Philip McCoy v R

¶ <table>
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<td>AN ISL</td>
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<td>IN THE CARG</td>
<td>ANDS COURT OF APPEAL</td>
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<td>HOLDEN AT 9</td>
<td>TH TOWN, GRAND CAYMAN</td>
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<td>C.I.C.A.</td>
<td>EO Cam</td>
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<td>5/</td>
<td>PHILIP CHRISTOPHER MCCOY</td>
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<td>REGINA</td>
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<td>BEFORE：</td>
<td>Mr. the Honourable The President, Mt. Justice Edward Zacca</td>
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<td>ember</td>
<td>the Honourable Mr. Justice Telford Georges， J.A.</td>
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<td>APPEARANCE</td>
<td>the Honourable Mr. Justice James S. Kerr， J.A.</td>
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<td>For the App</td>
<td>Mr. Norman Hill， QC， and Mr. Graham Hampson</td>
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<td>For the Crt</td>
<td>Ms. Lorna Lilbert</td>
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<td>Heard：</td>
<td>Ng Oct 27， 1989</td>
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<td>gre</td>
<td>of C</td>
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<td>of C</td>
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<td>JUDGMENT</td>
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<td>F</td>
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<td>th</td>
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<td>The app， 1988 aded guity to causing death by dangerous driving.</td>
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<td>On the fa the a onted the trial judge found that the appellant， while</td>
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<td>driving aut body on Drive from Rum Point towards Old Man Bay， had</td>
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<td>collided ought at force with the deceased， Hortor Ainsley McCoy.</td>
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<td>At</td>
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<td>the momen ro lision the appellant's vehicle was on the wrong side</td>
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<td>of the road</td>
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<td>of the road</td>
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<td>th place some time in the early hours of December 27，</td>
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<td>1988. THY</td>
<td>thf the deceased was not discovered until 8：10 a.m.on</td>
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<td>December 6.</td>
<td>Under caution， the appellant admitted having been</td>
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<td>involved 4</td>
<td>ccident. He had， apparently， been aware that he had</td>
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<td>hit somet</td>
<td>had not been aware what it was that he had actually</td>
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<td>ES</td>
<td>hit. He it may have been a tree. The body had been found in</td>
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<td>He PP</td>
<td>ushes of lo road. The appellant had not reported the accident.</td>
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<td>la</td>
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<td>Wi</td>
<td>lowmitigation it was urged that he had fallen asleep at</td>
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<td>the wheel th si result of which he had driven the car off the road and</td>
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<td>collided f</td>
<td>deceased.</td>
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<td>hi</td>
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<td>Wi， ha</td>
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¶ 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.

¶ <table>
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<td>he</td>
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<td>He urged of the diet pill and long hours of work had contributed to</td>
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<td>the effect of alcohol. The fact that the appellant had</td>
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<td>volunteerjudged</td>
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<td>The trial this a id take these factors into account. Nothing new has</td>
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<td>emerged present appeal.</td>
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<td>In the case at the well (supra) Lawton L.J. stated at p.357：</td>
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<td>where second e aggravating features or an aggravating feature is</td>
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<td>present then a custodial sentence is generally necessary.</td>
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<td>As th</td>
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<td>ghwa as already indicated， the statistics seem to show</td>
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<td>other general maximum term is about 12-18 months as</td>
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<td>， say the counts. It is not easy to see why this should</td>
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<td>Drivers who， for example， indulge in racing on the</td>
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<td>：e of land/or driving with reckless disregard for the safety</td>
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<td>is sen</td>
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<td>， m</td>
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<td>unforey will lose their liberty for two years or more."</td>
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<td>The sent all a</td>
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<td>osed 8 months does reflect the mitigating factors in this</td>
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<td>case.</td>
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<td>Clearly， C</td>
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<td>witence will affect the appellant's career prospects</td>
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<td>and this</td>
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<td>tunate. The fact is that while under the influence</td>
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<td>of drink</td>
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<td>he in such a manner as to cause loss of life. The</td>
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<td>penalty is</td>
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<td>just reflect societal disapproval of driving after the</td>
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<td>consumption of alcohol.</td>
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<td>The appeal accordingly be dismissed and the sentence affirmed."</td>
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<td>Delivered the day of November， 1989.</td>
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<td>in case</td>
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<td>be</td>
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<td>the case</td>
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<td>is</td>
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<td>of</td>
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<td>he</td>
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<td>imp</td>
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<td>al</td>
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