EVRIPIDOU ν. POLICE
(1988)2 CLR 135 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1988)2 CLR 135 1988 September 15 (MALACHTOS, PIKIS, PAPADOPOULOS JJ.) YIANGOS EVRIPIDOU, Appellant, v. THE POLICE. Respondents. (Criminal Appeal No. 5023). Sentence - Careless driving - Appellant aged 23 with clean record, in need of a licence - Disqualification for 12 months - His carelessness was minimal - Disqualification discharged. Road traffic - The Rule of the road - The Rule of the Road Law, Cap. 334, section 2- When a driver is obliged to keep to the left. Sentence - Sentencing principles - The sentence must be correlated to the facts and fit the person of the offender. Appellant was driving his motor vehicle at night on an unlit road at Ayios Dhometios, 20 feet wide. The appellant proceeded in the middle of the road when the complainant attempted to cross the street when only a short distance of about 30 feet separated him from the oncoming vehicle. As could be predicted, a collision occurred that fortunately left the complainant with none too serious injuries. The appellant pleaded guilty to a charge of negligent driving. In addition to £40.- fine, the trial Judge ordered his disqualification for 12 months. Hence this appeal. Held, allowing the appeal:
(1)The collision occurred 2 ft. from the centre of the road. In accordance with s.2, Cap. 334, a driver is obliged to keep to the left side only when he encounters other vehicles on the road; otherwise, he may make reasonable use of the road such as would enable him to avoid reasonably foreseeable risks that may be encountered on his way.
(2)In the absence of evidence that appellant was going at an excessive speed carelessness was minimal.
(3)The appellant is 23 years old, with no previous conviction.
(4)Sentence must, in every case, be correlated to the facts founding the charge and fit the person of the offender. Appeal allowed. Order for disqualification discharged. Cases referred to: Constantinides v. The Police
(1988)2 C.L.R. 18; Zachariades v. The Police
(1968)2 C.L.R. 121; Louroutziatis v. The Republic
(1983)2 C.L.R. 125. Appeal against sentence. Appeal against sentence by Yiangos Evripidou who was convicted on the 20th July, 1988 at the District Court of Nicosia (Criminal Case No. 14383/88) on one count of the offence of careless driving contrary to sections 8 and 19 of the Motor Vehicles and Road Traffic Law, 1972 (Law No. 86/72) and was sentenced by Michaelides, D.J. to pay £40.- fine and was in addition disqualified from holding or obtaining a driving licence for a period of twelve months. N. Panayiotou, for the appellant. A. M. V Angelides, Senior Counsel of the Republic, for the respondents. MALACHTOS J.: The judgment of the Court will be delivered by Pikis, J. PIKIS J.: Yiangos Evripidou, the appellant, appeals against a sentence of disqualification of 12 months imposed by the District Court of Nicosia, in addition to a fine of40.--, upon conviction on a charge of careless driving (contrary to ss. 8 and 19 of the Motor Vehicles and Road Transport Law - 86/72). In the submission of counsel for .the appellant the order of disqualification was unwarranted to the extent of rendering the sentence in its entirety excessive. On that account we were invited to set aside the order of disqualification, an intervention necessary in order to reconcile punishment with the facts of the case and the circumstances of the appellant. The trial Court took the view that the circumstances of the accident were of a complexion that disclosed grave negligence on the part of the appellant; sufficiently serious to warrant disqualification of the length of 12 months notwithstanding the fact that he was a first offender and had real need for his driving licence. Counsel for the Republic, too, was of opinion that sentence is excessive and likewise submitted that it should be discharged or reduced to a much shorter period. In the submission of both counsel the sentence was out of context with the facts of the case that revealed only a border-line case of negligent driving. Examination of the undisputed facts of the case supports the submission of counsel that the trial Court misconceived the seriousness of the conduct of the appellant, an error that led him to adopt a wrong measure of punishment. The accident leading to this prosecution occurred in the following circumstances: Appellant was driving his motor vehicle at night on an unlit road at Ayios Dhometios, 20 feet wide. The appellant proceeded in the middle of the road when the complainant attempted to cross the street when only a short distance of about 30 feet separated him from the oncoming vehicle. As could be predicted, a collision occurred that fortunately left the complainant with none too serious injuries (the most serious being concussion). So far as we may gather from the reasoning of the judgment, a serious view was taken of the conduct of the appellant because of the fact that the point of impact was on the righthand side of the road judged from the direction of the appellant. In fact, the collision occurred 2 ft. from the centre of the road. Seemingly, the trial Court laboured under the impression that it is the duty of a motorist to keep at all times to the left side of the road, independently and irrespective of the absence of other traffic on the road. This is an incorrect view of the law both by reference to the statutory rule of the road, laid down in the Rule of the Road Law - Cap. 334, and analysis of the duties of a driver to other users of the road. In accordance with s.2, Cap. 334, a driver is obliged to keep to the left side only when he encounters other vehicles on the road; otherwise, he may make reasonable use of the road such as would enable him to avoid reasonably foreseeable risks that may be encountered on his way. Therefore, appellant could not have been blamed for driving his vehicle along the middle of the road in the absence of other traffic on the street. The principal cause of the accident was, no doubt, the inadvertent action of the complainant to cross the road at a time when it was evidently dangerous so to do, exposing thereby his safety to evident risks. The appeal is solely directed against sentence. Therefore, we are not concerned to review the propriety of his conviction. He pleaded guilty before the trial Court. Our task is confined to assessing the gravity of his negligence for purposes of sentence. In the absence of evidence that appellant was going at an excessive speed (the only evidence on the subject was his evidence suggesting that he was going at a speed of 25 - 30 m.p.h.), we cannot but infer that his carelessness was minimal. There was hardly opportunity on his part to take avoiding action, given the short distance that separated his vehicle from the pedestrian; nor could he be blamed for not anticipating the folly of the pedestrian. The duty to take precautions is correlated and must be proportionate to the risks that are reasonably foreseeable. The appellant is 23 years old, with no previous conviction. He obtained his driving licence two years prior to the accident. Moreover, he has reasonable need of the use of his car to enable him to drive it when off work (he is a waiter at Paphos) to his home at Nicosia. Furthermore, the complainant was compensated for his injuries. The Court of Appeal is disinclined to interfere with sentence on the ground that it is manifestly excessive, unless the element of excess is glaring and as such objectively identifiable. This unwillingness we reiterated recently in Constantinides v. Police in the context of dismissal of an appeal against an order for disqualification on a charge of careless driving. Disqualification, it must be acknowledged, is in a proper case, an apt form of punishment for negligent driving, as the Supreme Court affirmed in Costas Zachariades v. Police. In Louroutziatis v. Republic, it was emphasized that driving a motor vehicle is not an inherent right but one exercised on licence, a licence that may be revoked in the face of abuse of the right. And the Court expressed concern about the mounting number of accidents and the human and material waste associated therewith that make recourse to disqualification; as stated, «a measure necessary for the effective protection of society.» Nonetheless, sentence must, in every case, be correlated to the facts founding the charge and fit the person of the offender. The facts of the case disclose, as mentioned earlier, minimal carelessness on the part of the appellant. This fact, coupled with the clean record of appellant, ruled out disqualification as a measure of punishment. Consequently, the order of disqualification will be discharged. The appeal is allowed. The order of disqualification is set aside and the sentence imposed by the trial Court varied accordingly. Appeal allowed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο