THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.162/15
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court (ex tempore) delivered on the 12th day of February 2016, by
Mr. Justice Birmingham
1. This is an appeal against severity of sentence. The sentence under appeal is one of eight years imprisonment that was imposed on the 17th June, 2015, at Cork Circuit Court in respect of a s. 4 assault which had occurred on the 7th September, 2014, in Oliver Plunkett Street, Cork.
2. The basic facts giving rise to the prosecution are that on the 7th September, 2014, at approximately 2.10 am the injured party Mr. Sherzad Ismail was socialising in Cork City Centre with a friend. It appears that two men approached a female who was standing outside the Grafton Bar in the city centre. It subsequently transpired that she was the girlfriend of the appellant; each of them had been separately in the Cork city area that evening. Suddenly and without warning a blow to the head was delivered, a viewing of the extensive CCTV footage that was available, confirmed that this was a head butt. Having been struck the injured party fell and his head hit the ground heavily as he fell.
3. On that occasion Mr. Ismail did not seek medical attention, apart from the first aid that was rendered by the security personnel who were close by, but rather went home. There was some concern that he did not appear to be walking entirely normally, but nonetheless he made his way home. However, on the following day while alone in his house, after his wife had gone out to work he became ill. He lapsed into unconsciousness while lying on the sofa. His wife’s adult daughter came on the scene and naturally she was very concerned at what she saw and she called an ambulance and he was taken to hospital. At Cork University Hospital a CT scan confirmed the presence of a clot between the skull and brain which was compressing the brain. This was a very serious situation as was indicated by the fact that his wife was told to prepare for the worse, that there was just a 50/50 chance of him pulling through.
4. Mr. Ismail underwent a general anaesthetic and was ventilated. He had emergency neuro surgery and the clot was removed. After the clot was removed, the pressure in his brain was near normal. Thereafter Mr. Ismail was transferred to the intensive treatment unit where he was ventilated for several days. On the 15th September, 2014, the breathing tube was removed; Mr. Ismail was conscious but had a partial left arm weakness. He remained confused for several days and was then discharged on the 22nd September. 2014.
5. Gardaí viewed the available CCTV footage and this led to the arrest of Mr. Collins. In fairness he said at the outset that his attitude would be one of cooperation. He then went on to make certain admissions though initially denying having head butted his victim. It is to be noted that his girlfriend who was in the vicinity of the incident as we have heard, had claimed that she had pushed at the men who approached her. In interview at one stage, Mr. Collins seemed to seek to put the incident in the context of him having come to the defence of his girlfriend. This suggestion was firmly rejected by the gardaí by reference to the CCTV footage. It is of note that the sentencing judge on his own initiative viewed the tape before proceeding to sentence. It seems the very height of the situation would be that his girlfriend may have raised a hand.
6. At the sentence hearing evidence as to the impact that the incident had on Mr. Ismail was given by his wife. She stated that his whole life had changed following the assault. He had been an outgoing happy person and suddenly became withdrawn and very nervous. He experienced what were described as “huge mood swings” and she commented that she found it difficult to watch him crying on a regular basis. She explained that he was not able to do things that he would have normally done without getting very tired and having to lie down. She explained that one of the main effects of the assault was that he had been out of work and as a family they had suffered significant financial hardship. He had recently secured a job as a Turkish barber and was very happy about that but after the assault he was unable to take this up.
7. So far as the background and circumstances of the appellant are concerned, the court was told that he was born in December 1990 and that he was 24 years of age at the time of the sentence hearing. He was a HSV mechanic and he had 15 previous convictions of which 8 were under the Road Traffic Code and 6 for public order. It is to be noted that one conviction was for a s. 3 assault which resulted in him being required to undertake 100 hours of community service. Significantly this incident, which occurred when he was 18 years of age, involved head butting a doorman.
8. The court was told that he was working in a waste disposal business with which the family had connections. It seems that he had a very good work ethic and there were testimonials to this effect from previous employers. He had worked in Ireland with a number of employers previously, but had also spent something of the order of fifteen months in Australia. It is to be noted also the fact that when he was a teenager his brother to whom he was especially close, died in an accident and it appears that this had a significant impact on his development. It should also be noted at this stage and this featured in the plea of mitigation that the accused brought into court the sum of €4,000 by way of a token of recompense.
9. The grounds of appeal and the arguments that have been advanced in support of them, are that the judge erred when sentencing in seeing the offence at issue as being in the upper mid range and having done that then proceeded to impose a sentence that fell outside the range for such offences indicated by the Fitzgibbon case which would have been a range of four to seven and half years.
