1979 November 29 [TRIANTAFYLUDES, P., A. LQIZQU, MALACHTOS, JJ.] SPYROS AVGHOUSTI, Appellant, v. THE REPUBLIC, Respondent. {Criminal AppealNo. 4079). 5 10 Military offences—Sentence—Failing toenlist intheNationalGuard— Mitigating factors—Appellant a person of very good character and labouring under the bona fide misconception that he was entitledtobeexemptedfrom military service—Solemn assurance by him that henow appreciatesfully thathe isboundtoenlist in theNationalGuardand that he intends to do so at the first available opportunity—Sentence of four months' imprisonment, though not wrong inprinciple, excessive —Reduced. Sentence—Young offender—Aged twenty—Needfor asocial investigation reportwhenit is contemplated to send to prison ayoung offender. The appellant pleaded guilty to the offence of failing to enlist in the National Guard and was sentenced by a military Court to four months* imprisonment. 15 120 25 It appeared that theappellant,whowasa person ofve'rygood character, waslabouring under the bonafidemisconception that he was entitled to be exempted from military service because his father was assassinated as a result of a personal feud in July 1974 and, thus, the appellant, who was a mason, became the bread-winner for his family, which consisted of hismother and a brother and a sister who are younger than him and are still at school. During the hearing of this appeal the appellant solemnly assured the Court of Appeal that he appreciated fully that he wasbound to enlist in the National Guard and that heintended to do so at the first available opportunity. 263 Avghousti v. Republic
(1979)Uponappealagainst sentence: Held,that though the sentence of imprisonment which was passed upon the appellant is not wrong in principle, because the offence which he has committed is, indeed, of a serious nature, the duration of hisincarceration ought to be such as to 5 fithis personal circumstances and the special facts of this case; that in the light of all pertinent considerations asentence of four months' imprisonment in the present case is so excessive that it should be reduced in a manner enabling the appellant, who has beeninprison,already,for morethan twomonths,tobereleased 10 today. Appeal allowed. Observations: Unfortunately the social investigation reports, which were prepared at the request of the Court of Appeal, 15 were not before the military Court, even though on more than one occasion the Court of Appeal has stressed the need of asking for a social investigation report when it is contemplated to send to prison a young offender, like this appellant, who is only twenty 20 years old. Appeal against sentence. Appeal against sentence by Spyros Avgousti who was convicted on the 21st September, 1979 by a military Court, sitting at Nicosia, (Case No. 210/79) on one count of the offence 25 of failing to enlist in the National Guard, contrary to section 22(l)(
- a)of the National Guard Law, 1964 (Law 20/64) (as amended by Law 22/78) and was sentenced to four months' imprisonment. Appellant appeared in person. G. Santis, for the respondent. TRIANTAFYLUDESP. gave the followingjudgment of the Court. The appellant was sentenced by a military Court to four months' imprisonment, as from September 21, 1979,after having pleaded guilty to the offence of failing to enlist in the National Guard, 35 contrary to section 22(l)(
- a)of the National Guard Law, 1964 (Law 20/64), as amended, in this connection, by the National Guard (Amendment) Law, 1978 (Law 22/78). He has appealed against the said sentence on the ground that 264 30 2 C.L.R. Avghousti v. Republic Triantafyllides P. itisexcessive. Ashehasmadethisappealwhilebeinginprison, without the assistance of counsel, and he is not represented by counsel in the present proceedings, we have adjourned the hearing of thisappeal till today so as to enablelearned counsel 5 for the respondent to arrange for the preparation of two social investigation reports regarding the appellant, the one from the Department of Social Welfare -and the other from the Central Prisons. These reports were not, unfortunately, before the military Court, even thoughwehaveon morethan oneoccasion 10 stressed the need of asking for a social investigation report when it iscontemplated to send to prison a youngoffender, like this appellant, who is only twenty years old. Wehave perused the said reports and have weighed carefully all that has been,said by the appellant and by counsel for the 15 respondent who has, indeed, taken a most commendable very fair stand. It appears that the appellant, who is a person of very good character, was labouring under the bona fide misconception that hewasentitledtobeexempted from militaryservicebecause 20 his father wasassassinated as a result ofa personal feud inJuly 1974and,thus,theappellant,whoisamason,becamethebreadwinnerfor hisfamily, whichconsistsofhismother and abrother and a sisterwho areyounger than him and are still at school. During the hearing of this appeal the appellant has solemnly 25 assured us that he now appreciates fully that he is bound to enlist in the National Guard and that,he intends to do so at the first available opportunity, that is in January 1980. Weareoftheopinionthat thesentenceofimprisonmentwhich waspassedupon theappellant isnotwronginprinciple,because 30 the offence which he has committed is, indeed, of a serious nature,but, on theother hand, wethink that theduration ofhis incarceration ought to be such as to fit his personal circumstances and the special facts of this case. In the light of all pertinent considerations we have reached the conclusion that a 35 sentence of four months' imprisonment in the present case is soexcessive that it should be reduced in a manner enabling the appellant, who has been in prison, already, for more than two months, to be released today. This appeal is, therefore, allowed accordingly. 40 Appeal allowed. 265