A woman whose car collided with a motorcyclist after she failed to see him coming towards her has been given a suspended sentence for careless driving causing his death.
Earlier this week, the sister of Jose Eduardo Silba Pereira told Dublin Circuit Criminal Court that while their hearts bleed for him in the wake of his death, they do not wish any harm or pain on Kim Ng Swan (59), the driver in the incident.
Swan, of Ballycullen View, Ballycullen, Dublin, pleaded guilty to one count of careless driving causing the death of Mr Pereira (36) at Kimmage Road West on December 30th, 2021. She has no previous convictions.
The court heard that on the night in question, Swan was turning right and did not see Mr Pereira, who was travelling towards her in the opposite direction. He collided with Ms Swan's car, was thrown from his motorbike and died at the scene from his injuries.
Sentencing Swan on Friday, Judge Orla Crowe said it was a “very, very tragic set of circumstances” that had brought Mr Pereira's family members to court.
“An extraordinary feature of the victim impact statements from his sister and widow was the absence of any animosity,” the judge said. “It is a mark of huge compassion and grace towards someone who was in Ms Swan's position.”
The judge said Mr Pereira was “highly cherished, loved deeply and missed by everybody”. His loss was “immeasurable,” she noted.
Judge Crowe noted that Swan was not speeding, was not distracted nor on her phone at the time of the accident, but she failed to see Mr Pereira coming towards her when she made the right turn, the court heard.
“She simply should have seen in the eight seconds the motorbike coming towards her,” the judge said. “It was going beyond the speed limit, but there was eight seconds during which she failed to see it.”
It was a “momentary lapse of attention” that had “catastrophic consequences” for Mr Pereira and his family, she said. “It's also a huge burden for the defendant to bear.”
The court heard the maximum penalty for careless driving causing death is two years. Judge Crowe ruled there was no aggravating factors in the case, and a number of mitigating circumstances, including the fact that Swan has no previous convictions, has contributed to her community, cooperated fully with gardaí and had expressed remorse.
Judge Crowe handed down a sentence of nine months, which she suspended fully. She also disqualified Swan from driving for a period of one year.
Dashcam footage
Dashcam footage taken from Swan's car of the incident, which occurred shortly after 9pm on the day in question, was shown in court earlier this week. In the footage, Swan could be seen turning right in the path of Mr Pereira's motorbike, which then crashed into the front of her car, causing her to scream.
The court heard she was extremely distressed in the wake of the accident and remained in her car in a state of shock until gardaí arrived. She offered “unqualified cooperation” to the garda investigation, including handing over her dash cam footage, the court heard.
Detective Garda Peter Lyons told Garrett McCormack BL, prosecuting, that it was a rainy evening and conditions on the road were wet. A forensic report found Mr Pereira was travelling at around 80 km/h in a 50km zone.
No “external factors” such as intoxication, distraction or being on a mobile phone were found in Swan's case, the court heard. The motorbike was visible on the dash cam footage for eight seconds prior to the collision.
Two witnesses to the crash told gardaí they did not see Swan indicate right before turning. She told gardaí she always indicated before turning.
The court heard Mr Pereira was a Deliveroo driver, was originally from Portugal and had been living in Ireland since 2001.
His sister told the court that he was a young man with dreams and ambitions – their “pride and joy”. He was proud of his military service and also worked as a chef, she said.
Mr Pereira was a youngest son whose mother's eyes would light up every time she saw him, the court heard. “Christmas, New Year's, birthdays – all of the magic is now gone and all joy as well,” his sister said.
“Neither me or my mom wish harm or pain on the person that led to my brother's death,” she said. “Justice should be done but it will never bring him back to us. I believe the knowledge of being responsible for someone's death is painful enough for any human being.
“I can't feel anger for the person who crossed paths with my brother and caused his death.”
Mr Pereira's sister concluded her statement by saying: “Our hearts bleed but we will try to make him proud and try to find joy and happiness in his memory.”
Mr Pereira's widow was not present in court and her victim impact statement was read out by counsel. She said she misses him all the time and had to leave Ireland after the accident, as everything reminded her of him.
She said she found some sense of peace after visiting an Evangelical church. She told Swan: “I forgive you.”
Det Gda Lyons confirmed to David Staunton BL, defending, that Mr Pereira's family hold no animosity to Swan.
Mr Staunton noted Mr Pereira's speed at the time of the accident and said Swan's car had slowed to 17km/h as she navigated the turn. Det Gda Lyons agreed that had Mr Pereira being travelling at the speed limit, it is likely Swan might have completed the turn in time.
Mr Staunton said the root cause of the accident was Swan not seeing Mr Pereira's motorbike. “She is fully appreciative of the fact she is the sole cause of this accident.”
He noted that although the bike was visible on the dashcam for eight seconds, this did not equate to it being visible to the human eye for that length of time.
The court heard Swan is originally from Malaysia and moved to Ireland to do the Leaving Certificate in 1981. She got a degree in marketing and studied childcare. She has been married for 29 years, has three sons and has devoted herself to her family and community, the court heard. A number of testimonials were handed into court.
Mr Staunton said Swan has been profoundly affected by the incident and had a letter in court to give Mr Pereira's family. She has suffered PTSD and has not driven since the accident. “It's a terrible burden for her that she has caused this death,” he said.
