Philip McCoy v R

¶ AN ISL


IN THE CARG
ANDS COURT OF APPEAL


HOLDEN AT 9
TH TOWN, GRAND CAYMAN


C.I.C.A.
EO Cam


5/
PHILIP CHRISTOPHER MCCOY


REGINA


BEFORE：
Mr. the Honourable The President, Mt. Justice Edward Zacca


ember
the Honourable Mr. Justice Telford Georges， J.A.


APPEARANCE
the Honourable Mr. Justice James S. Kerr， J.A.


For the App
Mr. Norman Hill， QC， and Mr. Graham Hampson


For the Crt
Ms. Lorna Lilbert


Heard：
Ng Oct 27， 1989


gre
of C


of C


JUDGMENT


F


th


The app， 1988 aded guity to causing death by dangerous driving.


On the fa the a onted the trial judge found that the appellant， while


driving aut body on Drive from Rum Point towards Old Man Bay， had


collided ought at force with the deceased， Hortor Ainsley McCoy.


At


the momen ro lision the appellant's vehicle was on the wrong side


of the road


of the road


th place some time in the early hours of December 27，


1988. THY
thf the deceased was not discovered until 8：10 a.m.on


December 6.
Under caution， the appellant admitted having been


involved 4
ccident. He had， apparently， been aware that he had


hit somet
had not been aware what it was that he had actually


ES
hit. He it may have been a tree. The body had been found in


He PP
ushes of lo road. The appellant had not reported the accident.


la


Wi
lowmitigation it was urged that he had fallen asleep at


the wheel th si result of which he had driven the car off the road and


collided f
deceased.


hi


Wi， ha

¶ The appeal at the time a fireman. He had worked a double shift that day, wearing to do so in place of a fellow worker who had reported at 11 a.m. His spell of duty had begun at 8:30 a.m. December 25 and had ended at 1:40 p.m. on December 26, 1988.

¶ There was no evidence that he had taken a diet pill, Luromine. In some cases, such as this, it can induce drowsiness. The appellant had also been drinking the day before the celebration of the Christmas season.

¶ The trial concluded that, giving the appellant the benefit of every possible doubt, the appellant's consumption of alcohol was a factor which contributed to his dangerous manner of driving. He also noted that the circumstances of the accident would never be known, partly because of the appellant's failure to report it as he should have done. There is no evidence that he ever returned to the area to discover why he must have hit.

¶ The trial concluded that the case fell into the more serious category of causing death by dangerous driving. This cannot be serious unless it is in the first degree. Applying the tests laid down in R. v. Boswell (1988), there were two aggravating factors: the appellant was affected by the consumption of alcohol, and he had failed the DAP at the time of the accident or to report it. This was not a part momentary inattention or misjudgment. A custodial sentence appears appropriate.

¶ Mr. Hiller has submitted that the length of the sentence imposed—five years from the date of the appellant's release—tends to confirm that the trial failed to give due weight to the mitigating factors. It is a fact that the deceased was a second cousin of the appellant. They lived in the same district and were close. It is clear that the appellant had caused the death of his cousin in reason for remorse. The sense of family solidarity had been destroyed.

¶ he


He urged of the diet pill and long hours of work had contributed to


the effect of alcohol. The fact that the appellant had


volunteerjudged


The trial this a id take these factors into account. Nothing new has


emerged present appeal.


In the case at the well (supra) Lawton L.J. stated at p.357：


where second e aggravating features or an aggravating feature is


present then a custodial sentence is generally necessary.


As th


ghwa as already indicated， the statistics seem to show


other general maximum term is about 12-18 months as


， say the counts. It is not easy to see why this should


Drivers who， for example， indulge in racing on the


：e of land/or driving with reckless disregard for the safety


is sen


， m


unforey will lose their liberty for two years or more."


The sent all a


osed 8 months does reflect the mitigating factors in this


case.


Clearly， C


witence will affect the appellant's career prospects


and this


tunate. The fact is that while under the influence


of drink


he in such a manner as to cause loss of life. The


penalty is


just reflect societal disapproval of driving after the


consumption of alcohol.


The appeal accordingly be dismissed and the sentence affirmed."


Delivered the day of November， 1989.


in case


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the case


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