2 C.L.R. 1976 October 20 [TRIANTAFYLLIDES, P., STAVRTNIDES, HADJIANASTASSIOU, JJ.] ATHANASSIOS STYLIANOU ATHANASSIOU, Appellant, v. THE REPUBLIC, Respondent. (Criminal Appeal No. 3755). 5 10 Military offences—Sentence—Desertion—Two months' imprisonment— Appellant suffering from severe psychological disturbances— Offences attributed to said affliction—Wrong inprinciple to send toprison aperson suchas the appellant—Proper courseimposition of suspended sentence—Which could not be resorted to because appellant had already spent in prison three weeks out of his sen tence—Sentence reduced to one of three weeks. Suspended sentence of imprisonment—Though a proper course not resorted to because appellant had already spent in prison part of the sentence. 15 | ;20 ^ ι \ I 25 The appellant appealed against a sentence of two months' im prisonment which was passed upon him by a military Court for offences of desertion from the National Guard. It was un disputed that he had been discharged for a period of six months, from the ranks of the National Guard, because he had been found by a medical board to be suffering from severe psycholo gical disturbances, due to his immature personality. Held,
(1)the offences in respect of which he was sent to ι prison are most probably attributable to the said psychological affliction and, consequently, we think that it was wrong in principle to send to prison a person such as the appellant.
(2)the appropriate course was the imposition of a suspended sentence of imprisonment; but as we cannot resort to such a course now, because, the appellant has already spent in prison three weeks out of his sentence of two months, we have decided to set aside the said sentence of imprisonment and, 17 Athaoassiou v. The Republic
(1978)• even though we would not have imposed a sentence of imprisonment had we been the trial Court, reduce the sentence passed on appellant to onefor three weeks, so that he maybe released at once. Appeal allowed. 5 Appeal against sentence. Appeal against sentence by Athanassios Stylianou Athanassiou who was convicted on the 30th September, 1976, at the Military Court sitting at Nicosia (Case No. 365/76) on one count of the offence of desertion contrary to section 29
(1)(a) 10 of the Military Criminal Code and Procedure Law, 1964 (Law 40/64) and sentenced to two months' imprisonment. D. Demetriades, for the appellant. S. Tamassios, for the respondent. The1·judgment of the Court was delivered by: 15 TRIANTAFYLLIDES P.: The appellant was sentenced, by a military Court, to twomonths' imprisonment, on September 30, 1976, for the offence of desertion from the National Guard, contrary to section 29
(1)(a)of the Military Criminal Codeand Procedure Law, 1964(Law40/64). When sentence was passed 20 upon him there were taken into consideration, at his own request, a number of other similar offences of desertion, as well as an offence of having abandoned his post. It is an undisputed fact, established by an official document which is before us, that the appellant had been discharged, 25 temporarily, for a period of six months, from the ranks of the National Guard, in which he has been serving since July 23, 1973, because he had been found, by a medical board, to be suffering from severe psychological disturbances, due to his immature personality. In the circumstances, we are led ir- 30 resistibly to theconclusion that the offences in respect of which he was sent to prison are most probably attributable to the said psychological affliction and, consequently, we think that it was wrong in principle to send to prison a person such as the appellant. Counsel for the respondent has submitted, quite fairly, that the sentence of imprisonment could have been imposed on the appellant, by the trial Court, as a suspended sentence of im18 35 2 C.L.R. Atbanassiou v. The Republic Triantafyllides P. prisonment. We agree that this would have been the appropriate course at the stage when the appellant was about to be sentenced; but, in our opinion, we cannot resort to such a coursenow, because,in themeantime,the appellant hasalready 5 spent in prison three weeks out of his sentence of two months. We, therefore, have decided to set aside the said sentence of imprisonment and, even though we ourselves would not have imposed, had we been the trial Court, a sentence of imprisonment, wethink that theonlycourse opento usnowisto reduce 10 the sentence passed upon the appellant to one of imprisonment for three weeks, so that hemay be released at once. It is, of course, hardly necessary for us to observe that had the appellant not been suffering from the severe psychological disturbances which apparently made him commit the offences 15 in question, wewould not have interfered, in any way, with the sentence imposed by the military Court, which was otherwise a quite lenient one indeed. In theresult this appeal isallowed as already indicated inthis judgment. 20 Appealallowed. 19