THE COURT of Criminal Appeal yesterday overturned a judge’s decision to apply the Probation Act in the case of a former garda who had appeared on a charge of assault causing harm.
The judges of the appeal court had imposed a six-month suspended sentence instead after the Director of Public Prosecutions (DPP) argued that the case had been dealt with too leniently.
The Chief Justice, Mr Justice John Murray, presided in the case in which the DPP sought to have the decision of Cork Circuit Court overturned on the grounds of undue leniency.
Last February, Michael Kiernan, then 53, had pleaded guilty to assault causing harm to a 21-year-old UCC student at Hanover Street, Cork, on February 23rd, 2007. He received the Probation Act and entered into a bond to be on good behaviour for three years.
The student, who did not wish to be named, had been with a group of friends on Grand Parade on the night in question. He told investigators from the Garda Síochána Ombudsman Commission (GSOC) that some of his friends were being shoved by gardaí, so he came up behind Garda Kiernan and pushed his hat off before fleeing with his friends. He was pursued by two other gardaí on bicycles and a squad car.
The student was held against the wall until the patrol car arrived. Garda Kiernan got out, made no attempt to arrest him but hit him a blow on the head that knocked him unconscious. He was treated at Cork University Hospital for a wound to the head and concussion.
Ray Boland, for the DPP, said yesterday that seven months later the respondent retired from the force with seven years left to serve. The injured party applied to the Personal Injuries Assessment Board for an assessment of compensation for injuries, which were assessed at €90,000, plus costs. This had been paid in full by Mr Kiernan.
In sentencing Mr Kiernan, the trial judge had said the garda’s retirement and payment of compensation indicated to him that Mr Kiernan was unlikely to reoffend, and in all the circumstances he believed that the Probation Act was the most appropriate way to deal with the case.
The position of the DPP was that the Probation Act was below the range of sentences available for this offence. The lowest available sentence was a suspended sentence. A suspended sentence marked the seriousness of the offence.
Giving the appeal court’s decision, Mr Justice Murray said that this was a single act after 30 years of exemplary service in An Garda Síochána. “Having said that, if a Garda officer abuses his position and commits an assault it is a very serious offence. The court agrees with the director on this, it should normally involve a custodial sentence. This court is of the view that the court erred in principle given the seriousness of the offence. A suspended sentence should be imposed of six months’ imprisonment.”