Irish Court of Criminal Appeal

THE COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

Hanna J.

[Record No. 39 CJA/08]

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

V

NASSER SAID

RESPONDENT

JUDGMENT of the Court (ex tempore) delivered the 9^th day of June, 2008 by Kearns J.

This is an application brought on behalf of the Director of Public Prosecutions under Section 2 of the Criminal Justice Act 1993.

On 23^rd January, 2008 at Kilkenny Circuit Court the respondent pleaded guilty to an assault causing harm under Section 3 of the Offences

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Against the Person Act 1997 and was sentenced to two years imprisonment which said sentence was suspended.

The offence in question occurred in a hotel night club in Kilkenny and the victim, Mr. Brian Mulhern was an innocent bystander when some sort of incident occurred involving the respondent and some other men. It would appear, or at least it has been asserted on behalf of the respondent without contradiction from the prosecution, that he was subjected to some racial and other abuse and was shoved about. He had apparently a pint glass, or some sort of glass of beer, in his hand and his intention was to throw the beer at the person he thought was responsible for these remarks, but in so doing the glass came in contact with Mr. Brian Mulhern, who, as already noted, was a completely innocent bystander in the circumstances.

The respondent is aged thirty, he is a native of Somalia and an asylum seeker in this Country whose application to remain here apparently has been successful.

In mitigation it was urged in the court below that he had no previous convictions and that in the incident in question there were possibly two sides to the story and that accordingly the learned Circuit Court judge was entitled to take the view that a short suspended sentence was appropriate.

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In the course of imposing sentence Her Honour Judge Buttimer stated that something that the Minister might do by way of deporting the respondent could be a far greater sentence than any sentence she might impose, but really there was no hard information or evidence to warrant any such assertion because it was merely a line or two on the probation report and, as it subsequently transpired, the respondent was not deported. The Court is satisfied in those circumstances that there was an error in principle in factoring in, to the extent that was done, that particular consideration in this case.

However, that does not dispose of the matter because the Court has to consider what sentence it would regard as appropriate in the circumstances and the Court is satisfied that there is no evidence of pre­meditation in this case.

It was a most unfortunate incident from the point of view of the victim who is clearly an innocent bystander, but equally it has not been controverted or contradicted that the respondent may have been provoked with racial abuse immediately before he lost control and swung out with the glass. Again, his assertion that he intended simply to throw the contents at the person who had been abusing him and inadvertently made contact with Mr. Mulhern is not being contraverted either and in those circumstances the Court takes the view that the suspension of the sentence, was in those unusual circumstances, justified, particularly

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