving causing serious bodily harm to a woman out walking her dogs on a country road had her sentence cut on appeal today.
The Gorey pedestrian, who is in her 60s, was thrown over a ditch at Millands, Gorey, Co Wexford, and was left lying seriously injured for an hour before being discovered.
Pamela Levingston had been walking her dogs shortly before 7.30am on May 28, 2018, when she saw a car approach.
Wexford Circuit Court had heard that she moved in as much as she could from oncoming traffic, but was struck by the car being driven by Chloe Bates, who did not stop.
Ms Levingston sustained injuries to her heart that required stents, and fractures to her legs, arms, ribs and breastbone. Ms Levingston also required emergency surgery, resulting in five months in hospital, then followed by a recuperative period in a wheelchair.
Bates (aged 21) of Summerfield, Ballycale, Gorey, was sentenced to 12 months' imprisonment for the careless driving charge at the circuit court last month and was given a four-month concurrent sentence for the hit-and-run by Judge Cormac Quinn.
Today, the Court of Appeal judged Ms Bates' sentence excessive and cut her jail term down to eight months.
Mr Justice George Birmingham, presiding with Mr Justice John Edwards and Ms Justice Úna Ní Raifeartaigh, said the court found that the mitigating factors in the case needed to be reflected in a greater reduction from the headline sentence of 18 months provided by the sentencing judge.
Mr Justice Birmingham said the court had been persuaded that the failure to further reduce the sentence below 12 months was an error which justified and required the intervention of the appeal court.
Mr Justice Birmingham noted that while there was "significant co-operation" from Ms Bates in terms of attending the Garda station and making her car available for analysis, "co-operation was far from total".
Ms Bates handed in her phone but refused to give a PIN number and had twice said she would give a statement but none were made.
Ms Bates' barrister, Mr Colman Cody SC, had submitted that the sentencing judge had made an error in principle in not suspending any or all of the sentence.
He also argued that disproportionate weight had been given to her failure to remain at the scene.
Counsel said that Ms Bates thought she had hit a wall or post, had reversed but not seen anyone or anything, and had then proceeded home.
When she later heard that a person had been injured, she presented voluntarily at Gorey Garda Station, he said.
“This offsets to some extent what might be described as the aggravating factor of failing to remain at the scene,” he submitted.
Mr Cody further argued that insufficient weight had been given to the mitigating factors, which he said were all "rolled up" into one.
In his judgement, concluding that the original sentence erred, Mr Justice Birmingham noted the defence's argument that Ms Bates did not know she had hit someone and had reversed to the scene to check before continuing on.
However, Mr Justice Birmingham agreed that the offence was in the upper end of the scale of careless driving and was "below the standard of the reasonably competent driver".
Mr Justice Birmingham said that he did not disagree with Judge Quinn's headline sentence of 18 months but said there were enough mitigating factors to reduce the sentence.
Mr Justice Birmingham wrote:
"It might be possible to draw the inference that she was distracted by the fact that she was returning to engage with her mother, having stayed out the previous night without having given advance notice of an intention to do so, causing her mother to fear the worst."
The difficulties the Court of Appeal considered were around the mitigating aspects of the case in that the appellant's counsel had said the guilty pleas "would have merited a reduction of 25-33%" and "that there was significant other mitigation present, which should have been reflected in a further significant reduction," the judge ruled.
Mr Justice Birmingham said that Ms Bates was a "young woman of impeccable character, who has made a positive contribution to society", was 19 at the time and the court was pointed towards multiple testimonies to her good character.
Mr Justice Birmingham re-sentenced Ms Bates to eight months' imprisonment, with the sentence to date from June 18 last.