10. The DPP had told the Circuit Court that she saw the offence as a mid range one, but the defendant contended that the offence was at the lower end of the spectrum in that it involved a single blow and that the serious injuries which resulted were not proportionate to the severity of the assault. The judge is criticised for having taken the view that the credit for cooperation was undermined by the qualified acceptance of responsibility and is also criticised for having expressed the view that the offence may have been racially motivated, when it is said there was no evidence to support that suggestion and that the more likely explanation was a misguided “sense of chivalry” to use a phrase from the transcript. The judge was also criticised for taking into account the system that exists of part remission of prison sentences. This last point arises in circumstances where after the judge imposed the sentence that he did, counsel asked the judge to consider suspending a portion of the 8 year sentence that had been announced referring to the fact that the upper mid range of sentencing as provided by the Fitzgibbon case was at seven and a half years. The judge responded to the request by saying:
“No. no, I won’t and the reason is this. It is entirely now in Mr. Collins control how he behaves. The normal remission which any prisoner gets for good behaviour will apply to the eight year period and that seems to me to reduce the case, the sentence to an appropriate level in the future.”
11. Defence counsel responded to this by saying that that was the situation in the case of every sentence imposed. In response to that intervention the judge commented that he had to look at what was the appropriate period of time that the accused should spend in prison.
Comment
12. Counsel on behalf of the Director today, draws attention to the fact that this exchange in relation to remission took place after the judge had announced what sentence he was imposing. That is so, but while that may be so, it is the case that the judge would seem to have been indicating that he was required to have regard to and was having regard to the period that would actually be served in custody.
13. The court would observe that this was obviously and indisputably a very serious offence. It was entirely unprovoked and entirely without warning and in that regard could properly be seen and was seen as particularly cowardly. A head butt delivered without warning is inherently serious. However, that said, it may be that the judge placed the offence at too high a point on the scale. He described the assault as falling into the upper mid range of sentencing and then went on to describe it as a case of an exceptional nature, of a particularly cowardly attack, of a particularly vicious attack with appalling consequences all based on the misguided chivalry of the accused. At an earlier point in his sentencing remarks the judge had observed that this was as severe and as vicious an attack as one could envisage. While the offence was obviously a serious one, unfortunately it is hard to say that the case was exceptional or that it was as severe and vicious an attack as could be envisaged. The case in the view of the court could not bee seen as falling in the low range and at best from the perspective of the appellant it should be seen as a mid range offence.
14. This was a case where the accused went into the witness box in order to apologise. It would seem that he did not create a favourable impression on the judge because the judge focused on a remark made by the accused that he was sorry for what happened, that he did not mean to cause him, that is to say the victim, that much harm. The judge felt that the only possible interpretation for that was that the accused intended to cause some degree of harm. This Court is prepared to accept that what was meant was, that the severe and indeed life long consequences that have resulted were not and were never intended.
15. In relation to the judge taking account of the fact that the offence may have been racially motivated. He was prompted to do this by a sentence in the probation report which quotes their client as saying “he (that is the accused) says he watched two foreign nationals cross the road to his girlfriend”. By reference to this sentence the judge said that he felt that it was highly probable that the attack had some element of racism to an unspecified degree.
16. It is not clear what role if any, this concern about a possible racist motivation had when it came to the selection of sentence. Undoubtedly it is the case that if an offence is racially motivated that that would be regarded as an aggravating factor.
17. The court is of the view that a combination of factors lead to the conclusion that the sentence imposed is not one that can stand. The court sees this as a mid range offence and sees it as an offence where there are mitigating factors present in terms of the cooperation, in terms of the plea, in terms of the offer of a sum of money by way of recompense, very limited as that was and in terms of the fact that this was going to be the first occasion that the appellant was going to be required to spend time in prison.
18. That being so the court being of the view that the sentence cannot stand, the court therefore is required to sentence as of today’s date. This morning a number of testimonials in two booklets were handed to the court. These comprised a number of testimonials from former employers, the GAA club with which he was active, indications of how he has been spending his time in custody and in that regard of note is that he is addressing and now seems aware of his difficulties with alcohol. Also included in the booklets was a letter from his parents as well as an impressive letter from Mr. Collins himself.
19. The court in deciding the appropriate sentence as of today’s date takes all of these matters into consideration. The court is of the view that as a mid range offence with mitigating factors that in the circumstances, the appropriate sentence was one of five years imprisonment. The court however, is also of the view that it is desirable that when Mr. Collins completes his sentence and returns to the community, that there should continue to be an incentive for him to behave, an incentive for him to remain out of trouble and an incentive for him to be and to remain of sober habits and in order to provide that incentive, the court will suspend the final twelve months of the five years. That would be on his entering into a bond to keep the peace for a period of two years following his release from custody.
