Careless driver who caused the death of former rugby player loses appeal against 10-month jail term

A careless truck driver, who was speeding in a defective lorry when he caused the death of former Garryowen rugby player Mark McMullen three years ago, has lost an appeal against his ten-month prison sentence.

At the Court of Appeal on Monday, Mr Justice Patrick McCarthy said that the main defect in the lorry driven by Gabor Mihalecz (65), had been a problem with the braking system, which ultimately seemed to cause the vehicle to jackknife. The judge also noted that the appellant had driven at excessive speed when taking a bend in the road.

Mihalecz, of The Cloisters, The Ninch, Laytown, Co Meath, had pleaded guilty to careless driving causing the death of Mr McMullen, at the N24, Barne, Clonmel, Co Tipperary, on 31st July, 2023.

On 20th May last at Clonmel Courthouse, Mihalecz was sentenced to ten months in prison and disqualified from driving for four years.

His legal team, led by Dermot Cahill SC, argued on Monday that the headline sentence of 20 months which was set before mitigation was too high.

Laying out the details of the incident, Mr Justice John Edwards, presiding over the three-judge Court of Appeal, noted that the appellant had been driving with a bald tyre and a load not secured on the back of the vehicle, although there had been a dispute between two prosecution expert witnesses as to whether the load moving had contributed to the jack-knifing of the lorry.

Mr Justice Edwards went on to say that the appellant had been travelling at 91km in an 80km zone and had suffered a momentary loss of attention that caused him to veer onto the incorrect side of the road. Mihalecz then braked, but because the trailer was not connected correctly, the Anti-lock Braking System did not work and the wheels locked, which caused the vehicle to jackknife, colliding with the van driven by Mr McMullan.

The judge said that the sentencing judge had characterised the gravity of the offence as being at the highest level, but a case could be made that the appellant’s culpability was not at the highest level.

Mr Cahill said that the careless driving was the appellant veering onto the incorrect side of the road, but the entire vehicle did not go across the road, only part of it. He said that there was no evidence that the appellant had been “fiddling on his phone” and nobody knew what caused him to lose concentration.

Mr Cahill confirmed to the court that his client has a very serious illness and the case had previously been delayed because he was getting treatment.

Counsel for the State, David Humphries BL, said it was accepted that the appellant’s condition was serious. He said there were a number of defects with the vehicle, including a bald tyre where the metal was showing through.

He also said that there was a problem with the 'Suzi cable' - the cable connecting the cab to the trailer - which had not displayed the proper connection light when the appellant started up the vehicle.

Mr Humphries said that heavy rolls of material, weighing 30kg each, were not secured at all on the lorry, while there were also frayed ratchet straps.

In delivering the court’s judgement, Mr Justice McCarthy said that the main defect was the braking system, which ultimately seemed to be the cause of the jack-knifing of the vehicle.

He noted there had been a debate between witnesses as to whether the absence of strapping on the heavy load had any bearing on the accident, with the sentencing judge ultimately taking a view that was favourable to the defence.

He said that the collision happened at the apex of a bend in circumstances where the driver sought to slow down and brake, but he could not achieve this, which caused the vehicle to jack-knife.

Mr Justice McCarthy said that Mihalecz's speed was excessive when taking the bend. He noted the sentencing judge reached the view that the appropriate headline sentence was 20 months, before mitigating factors. He said that aggravating factors considered were that the appellant was a professional driver and the fact that he did not notice that the green connection light did not come on when the vehicle started up.

Saying that the sentencing judge did not fall into any error in principle, Mr Justice McCarthy said that the court was dismissing the appeal.