(1979)1979 May 4 [TRIANTAFYLUDES, P. L. LOIZOU A N D MALACHTOS, JJ.] GEORGHIOS FASOULIOTIS, Appellant. v. THE POLICE, Respondents. (Criminal Appeal No. 4032). Findings of trial Court—Based on credibility of witnesses—Appeal— Principles applicable. Criminal Law—Sentence—Common assault and public insult— Sixty-seven years old retired judicial officer slapped twice and spat on the face—Two months' imprisonment—Appellant thirtyfive years old, a first offender and not a person in need of reform through imprisonment-Personal circumstances of the appellant— Though custodial sentence dulyjustified, a shorter sentence would serve sufficiently its main deterrent purpose—Sentence reduced. The appellant was convicted of the offences of common assault and public insult and was sentenced to two months' imprisonment in respect of the assault and the other offence was taken into consideration. 5 10 According to the evidence of the complainant, a sixty-seven years old retired judicial officer, he was on May 25, 1978, driving 15 his car along Santa Roza avenue in Nicosia, when, on seeing the driver of a car, which was proceeding ahead of him, switch on and off, alternatively, its rear indicator lights, blew his horn in order to warn the driver of the other car of the danger of a possible collision. The said driver was the appellant. Eventually 20 the two cars stopped near to each other at the traffic lights of a nearby road junction and there the appellant alighted from his car and approached that of the complainant and slapped him twice, once on each cheek, whilst he was still sitting in his car; the complainant did not retaliate in any way by acts or words, 25 but when the lights changed into green he proceeded across the 180 2 C.L.R. 5 Fasouliotis τ. Police road junction and, having turned right, he stopped, his car, and noted down on a piece of paper the registration number of the car of the appellant. The appellant turned,also, to theright and stopped his car next to that of the complainant;he alighted once again, approached the complainant and spat at him; he, also, insulted him. The appellant denied that he had either assaulted the com—""^~~" plainant.or insulted him or spat at him. 10 15 20 25 The trial Judge did not believe the evidence of the appellant, who, together with the complainant,were the only two witnesses who testified atthetrialas towhat hadhappenedontheoccasion in question; and he rejected, in particular, the allegation of the appellant that the complainant was under the influence of drink at the material time. Inreaching his conclusion as regards thecredibility of thecom plainant and the appellant the trial Judge relied, inter alia,on their demeanouras witnesses before himand onthenatureof the testimony they had given. The appellant appealed against conviction and sentence. He was thirty-five years old, married with three children and a firstoffender who was not in need of reform through imprison ment. Herana furniture factory which had tomeetlarge orders for furniture, both in Cyprus and abroad, and, his absence from the management of his factory would influence quite adversely the functioning of his furniture business as a whole, as he ha ppened to be, also, the designer of the furniture made at his said factory. (I) Withregard to the appeal against conviction: 30 35 Held, unanimously, that this Court does not interfere on · appeal with findings of a trial Court based on the credibility of witnesses when it is satisfied that such findings were reasonably open to the trial Court; that it is up to the party challenging such findings to satisfy this Court, on appeal, that they are er roneous (see, inter alia, Charalambides v. HjiSoteriou &Sonsand Others
(1975)1C.L.R. 269 at p. 277); that theappellant has not only failed to satisfy this Court that the trial Judge was wrong in believing the complainant,and disbelieving the appellant, but this Court is, also, prepared to go to the extent of saying that it is satisfied that the version of the complainant was rightly ac181 Fasooltotis τ. Police
(1979)cepted as the correct one and the version of the appellant was properly rejected as being false; and that,accordingly, the appeal against conviction must be dismissed. (II) With regard to the appeal against sentence: Held, (L. Loizou J. dissenting) that though a custodial 5 sentence was duly justified, in the present case, in view of all relevant considerations, including the personal circumstances of the appellant and the fact that a sentence of imprisonment for a period of one month is sufficient to deter the appellant and others from resorting to conduct such as the one in respect of 10 which the appellant has been sent to prison, a sentence of two months' imprisonmentwas not warranted; that,therefore,it must be treated as being so excessive as to justify interference with it on appeal; and that, accordingly, the appeal should be allowed so that the sentence shall be reduced to imprisonment of one 15 month as from the date when he was sent to prison. Appeal against conviction dismis sed. Appeal against sentence al lowed. Cases referred to: 20 Charalambides v. HjiSoteriou & Son and Others
(1975)1 C.L.R. 269 at p. 277; Achillides v. Michaelides
(1977)* 3 J.S.C. 299, at pp. 307-309; Petrou v. Petrou
