A 50-year-old businessman has been ordered to carry out 240 hours of community service, if suitable, in lieu of a three-year prison sentence for dangerous driving causing the deaths of a brother and sister in Co Wexford in 2017.
Gary Whelan, of Littlepace Woods, Clonee in Dublin, was convicted by a jury of dangerous driving causing death and sentenced today at Wexford Circuit Court.
The convictions relate to a crash that happened in the Barntown area, about 5km from Wexford town, on the afternoon of 1 November 2017 causing the deaths of Sylvester Dempsey, 44, and his 47-year-old sister Anne Dempsey.
They were travelling from the town towards the family home in Foulksmills when the crash happened on the N25.
A Land Rover being driven by Whelan, with another man in the vehicle as a passenger, veered on the road and collided with the Dempseys' Renault Clio.
The victims were pronounced dead at the scene while Whelan and his passenger suffered relatively minor physical injuries.
It was accepted at the trial that he had fallen asleep while driving.
His legal representatives put it to the court that he had since been diagnosed with obstructive sleep apnoea.
There was no evidence, gardaí told the trial, that Mr Whelan had taken any evasive action to avoid the collision and there were no brake marks from his vehicle.
Anne Dempsey was driving the other car and had swerved onto the hard shoulder, suggesting she tried to evade a crash.
However, her car was driven back 19m by the force of the collision.
Whelan told gardaí in a statement that he had risen at 5.45am that day and driven to Waterford for a business meeting, having collected his colleague from Walkinstown in Dublin.
He had worked as a sheet metal worker for years before setting up his own business, with the colleague, in 2008 and they employed about 50 people in Ireland and 20 more in Denmark and Sweden.
After the meeting ended at about 12.30pm, they headed towards Wexford town for another meeting.
A sleep specialist told the trial that he diagnosed obstructive sleep apnoea and that this had since been successfully treated by the use of an oxygen mask at night.
A number of factors present on the day for Whelan could have led to an "afternoon slump," the court heard, and the failure to brake was typical of a driver being asleep at the wheel.
Defence counsel said it was unfair to suggest that his client was irresponsible in driving on that day and that he had never been advised by any doctor not to drive.
A jury found him guilty on both counts.
Garda Martin Power told the sentencing hearing that a doctor had raised the possibility that a "micro-sleep" might have occurred just before the crash, because of the undiagnosed, at the time, sleep apnoea.
Victim impact statements were read out in court today by the victims' brother Noel and sister Martina.
Noel described how Sylvester had been diagnosed with a brain tumour at the age of seven and had come through treatment and major surgery, eventually working in a supermarket in the area where he was popular with everyone.
He had a stroke in 2016.
Sylvester was a keen Wexford hurling and Liverpool fan, Noel said.
"I love and miss you so much, brother, until we meet again."
He said Anne was the "brains of the house" and had recently graduated from University College Cork with a degree in law, having gone back to her studies after spending some time working and travelling abroad.
"I never got to say goodbye to you, I loved you so much, I know we will meet again," he said.
Martina Dempsey said all the family have "shed so, so many tears" since the day of the crash, and described Anne and Sylvester as "the most beautiful two souls".
There is no end to the loss, she said.
"Whatever sentence the defendant is given here today will pale into insignificance compared to the life sentence we’re living since that day," Martina said, adding that their lives had been destroyed and the family torn apart.
"Time is not a healer, but a stealer."
Whelan 'deeply remorseful' for what happened, court told
Defending, Senior Counsel John O’Kelly said this was a very unusual case as there was no high speed involved and no drink nor drugs.
Whelan was, at the time, undergoing a number of tests recommended by a throat specialist and was subsequently diagnosed with sleep apnoea.
"He now finds himself in an appalling situation, that he has to live with for the rest of his life, with the dreadful recognition that his condition on that day led to the deaths of a brother and sister."
Mr O'Kelly read out a letter written to the Dempsey family by his client in which he said he was "deeply remorseful" for what happened and would never go out with the intention of hurting someone.
He had wanted to reach out to the family since the day of the crash, he said, but legal issues prevented him from doing so.
There had not been a day since it happened when his thoughts and prayers and those of his family had not been with the Dempseys, Mr O'Kelly added.
Judge James McCourt commended the family members for their "moving" victim impact statements and for the "complete lack of demand for any sort of vengeful sentence" despite the life term that they were serving.
He said the level of culpability in this case was at the lowest level, Whelan had no previous convictions and his remorse was genuine.
The judge said the appropriate sentence was three years in prison and asked the Probation Service to assess Whelan’s suitability for community service, indicating that 240 hours of service was appropriate in lieu of a three-year jail term.
He disqualified the accused from driving for four years, and ordered him to pay €5,000 to the Irish Heart Foundation and the National Rehabilitation Hospital.
