2 CX.R. 1979 December 12 [A. Loizou, DEMETRIADES, SAVVIDES, JJ.] MOHAMED EL-SAYED OSMAN, Appellant, v. THE POLICE, Respondents. (Criminal Appeal No. 4081). 5 10 Criminal Law—Sentence—Burglary and theft—Concurrent sentences of twoyears' imprisonment—And onemonth's concurrentimprisonmentfor malicious injury toproperty—Not manifestly excessive— Primary responsibility of evaluating thefacts and curcumstances relevant both to the offences and the offender and impose the appropriate sentence lies with the trial Judge. Criminal Procedure—Imprisonment—Commencement of sentence of imprisonment—Not taking into consideration period that imprisoned person has been in custody prior to his trial—Clear indication and some reasonsfor doing so should appear in the record—Section 117 of the Criminal Procedure Law, Cap. 155 (as amended by Law 2/75). 20 The appellant, an Egyptian sailor 26 years of age who was temporarily living in Limassol, pleaded guilty to three counts for the offences of burglary and theft and was sentenced to two years' imprisonment and to onecount for the offence of malicious injury to property and was sentenced to one month's imprisonment, all sentences to run concurrently. These sentences were recorded to commence as "from to-day", that is the day they were pronounced. 25 Section 117 of the Criminal Procedure Law, Cap. 155 (as amended by Law 2/75) provides that a sentence of imprisonment commences from the date on which it is pronounced, but its length is, unless the Court otherwise directs, reduced to the extent of the period that the imprisoned person has been in 15 235 Osman v. Police
(1979)custody. When the word "to-day" is inserted in the relevant warrant of commitment to prison upon conviction the Prison Authorities take it as a direction by the Court that the period of imprisonment should not be reduced by the period during which the convicted person had been in custody under the provisions of the Criminal Procedure Law. 5 Prior to his trial on the 21st September, 1979, the appellant had been in Police custody since the 2nd July, 1979. Upon appeal against sentence: Held,
(1)that the trial Judge correctly appreciated the situation 10 when he felt that he would bejustified in imposing the sentences against which this appeal islodged; and that there is no reason to interfere with the sentence imposed by the trial Judge who had the primary responsibility of evaluating the facts and circumstances relevant both to the offences and the offender and impose 15 the appropriate sentence.
(2)That it cannot be ascertained from the record if the trial Judge intended that the sentence should not be reduced by the period of almost 2 1/2 months the appellant had been in police custody prior to histrial;that, moreover, asnothing in therecord 20 shows that the trial Judge was informed that the appellant was in such custody and that he did exercise his discretion in the circumstances against the application by the Prison Authorities of section 117 of Cap. 155 (as amended by Law 2/75) the imprisonment of the appellant should be calculated in such a 25 way as to include therein any period he served in Police custody and as if no direction to the contrary had been made by the trial Judge; and that, accordingly, the appeal must be allowed to that extent. Appeal partly allowed. Per curiam: We take this opportunity to draw the attention of Courts exercising criminal jurisdiction to this matter, so that if they do really wish the period that a person had been in custody prior to his trial not to be taken 35 into consideration in computing the period of sentence, a clear indication and some reasons for doing so should appear in their records. 236 30 2 C.L.R. Osman τ. Police Appeal against sentence. Appeal against sentence by Mohamed El-Sayed Osman who was convicted on the 21st September, 1979 at the District Court of Limassol (Criminal Case No. 9510/79)on threecounts of the 5 offence of burglary and theft, contrary to sections 292(a), 255 and262 of theCriminal Code,Cap. 154 and ononecountof the offence of malicious injury to property, contrary to section 324
(1)of Cap. 154(as amended by Law 4/74) andwas sentenced by Eleftheriou, D.J. to two years' imprisonment on each of the 10 burglary and theft countsand to one month's imprisonment on the malicious injury count, the sentences to run concurrently. M. lacovou, for the appellant. R. Gavrielides, Counsel of the Republic,for therespondents. A. Loizou J. gave the following judgment of the Court. 15 This is an appeal against sentence on the ground that same is manifestly excessive. Itwasfiledby theappellant personally. But when it came up for hearing before us, at his request, an advocate was assigned and afforded facilities to appear on his behalf as in view of the gravity and the other circumstances of 20 thecase, including thefact that heis a foreigner this course was considered to be desirable in the interests of justice. The appellant was found by the District Court of Limassol guilty on his own plea on four counts, three of them being offences of burglary and theft, contrary to sections 292(a), 25 255 and 262 of the Criminal Code,Cap. 154, for which he was sentenced to two years imprisonment on each one of them,and the fourth count being for the offence of malicious injury to property, contrary to sections 324
