A driver who struck and seriously injured an 88-year-old pedestrian after suffering a “momentary lapse in concentration” has seen her driving ban reduced, after the Court of Appeal found the law on mandatory disqualifications was erroneously interpreted.
Tanya Kirwan (40), Killisk, The Ballagh, Co Wexford pleaded guilty to careless driving causing serious bodily harm at Wexford Circuit Court on July 7th, 2022. Judge James McCourt imposed a one-year suspended sentence and disqualified Kirwan from driving for a period of four years.
The court heard Kirwan had been returning to work after lunch at 2pm on February 22nd, 2021, when she struck Laurence ‘Larry’ Leacy causing him serious bodily harm.
Kirwan made admissions at the scene that she had “clipped” the victim and this was supported by photographic evidence showing damage to the vehicle was restricted to the wing mirror only.
She initially left the area but immediately returned after driving the short distance home where she collected her husband.
Kirwan’s car was in good condition, her documents were in order, and she was not under the influence of any intoxicant at the time.
The victim was airlifted to Tallaght Hospital and was later transferred to Beaumont Hospital where he subsequently passed away.
The sentencing hearing was told Mr Leacy had incurred spinal fractures, a fractured tibia and a lacerated scalp. While in hospital he suffered kidney failure and the immediate cause of death was a respiratory tract infection.
Delivering judgement at the Court of Appeal on Monday, Mr Justice Patrick McCarthy said the matter came to court after some lapse of time and due to what some might consider an articulation or a development in the law some time ago.
“The Consequential Disqualification Order (CDO) which had been imposed was conceived to be a mandatory order whereas in fact it was a discretionary order,” said the judge, adding this amounted to an error in principle.
Mr Justice McCarthy said the three-judge court would quash the original sentence and four-year driving ban and impose a disqualification of two years and four months in its place, backdated to July 7th, 2022.
The judge noted the disqualification would therefore be served as of the end of today.
Mr Justice McCarthy said the court was of the view that the sentence of one year imprisonment suspended in full by the sentencing judge was the appropriate sentence in this case.
“We’ll impose the sentence of one year and suspend it unconditionally because we are required to impose it de novo [anew] in every sense,” he said.
At the appeal hearing on Monday , Jordan Fletcher BL, representing Ms Kirwan, submitted that the sentencing judge “erroneously” applied a Consequential Disqualification Order (CDO) of four years in addition to the one year suspended sentence in circumstances where both the defence and prosecution counsel were of the belief that the Circuit Criminal Court was bound to do so.
He said this was grounded in a 2017 Court of Appeal decision which was later overturned in a subsequent judgement in 2022 when the three-judge court held that a CDO only arises if there have been at least two previous offences contrary to Section 52 committed within three years prior to the offence.
Mr Fletcher said his client has no previous convictions.
He said Kirwan has three children and transport to school for one member of the family had become an issue as the bus is a lottery system and her child had not been given a place on the bus this year. He said the family live in a rural area of Wexford and the school is some distance away.
The barrister said Kirwan had previously worked as a legal secretary but now works full-time in a customer service role and is someone who is well thought after in her work.
He said she was “genuinely remorseful” for what happened and had been to bereavement counselling as a result of this incident. He said what happened had been a “momentary lapse in concentration” on her part.
