O'Donoghue v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Kerr and Collett, JJ.A.)
• Judgment Date: 10 December 1998
• Court: Court of Appeal (Cayman Islands)
• Date: 10 December 1998

Court of Appeal

(Zacca, P., Kerr and Collett, JJ.A.)

O”DONOGHUE

and

R.

N.W. Hill, Q.C. and J.R. McDonough for the appellant;

A. Roberts, Senior Crown Counsel, for the Crown.

Cases cited:

(1) -R. v. Boswell, [1984] 1 W.L.R. 1047; [1984] 3 All E.R. 353; (1984), 79 Cr. App. R. 277, considered.

(2) -R. v. Ebanks (B.J.), Grand Ct., December 3rd, 1996, Case No. 18 of 1995; on appeal, C.A., August 3rd, 1998, Crim. App. No. 50 of 1996, unreported.

(3) -R. v. Ebanks (D.K.), 1984–85 CILR 432; on appeal, C.A., March 26th, 1986, unreported.

(4) -R. v. Guilfoyle, [1973] 2 All E.R. 844; (1973), 57 Cr. App. R. 549; [1973] Crim. L.R. 377, applied.

(5) -R. v. McKenzie, Grand Ct., December 12th, 1997, Case No. 55 of 1997; on appeal, C.A., April 8th, 1998, Crim. App. No. 50 of 1997, unreported.

(6) -R. v. PettipherUNK(1989), 11 Cr. App. R. (S.) 321; [1991] RTR 183, applied.

(7) -R. v. Shepherd, Att. Gen.”s Reference (Nos. 14 & 24 of 1993), [1994] 1 W.L.R. 530; [1994] 2 All E.R. 242; [1994] RTR 49, considered.

(8) -R. v. WillettsUNK(1993), 14 Cr. App. R. (S.) 592; [1993] RTR 252, applied.

(9) Rivers v. R., 1988–89 CILR 77.

Legislation construed:

Traffic Law, 1991 (Law 24 of 1991), s.67(1):

‘A person who drives a vehicle on a road dangerously or recklessly (having regard to the manner of driving or to the defective condition of the vehicle) and thereby causes the death of another person is guilty of an offence.’

Road Traffic-causing death by dangerous driving-sentence-custodial sentence appropriate if aggravating factors, e.g. influence of alcohol whether or not over limit, reckless driving and more than one victim-18 months” imprisonment for driver without previous driving convictions pleading not guilty

The appellant was charged in the Grand Court with two offences of causing death by dangerous driving.

The appellant struck and killed two pedestrians whilst driving under the influence of alcohol. She pleaded not guilty. Evidence was given at her trial that despite efforts by a friend to dissuade her from driving, and assurances by her that she would not, she had none the less driven and had done so in a manner which was reckless, resulting in the deaths of the victims who were pedestrians struck from behind while walking at the side of the road.

She was disqualified for five years and sentenced to three years” imprisonment on each count, to run concurrently, taking into account the aggravating factors of alcohol and her disregard for the safety of others but also, in mitigation, her previous good character and lack of previous convictions for driving offences.

On appeal against the custodial sentence, she submitted that it was manifestly excessive, since (a) there was no evidence that she had consumed more than the legal limit of alcohol at the time of the offence; (b) the court should not have regarded the number of deaths resulting (which was a matter of chance) as an aggravating factor; and (c) insufficient allowance had been...