(1)of the Criminal Code, Cap. 154, as amended by the Increase of Fines (Certain Statutory 30 Provisions) Law, 1974 (Law No. 4 of 1974), and sentenced to one month's imprisonment. All terms of imprisonment were ordered, however, to run concurrently. The particulars of the said offences, as they appear from the charge-sheet, are that on the 1st April, 1979, at Limassol, at 35 night time, the appellant did break and enter into rooms Nos. 4, 6and 8,of the "REX" Pension,used as humandwellings,and stole therefrom: 40 (a) Thesumof£65.100milsincash,fourcoinsofPhilippines anda chainwith twokeys,theproperty of theoccupant of thefirst room. 237 A. Loizou J. Osman τ. Police
(1979)(
- b)£100.-in cash, the property of the occupant of the • second room. (
- c)£2.-in cash, 12 U.S.A. dollars, five necklaces, valued at £15.-and a wallet valued at £1.-, a note-book containing one U.S.A. dollar and a broach, valued at £1.-, the properties of the two occupants of the third room. 5 (
- d)He destroyed the glass-pane of a door of the Pension valued at £5.The facts of the case as they appear from the record are these: 10 On the night of the 1st April, 1979, at about 3.30 a.m. the son of the proprietor of Rivoli Cabaret and a friend of his, accompanied one of the complainants in this case to the said Pension which is situated at Eleni Paleologinas Street in Limassol. When they arrived there, two of them went into the 15 Pension and when the said occupant tried to get into his room, he noticed that a stranger was therein and called out for help. They gave chase and caught the appellant on the roof of the house next door. He was holding in his hand various articles which were seized from him. He was brought back to the 20 verandah of the Pension and detained there until the arrival of the Police who arrested the accused and took up theinvestiga tion of the case. The articles which the appellant was holding, together with those which were found on him and on the verandah of the house, were seized by the Police and eventually 25 identified by the occupants of the rooms as above set out. Whilst there the appellant broke the glass-pane of the door nearer to him. He was kept in Police custody from the time of his arrest to the date of his conviction. The appellant, an Egyptian, is 26 years of age, a sailor and was temporarily living in Limassol at the time. 30 Having given our best consideration to what has been stated on behalf of the appellant and bearing in mind the totality of the circumstances of this case, as well as the circumstances personal to the appellant, we have come to the conclusion that 35 the trial Judge correctly appreciated the situation when he felt that he would be justified in imposing the sentences against which this appeal is lodged. We see no reason whatsoever to interfere with the sentence imposed by the learned trial Judge 238 2 C.L.R. Osman τ. Police A. Loizoa J. who had the primary, responsibility of evaluating the facts and circumstances relevant both to the.offences "and to the offender and impose the appropriate sentence. There is, however,".one matter that merits our consideration. 5 Section 117 of the Criminal Procedure Law was amended by the Criminal Procedure (Amendment) Law 1975 (Law No. 2 of 1975) so that a sentence of imprisonment commences from the date on which it is pronounced, but its length is however, unless the Court otherwise directs, reduced to the extent of the 10 period thattheperson imprisoned hasbeen incustody underthe provisions of this Law. The sentences of imprisonment imposed on the appellant are recorded to have been as from "to-day", that is, the day they werepronounced. The warrant of commitmentto prison upon 15 conviction—Criminal Form 50—was duly filled and signed, and in the space recording the date as from which the Officer in-charge of the Prison was to receive the convict, the word "io-day" was inserted. Upon inquiry with the Prison Autho rities through the kind services of learned counsel for the 20 Republic appearing before us, we have been informed that when the word "to-day" is inserted as above, the Prison Authorities take it as a direction by the Court that the period of imprisonment should not be reduced by the period during which the convicted person had been in custody under the 25 provisions of the Criminal Procedure Law. We cannot ascertain from the record if the trial Judge intended that the sentence imposed by him on the appellant should not be reduced by the period he had been in Police custody prior to his trial, namely, from the 2nd July, 1979, 30 to the date of conviction. As moreover nothing in the record shows that the learned trial Judge was informed that theappel lant was in such custody for almost 2 1/2 months and that he did exercise his discretion in the circumstances against the application by the Prison Authorities of section 117 as amended 35 by Law No. 2 of 1975, we feel that the imprisonment of this appellant should becalculated insucha way as toincludetherein any period he served in Police custody and as if no direction to the contrary had been made by the trial Judge. "The appeal, therefore, is allowed to that extent. 239!. A. Loizou J. Osman τ. Police
(1979)We take this opportunity to draw the attention of Courts exercising criminaljurisdiction to this matter,so that if theydo really wish theperiod that a person hadbeen in custody prior to histrial notto be taken into consideration in computingthe period of sentence, a clear indication and some reasons for 5 doing so should appear in their records. Appeal partly allowed. 240