(1978)1 C.L.R. 257 at pp. 266, 267; R. v. Davies [1976] Crim. L.R. 697; R. v. Moore [1976] Crim. L.R. 145; R. v. Callmeyer [1976] Crim. L.R. 267. 25 Appeal against conviction and sentence. Appeal against conviction and sentence by Georghios Fasouliotis who was convicted on the 12th April, 1979, at the Dis- 30 trict Court of Nicosia (Criminal Case N o 21066/78) on two counts of the offences of common assault and public insult contrary to sections 242 and 99, respectively, of the Criminal Code Cap. 154 and was sentenced by Artemides, D.J. to two months' imprisonment in respect of the assault and the other 35 offence was taken into consideration. St. Kittis, for the appellant. R. Gavrielides, Counsel of the Republic, for the Respondent. * To be reported in
(1977)1 C.L.R. 182 2 CUR. FasouUotls τ. Police The following judgments were given: 5 TRIANTAFYLLIDES P. The appellant has appealed against his conviction, on April 12, 1979, of the offences of common as sault, under section 242 of the Criminal Code, Cap. 154, and of public insult, under section 99 of Cap. 154; he was sentenced to two months' imprisonment in respect of the assault and the other offence was taken into consideration. The appellant has appealed against both his conviction and the sentence imposed on him. 10 The salient facts of this case are briefly as follows:- The complainant, who is a retired judicial officer, sixty-seven years old, was, on May 25, 1978, driving his car along Santa Roza avenue, in Nicosia, when, on seeing the driver of a car, which was proceeding ahead of him, switch on and off, alter15 nately, its rear indicator lights, blew his horn in order to warn the driver of the other car of the danger of a possible collision. The said driver was the appellant, who, when he was about to turn into a side road, was prevented from doing so by road works and had to drive straight on; and that is why he flashed 20 alternately his indicator lights. Eventually, the two cars stopped next to each other at the traffic lights of a nearby road junction and there, according to the evidence of the complainant, which the trial Court treated as credible, the appellant alighted from his car and approached 25 that of the complainant and slapped him twice, once on each cheek, whilst he was still sitting in his car; the complainant did not retaliate in any way by acts or words, but when the lights changed into green he proceeded across the road junction and, having turned right, he stopped his car, and noted down on a 30 piece of paper theregistration number of the car of the appellant. The appellant turned, also, to the right and stopped his car next to that of the complainant; he alighted once again, appro ached the complainant and spat at him; he, also, insulted him. 35 The next day, after the complainant had reported the matter to the police, the appellant was formally charged with the offences of common assault and public insult and he denied them. He said, in his statement in answer to the formal charge that he 183 Triantafyllides P. Fasooliotis v. Police
(1979)had heard the complainant, who was driving behind him, blowing his horn continuously, and that at the traffic lights both he and the complainant got out of their cars and there he realized that the complainant was intoxicated; so, he got back into his car and drove off without either assaulting, or insulting, or spitting at, the complainant. 5 When the appellant gave evidence on oath at the trial, he stated that, after he had heard the complainant blowing his horn, he made room for him to overtake and at that moment he noticed the complainant gesticulating with his hands in a man- 10 ner which the appellant took to be insulting conduct towards him on the part of the complainant. When their cars stopped at the traffic lights the appellant— according to his evidence at the trial—approached the complainant and asked him, while he was in his car, why he had 15 been blowing his horn and gesticulating in an insulting manner. He realized, then, that the complainant was intoxicated and was speaking in a manner which prevented the appellant from understanding what he was saying and, after having failed to establish communication with him, the appellant told him "I spit 20 at your age because you drive in the streets drunk and endanger your own life as well as that of others; the appellant insisted, however, in his testimony, that he did not actually spit at the complainant; he. then, returned to his own car and, after crossing thejunction, he noticed that the complainant had got out of 25 his car and was writing something in a notebook. The appellant drove up to the car of the complainant and asked him what else he wanted and, then, drove away. He denied that he had either assaulted the complainant or insulted him or spat at him. The trial Judge did not believe the evidence of the appellant 30 who, together with the complainant, were the only two witnesses who testified at the trial as to what had happened on the occasion in question; he rejected, in particular, the allegation of the appellant that the complainant, at the material time, was under the influence of drink. 35 We have considered all that has been submitted during the hearing of this appeal by counsel for theappellant in an effort to persuade us that it was not safe for the trial Judge to rely on the evidence of the complainant; counsel stressed that the complain184 2 C.L.R. Fasoullotfa v. Police Triantafyllides P. ant had openly admitted, in his testimony, that soon before the incident in question he had had two or three drinks of whisky. The trial Judge, in reaching hisconclusion as regards the credibility of the complainant and the appellant, relied on their 5 demeanour as witnesses before him, on the nature of the testimony they had given, and pointed out, in particular, that he regarded the allegation that the complainant was under the influence of drink as completely false in view of the coherent and careful manner in which the complainant had behaved at the 10 time of his encounter with the appellant, and of the many details, regarding what had happened, that he recollected clearly and related with precision at the trial. Furthermore, the trial Judge highlighted the inconsistencies between the statement of the appellant in answer to the formal charge and his testimony 15 at the trial. It is well settled that this Court does not interfere on appeal withfindingsofa trial Court based on thecredibility of witnesses when it is satisfied that such findings were reasonably open to thetrial Court; and it isup to theparty challenging such findings 20 to satisfy this Court, on appeal, that they are erroneous (see, -interalia, Charalambides v. HjiSoteriou &Son andothers,
