The Court of Appeal suspended the balance of Gerard Brett’s prison sentence after finding that the trial judge had not sufficiently assessed his unusually serious health problems and their effect on his ability to cope with imprisonment. The court left his conviction and driving disqualification in place.
In an ex tempore judgment delivered on 18 December 2014, the court said Brett had pleaded guilty to driving while drunk and causing the death of Benedict Brady, who was crossing a road at Portrane, County Dublin, on 21 January 2010. The judgment said evidence showed Brett’s car weaving before the collision and that braking occurred at or after impact. It noted there was no evidence of excessive speed, while finding that the car was travelling fast enough to kill Brady. Brett’s blood alcohol reading was 266mg per litre.
The court accepted the trial judge was entitled to view the case seriously. It also recognised Brett’s guilty plea, genuine remorse and previously unblemished reputation as mitigating factors. His counsel had argued in the court below that a prison term would be particularly difficult because Brett required dialysis three times a week and had vision problems. The appeal court said it would not treat his eyesight as an aggravating factor: the issue had not formed part of the case below, and the medical report appeared consistent with deterioration after the accident.
The judgment described Brett as chronically ill and frail, with serious kidney disease, limited options for haemodialysis access and a significant shortening of his anticipated lifespan. It said his health and anticipated lifespan were relevant both to mitigation and to how he could cope with custody.
The court concluded the trial judge had erred in principle by insufficiently appreciating and evaluating those health issues. Brett had already spent about seven weeks in custody before being granted bail. The appeal court ordered the remaining sentence suspended for 18 months from 18 December 2014, subject to keeping the peace, being of good behaviour and not applying for a driving licence. It endorsed the conviction and disqualification, which was for three years from 2012.