The DPP yesterday lost his appeal against the "undue leniency" of a five-year sentence imposed on a young man for killing another during a row at a Dublin fast-food restaurant.
Afrim Xhafa (24), a father of one child, had pleaded guilty in the Central Criminal Court to the manslaughter of Mr Liam Martin (23), of Cabra Park, Phibsboro, and to unlawfully wounding Mr Bekrija Hoti, a doorman, during a melee at the Abrakebabra restaurant in Upper O'Connell Street on June 17th, 1997.
Last January he was jailed for five years on the count of manslaughter and three years on the wounding count, both sentences to run concurrently from the date of his arrest.
At the Court of Criminal Appeal yesterday, Mr Dennis Vaughan Buckley SC, for the DPP, argued that the sentence was unduly lenient. He said the dead man, an off-duty security guard, had been stabbed 12 times during the row, including two stab wounds to the chest area which proved fatal.
Counsel agreed Xhafa appeared to have been subject to racial abuse but said this did not entitle him to kill someone. There had been words exchanged between the deceased and the accused at a pub prior to the row in the restaurant. He agreed it appeared Mr Martin had threatened to kill Xhafa in the restaurant and Xhafa had retorted that Mr Martin would be the one to be killed.
Opposing the appeal, Mr Anthony Sammon SC, for Xhafa, said the DPP had decided not to proceed with a murder charge. He said the sentence was lenient but reflected a considered decision by the judge who took all relevant matters into account. Xhafa had suffered massive instability in his young life because of the awful events in the Balkans and the judge had attached considerable weight to his prospects for rehabilitation.
Mr Justice Barrington, sitting with Mr Justice McCracken and Mr Justice Kearns, said the melee was preceded by some form of conflict in a pub between a group of Irishmen, including Mr Martin, and a group of Albanians including Xhafa.
The Albanians left the pub and went to Abrakebabra. They were followed by the Irish and words were exchanged. It appeared Mr Martin threatened to kill Xhafa, who was assaulted in the face, and a melee ensued. Xhafa pulled out a knife and savagely attacked Mr Martin and the security man, Mr Hoti, who tried to intervene.
Mr Justice Barrington said the trial judge, Mr Justice O'Donovan, was a very experienced judge who had adverted to all aspects and took a serious view of the fact that Xhafa had a knife.
The trial judge had also adverted to mitigating circumstances, including that the accused man had pleaded guilty at his trial and had been subject to provocative remarks and an assault immediately prior to the incident which led to the death of Mr Martin. The trial judge also took into account Xhafa was a stranger to Ireland who had lost contact with his family and for whom a prison sentence would be more traumatic than for a native.
The trial judge clearly took the view that Xhafa's behaviour, however savage, was "once off". He had received a probation report which concluded Xhafa could be rehabilitated.
Mr Justice Barrington said he did not think he could say the Court of Criminal Appeal would impose the precise sentence, but the court was not satisfied the trial judge had erred to such an extent the court would feel justified in interfering.