(1975)1 C.L.R. 269, 277, Achillides v. Michaelides,
(1977)* 3 J.S.C. 299, 307-309, and Petrou v. Petrou,
(1978)1 C.L.R. 257, 266, 267). 25 In the present case not only the appellant has failed to satisfy us that the trial judge was wrong in believing the complainant and disbelieving the appellant, but we are, also, prepared to go to the extent of sayingthat weare satisfied that the version of the complainant was rightly accepted as the correct one and the 30 version of the appellant was properly rejected as being false. Consequently, the appeal of the appellant against his conviction fails and it is unanimously dismissed accordingly. As regards the appeal against sentence, we have not been able to reach a unanimous decision: 35 I agree with the trial Judge that, though in most cases of common assault no imprisonment is imposed (see Thomas on * To be reported in
(1977)1 C.L.R. 185 Triantafyllides P. Fasouliotis v.Police
(1979)Principles of Sentencing, 1970, p. 105), the present case is such an instance of aggressive and insulting behaviour that a custodial sentence was clearly required. In R. v. Davies, [1976] Crim. L.R. 697, a youth, seventeen years old, pleaded guilty to using,after drinking, insulting words 5 to two women in the street and he was sentenced to six months' detention; he had three previous convictions for dishonesty and there had been made in respect of him a probation and supervision order; it was held, on appeal, that there was no excuse for his conduct and a custodial sentence was clearly correct, but, as 10 there was no accompanying violence, a sentence of three months would provide a sufficient deterrent. In R. v. Moore, [1976] Crim. L.R. 145, a young man, twenty-three years old, was convicted of assault occasioning actual bodily harm in the following circumstances: He was driving 15 a car after dark and another motorist noticed that he was showing no lights and flashed his own lights in order to draw his attention to it. A little later the other motorist felt a bump as a result of a collision of the car of the appellant with his car and stopped to examine the condition of his own car; he was then 20 attacked by the appellant and his passenger who kicked him in the face breaking a tooth of his and causing a cut on his lip. The appellant was sentenced to four months* imprisonment; though he had no previous convictions, it was held, on appeal, that an immediate prison sentence was unavoidable despite his 25 good record and the possible effects of such sentence on his newly married wife and his employment, and that the length of the sentence of imprisonment might well have been six months; it was stressed, in dismissing his appeal, that where Courts of first instance imposed custodial sentences for violence of this 30 kind that is inexcusable, unprovoked, sheer vicious aggression, they would be upheld. In R. v. Callmeyer, [1976] Crim. L.R. 267, a sentence of eighteen months' imprisonment, which was passed upon a man, twenty years old, after he had pleaded guilty to assault occasion- 35 ing actual bodily harm, was upheld. The circumstances of that case were as follows: The victim was using a public telephone kiosk and though there was an adjacent kiosk which was not being used at the time, the appellant opened the door of the kiosk where the victim was and asked to use the telephone. An 40 186 2 CL.R. Fasouliotis v. Police Triantafyllides P. argument developed and theappellant hit thevictim onthehead with the receiver and pulled him out and punched him and kicked him. The appellant had a bad criminal record, but it wasstated,onhisbehalf,thathewasnotgiventoviolenceaspart 5 of his general character. It was held, on appeal, that, having regard totheappellant's record and behaviour, thelength ofthe sentence of imprisonment was right and it was stressed that it mattered not whether people who behaved in this way had previousconvictions for violence;they should getimmediatecusto10 dial sentencesand thiswasthe onlyway to stop violence on the streets. Therefore, a custodial sentence was duly justified in the presentcase;Iagree,however,withcounselfor theappellant thata shorter sentence of imprisonment would serve sufficiently its 15 main purpose of deterring the appellant, and others like him, from resorting toconduct suchas theoneinrespect ofwhichhe has been sent to prison. Theappellant, whoisthirty-five years old, ismarried and has three children; he runs a furniture factory which has to meet 20 large orders for furniture; both in Cyprus and abroad, and, his absencefrom themanagement of hisfactory will influence quite adversely thefunctioning of hisfurniture businessasa whole,as hehappens to be,also,thedesigner ofthefurniture madeat his saidfactory. Theappellant isafirstoffender and heis,certain25 ly, not a person who appears to be in need of reform through imprisonment. The trialJudge,ingivinghisreasonsfor sendingthe appellant to prison for twomonths,stressed thedifference inagesbetween theappellant and thecomplainant, but he,quiterightly, pointed 30 out that thefact that thecomplainant isa retiredjudicial officer (Mr. G. Georghiou, anexPresident ofa District Court)wasnot a factor which had played any part in theassessment ofthesentence to be passed upon the appellant because all citizens are equal before the law and equally entitled to its protection. 