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02/08/2021

No jail for shop staff who beat up customer after he allegedly spat during lockdown

No jail for shop staff who beat up customer after he allegedly spat during lockdown

Two shop staff who assaulted a man they believed was attempting to steal items from their workplace have been given a suspended sentence.

Dean Bheemal (33) and Victor Carvalho (23) both punched the man multiple times after CCTV appeared to show the victim spitting in the shop after they confronted him in April 2020.

A defence barrister acknowledged the reaction of the two accused had been “unjustifiable” but outlined this incident had occurred at the beginning of the first Covid lockdown when people were concerned, fearful and less was known of how it was transmitted.

Bheemal, of Adair Terrace, St Joseph Parade, and Carvalho, of Blessington Street, both in Dublin 7, pleaded guilty at Dublin Circuit Criminal Court to assaulting the man causing him harm at Spar, Mountjoy Street, on April 26, 2020.

The two men had gathered a total of €3,000 which they brought to court.

Judge Martin Nolan said there had been a confrontation between the parties and while it appeared on the video there had been a certain amount of provocation the accused men's reaction was grossly disproportionate.

He said the assault, during which the victim was hit many times, had been “very primitive” involving punching only and no use of weapons such as knives or bottles.

He noted the accused men had pleaded guilty, co-operated with the investigation and brought €1,500 each to court. He said it seemed unlikely they would come before the court again.

“I think it would be unjust to imprison them at this point,” said Judge Nolan, and imposed a two year suspended sentence on both men. He ordered that the €3,000 be paid over to the victim and that a further €1,000 be gathered by each of the men within the next 18 months.

Garda Bryan O'Sullivan told Antonia Boyle BL, prosecuting, that gardaí attended at the scene after being called by the shop and met the two accused men, who were members of staff.

Gardai spoke with Bheemal who told them there had been a confrontation with a man a few minutes prior and that the man had taken his phone before leaving. Bheemal invited gardaí to view the CCTV and they observed Bheemal and Carvalho striking the man multiple times.

Gardai identified the man in the CCTV and shortly after he attended at Mountjoy garda station to say he had mistakenly picked up the phone from the floor and that he had been assaulted.

The man was visibly distressed and had blood on his face. He advised gardaí he was going to hospital and later received a number of stitches over his eye.

He told gardaí he had been in the shop that day and put a bar of chocolate in his pocket and a pizza under his arm. He said walked towards the cashier to pay for the items before trying to put the items back but staff would not let him. He said they called him “Irish trash and a junkie.”

He said the staff members punched him to the eyes and head and he was in fear for his life before managing to leave the shop. He later realised he had picked up a phone that was not his and attended at the station to return it.

Gardai returned to the shop and obtained the CCTV. Bheemal had gone home but Carvalho was still there. He told gardaí that his manager had told him the man appeared to be stealing and he had challenged the man, who may have been barred from the shop, but he told Carvalho to “fuck off.”

Carvalho said he wanted the man out of the shop and an altercation ensued. He said the man spat on the floor and told him “I could infect you.” He acknowledged he had punched the man.

He said his phone fell out of his pocket and he saw the man picking up the phone.

Bheemal later attended at a garda station and outlined his version of events. He said the man had been observed on CCTV grabbing a bar of chocolate so he and his colleague confronted him.

He acknowledged he had given the man “a few punches” and said he had been concerned for his safety.

The garda agreed with John Moher BL, defending Bheeval, that his client had suggested that the gardaí watched the CCTV and had not realised how unjustified his reaction had been.

The garda agreed with Michael Hourican BL, defending Carvelho, that it appears on the CCTV that something in the way of spitting had been done.

Mr Moher said Bheeval's reaction had been outrageous and wholly unjustified but submitted it had been a challenging situation and he had snapped. He said there had been a failure at first to appreciate his actions were are unjustified as they were.

He handed up a letter of apology from his client in which Bheeval explained he was a diabetic and as someone with an underlying condition the incident had been a “red rag to a bull.”

He said Bheevel was a charitable, hardworking and helpful man who was promoted to manager a number of years ago. He handed in numerous testimonials outlining he had delivered groceries  to elderly and infirm people, been a role model to younger people and carried out charity work.

He said the reaction had been unjustifiable reaction but a reaction nonetheless that was not wholly without context. He submitted it was out of character.

Mr Hourican said the reaction of Carvelho was “grossly disproportionate” he was not advancing an excuse but submitted there was a context. He said the CCTV appeared to be consistent with the spitting described by his client.

He said this incident had occurred at the beginning of the first Covid lockdown when people were concerned and fearful and less was known of how it was transmitted.

Counsel handed in a letter of apology and submitted this was out of character for his hardworking client.

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