clr/1973/1973_2_1.pdf

(6)and 243 of the CriminalCode, Cap. 154—Sentence offour months' imprisonment—Undue weightgiven to Appellant's criminal record—No social investigation report before, trial Judge—But such report put before Court of Appeal—Picture of Appellant given in this report different than the onepresented to the Court below—Court of Appeal entitled to take notice of new factors stated inthe report inapproachingthe matter of sentence— Appellant an "intermediate recidivist"—Rehabilitation measures have in his case a chance of success in view of the contents of said report—Sentence of imprisonment set aside—Probationorder substituted therefor. Young offenders—Sentence—Social Investigation Report—Desirability that trialJudges should have before them such a report if they are contemplating sending to prison a person of a relatively young age—Cf supra. Social Investigation Report—Desirability—Young Offenders—See supra. 1 1973 Jan. 22 *Appealagainst sentence—See supra. Assault—Sentence—See supra. LAMBROS PH. MOUSOULIDES V. THE POLICE The facts sufficiently appear in thejudgment of the Supreme Court, allowing this appeal against sentence, setting aside a sentence of four months' imprisonment for assault and substituting therefor a probation order. Cases referred to• Stylianouv. TheRepublic'mi C.L.R.265; The Attorney-Genera! v. Stavrou,1962 C.L.R. 274; Michaelv. ThePolice

(1968)2 C.L.R. 133; Skoullouv. ThePolice

(1969)2 C.L.R. 27; " * - R. v. Molins, R. v. Robson"The Times" October,

1. Appeal against conviction and sentence. Appeal against conviction and sentence by Lambros Ph. Mousoulides who was convicted on the 28th November, 1972 at the District Court of Nicosia (Criminal Case No. 13463/72) on three counts of the offences of assaulting a police officer while acting in the due execution of his duty, of assault causing actual bodily harm and of disturbance contrary to sections 244(b), 243 and 95 respectively, of the Criminal Code, Cap. 154 and was sentenced by Colotas, D.J. to four months' imprisonment on counts 1and 2, to run concurrently and he was further bound over inthe sum of£200.— for three years to keep the peace on count 3 Appellant appeared in person. A. Frangos,Senior Counsel of the Republic, for the Respondents. The judgment of the Court was delivered by:TRIANTAFYLLIDES, P.: The Appellant has been convicted, by the District Court of Nicosia, of the offence of assaulting a policeman while he was acting in the due execution of his duty, contrary to section 244(b) of the Criminal Code, Cap. 154; of an assault on the same policeman, causing him actual bodily harm, contrary to section 243 of Cap. 154; and of disturbance, contrary to section 95 of Cap.
2. 2 ; He was sent to prison for concurrent terms of four months' imprisonment in respect of the first two offences; and in respect of the third offence he was bound over in the sum of £200 for three years to keep the peace and be of good behaviour. The salient facts of the case are, briefly, as follows :On the date in question, at about 3.50 a.m., the policeman concerned saw the Appellant in a street, in Nicosia, being in the company of other persons and apparently attempting to annoy a foreign tourist. When the Appellant was asked to produce his identity card he refused to do so; then, he was requested by the policeman to accompany him to a police station, so that his identity could be checked; he refused to comply and when the policeman tried to arrest him he resisted and in doing so he assaulted the policeman, causing him bodily harm, which was, fortunately, nothing more than a few bruises. On the basis of the above facts, which have been established by evidence adduced at the trial, we havemet with no difficulty at all in rejecting the appeal against conviction; the conviction on all three counts was, in the circumstances, amply warranted. We have decided, in accordance with our established practice, to treat this appeal, which was filed by the Appellant from prison without the assistance of counsel, and which is based on a vague ground, namely that the Appellant is innocent ("ΕΖμαι αθώος") as an appeal against sentence, too. The trial Judge took a serious view of this case and stressed that police officers have to be protected in the execution of their duties; and we fully share this approach. The trial Court took, also, into account the criminal record of the Appellant, which, starting in 1963 and stretching up to 1969, includes twelve previous convictions, although he is as yet only twenty-three years old. We think, however, that the trial Court has given undue weight to such record; most of his past offences were committed by the Appellant at a time when he was still a very young person and none of his previous con­ victions relates to an offence involving violence against the person; they are for offences of an altogether different nature. The trial Judge has stated that,because of the criminal record of the Appellant, he thought that it would be superfluous to ask for a social investigation report about him. Ithas, however, 3 1973 Jan. 22 LAMBROS PH. MOUSOULIDES v. THE' POLICE 1973 Jan. 22 LAMBROS PH. MOUSOULIDES v. THE POLICE been stressed by this Court more than once that when a trial Judgeiscontemplatingsendingtoprison aperson ofarelatively young age—such as theAppellant—a socialinvestigation report should always be asked for (see, interalia Stylianouv. The Republic,1961 C.L.R. 265, The Attorney-General v.Stavrou 1962, C.L.R.274, Michael v. ThePolice

(1968)2 C.L.R. 133, and Skoullouv. The Police

(1969)2 C.L.R. 27). We have secured, with the assistance of counsel for the Respondents—whose fair stand in this case wedo appreciate— a socialinvestigation reportwhichclearly showsthat theAppellant, has, in the interval of time since his previous sentence, been married, has given up antisocial habits and has been trying hard to earn his living. We, thus, have before usnowa different picture of him than the one which was presented to the trial Court; there are new factors before us of which notice can be taken in approaching the matter of the sentence (see, in this respect, R. v. Molins, R. v. Robson reported in the London "Times" on the 27th October, 1972). The Appellant appears to be what is described by D. A. Thomas, in his book " Principles of Sentencing" (at p. 20), as an "intermediate recidivist"; it is stated by the learned author that he uses this expression "to describe a person between the ages of twenty and forty who has a number of previousconvictions and a corresponding experience of institutional life, who appears to be developing into a persistent recidivist without havingreached the stageofinstitutionalization wherethechance of successful rehabilitation is remote"; and it is added that the judicial policy now is "to attempt a rehabilitative measure in such cases, even where there is a substantial risk of failure, if there is some factor inthe situation which suggests that thereis a chanceofsuccess". Wedothinkthat whatwehavementioned hereinbefore, as emerging from the social investigation report, are factors which do suggest that a rehabilitative measure has inthiscaseachanceofsuccess. Suchacoursehasbeenadopted in a case of the same nature such as that of the present one: In " Principles of Sentencing", supra(at p. 102), reference is made to the case of Baker (unreported, decided on the 6th April, 1966) where the Appellant punched a policeman who stopped him after he had broken into a house; the Appellant, a man of thirty-five, had spent almost eight years continuously in prison, and although the Appellate Court considered that 4 sentences totalling three years were "extremely lenient", it nevertheless substituted a probation order in the hope that the Appellant would "reform before he spends the rest of his life in prison". -In the light of all the foregoing considerations, and bearing, too, in mind that theAppellant hasalready spent two months inprison,wehavedecidedtosetasidethesentencesofimprisonment imposed in respect of thefirst twoof the aforementioned -offences-and-substitute in their place a probation order, under section 5

(1)of the Probation of Offenders Law,Cap. 162; so, wehereby order that the Appellant be placed under the supervision of a probation officer till the expiry of two years from -the date of his conviction and.that, as he has his home in the District of Famagusta, he shall reside, for the purposes of the probation order, in that District. The sentence in respect of the third-offence remains unaltered. _ The appeal against sentence is, therefore, allowed to the extent stated above. Appeal allowed. 5 1973 Jan. 22 LAMBROS PH. MOUSOULIDES v. THE POUCE