35 On the other hand, it appears, from what the trial Judge has stated, that hetook a seriousviewof thefact that the appellant, in defending himself, put forward the allegation, which was not accepted bythetrialJudge,that thecomplainant, atthematerial time,wasintoxicated;and itdoesseemtomethat this,apparent187 Triantafyllides P. Fasouliotis τ. Police
(1979)ly, influenced him in being more severe towards the appellant than he might, otherwise, have been. Having weighed all relevant considerations, I have reached the conclusion that this is a case inwhich theproper sentence should not be more than one month'simprisonment and I have decided, 5 therefore, that this appeal should be allowed accordingly, so that the sentence passed upon the appellant shall be reduced to im prisonment of one month as from the date when he was sent to prison. Before concluding, I would like to stress that the reduction of 10 the sentence in the present case in no way implies that Ientertain any doubt at all concerning the correctness of the version of the complainant, or the propriety of his conduct on the particular occasion; or that sentences of imprisonment of much longer durat on than for one or two months should not be imposed in 15 future in similar cases if they are warranted by the particular circumstances of any such case; simply, I am of the opinion that in the present case, in view of all the foregoing considerations, including the personal circumstances of the appellant and the fact that a sentence of imprisonment for a period of one month 20 is sufficient to deter the appellant and others from resorting to conduct such as the onewhich has led to thepresent predicament of the appellant, a sentence of two months' imprisonment was not warranted and, therefore, it must be treated as being so excessive as to justify interference with it, on appeal. 25 L. Loizou J. I am in complete agreement that the appeal against conviction should be dismissed. The evidence for the prosecution, which incidentally in certain respects was corrobo rated by that of the appellant himself, was overwhelming and once the trial Court believed the evidence, and rightly so in my 30 opinion, the verdict was inevitable. I find nomerit in any of the grounds put forward and argued by counsel for the appellant on this issue and in my view thejudgment is not open to any cri ticism. With regard to the appeal against sentence, however, I find 35 myself in the unhappy position of having to disagree with my brother Judges. Although the assault was not serious, in the sense that the 188 2 C.L.R. Fasouliotis v. Police L. Loizou J . violence used was not extensive, the circumstances were such as to warrant, in my view, the sentence of imprisonment imposed by the trial Judge. The appellant, a man of 35, assaulted a man of much weaker disposition, 67 years old. The assault was 5 unprovoked and absolutely unwarranted and unjustified; it was sheer mindless violence. Any accused person is of course free to plead not guilty to the charge against him and to put forward any defence that is open to him without, by reason of such course, aggravating the case beyond the limit warranted by the 10 facts, but with this qualification: that hecannot at the same time claim mitigation of sentence below that limit on the ground that he has shown remorse. But in actual fact at no time, either when first approached and charged by the police or during the trial did the appellant in this case say one word to show that he 15 appreciated thewrong that he had commited or that he repented for the humiliating and degrading treatment to which he subjected the complainant. In my view, the prison sentence imposed on him was, having regard to the circumstances, appropriate, inspite of his clean 20 record and any possible effect on his business, and cannot be said to be either wrong in principle or manifestly excessive. I see no reason at all to interfere with the sentence imposed by the trial Court within whose province the nature and extent of punishment primarily lie. Peaceful citizens and the society ge25 nerally have to be protected from unduly irritable and excitable persons, as the appellant apparently is judging from his behaviour, who as a result of unjustified and unprovoked outburst of temper resort to this sort of conduct in the streets anduse senseless violence and insulting behaviour. 30 I would dismiss the appeal against sentence as well. MALACHTOS J. I agree that the appeal against conviction should be dismissed, but the appeal against sentence should be allowed and the term of imprisonment of the appellant be reduced to onemonth for the reasons given by the President of the 35 Court. TRIANTAFYLLIDESP. In the result the appeal against conviction 189 Triantafyllides P. Fasouliotis τ. Police
(1979)is dismissed,but the appeal against sentence is allowed byma jority, as stated in thejudgments whichhavejust beendelivered. Appeal against conviction dismis sed. Appeal against sentence al lowed. 190 5