clr/1982/1982_2_183.pdf

(1982)that the trial Couit misdirected itself either on the facts or the law or that the Court in considering the sentence allowed itself to be influenced by matter which should not affect the sentence or if it is made to appear that the sentence of the Court is manifestly excessive in thecircumstances of the 5 particular case; that onecanhardl> find anymitigating circumstances regarding the crimes committed by the appellant and this Court in imposing sentence must take into consideration the seriousness of the offences in each case as reflected bythe punishment provided by the legislature in the relative sections 10 of the Criminal Code; that, furthermoie, due regard must be given, to theprotection which thegeneral public areentitled to under thelawagainst thedangers coming from personswho do not care at all; that for these reasons, and fully aware that at theendtheappellant admitted tothepoliceandhadreturned 15 part ofthe money, this Couit has reached theview,not without any difficulty, that in the particular circumstances of this case not only the sentence is not manifestly excessive, but that, on the contrary, it is a lenient oneif one takes into consideration that the appellant admitted that he had committed in all 14 20 offences; accordingly the appeal must fail. Appeal dismissed. Appeal against sentence. Appeal against sentence byAlkis lacovou Mazarakis who was convicted on the9th May, 1979at the Assize Court of Nicosia 25 (Criminal Case No. 10976/79) on one count of the offence of breaking and entering a dwelling house with intent to steal, contrary to sections 255,291and 292(

1. a)of the Criminal Code, Cap. 154and was sentenced by Papadopoulos, S.D.J., Nikitas and Laoutas, D.JJ.tofive years' imprisonment. 30 T. Constantinides with C. Loizou, for the appellant. A.M. Angelides, Senior Coumel of the Republic, for the respondents. HADJIANASTASSIOUJ. gave thefollowing judgment ofthe Court. This isan appeal against thesentence imposed on the appellant 35 who was convicted on the 7th May, 1979,by the Assize Court of Nicosia (Cr. Case No. 10976/79) on one count of breaking and entering the dwelling house of Stavros Constantinou with intent to steal and stole therefrom the sum of £140.- in cash, 184 2 C.L.R. Mazarakis v. Republic Hadjianastassiou J· contrary to sections 255, 292 and 292(
2. a)of the Criminal Code Cap. 154 respectively, and was sentenced by Papadopoulos, S.D.J. Nikitas and Laoutas D.JJ. to five years'imprisonment. The appellant in the present case has pleaded guilty to the 5 charge of burglary and stealing by breaking and entering a dwelling house with the intent to steal and stole the sum of £140.- in cash and was sentenced to five years' imprisonment. He now appeals against sentence on the ground that it is manifestly excessive. Indeed, the offence of breaking and entering 10 during night carries in accordance with section 292 a maximum penalty of ten years' imprisonment. The accused is 20 years of age married with one child and he has been enlisted in the army, and as he was unable to look after his family because he was only earning a small amount of money, his family was 15 looked after by his parents. On 12th March, 1979, the appellant, who was absent from his camp, was declared as being deserter soldier by the appropriate military authority. The complainant Stavros Constantinou of Nicosia is an officer in the police force with the rank of a Sub-inspector and is attached 20 to K.Y.P., is residing with his family in his own flat which is known as the Karantokis flats. On the 29th March, 1979, after finishing his work he went to his flat and at 10.00 p.m. he went to bed leaving in the pocket of his coat the sum of £140.and also his police identity card. On the following morning he 25 woke up at 7.00 a.m. and having dressed up he visited Makedonitissa in order to pay the person who was building for him a house. Whilst there he realized that the said sum of money. including his police identity card, was missing. He referred the matter to a sergeant who happened to be in the block of 30 flats investigating the complaints of a number of persons residing there. On 30th March, 1979, the sergeant in question met the accused at 13.15 hours in a cafe, and because he,had curtain suspicions as to whether he was one of the culprits, he asked him to accompany him to C.I.D. of Nicosia for interro35 gation. The accused during the interrogation with regard to the breaking and entering of certain flats in the building of Karantokis, told the sergeant the following: "There is no reason to deceive you I have committed all the breakings and cnterings and let's go to the hotel to give you 40 the money". On the same day at 13.45 hours the accused took sergeant 329 to his room in the hotel "REGINA" where 185 Hadjiaoastassiou J. Mazarakis v. Republic

(1982)hewas staying and from the cupboard he took the sum of £140.which was in notes of £10.- and handed the money to the sergeant who having warned him as to the law, the accused replied: "These money are from those which I took last night". In the light of this statement the sergeant having arrested him 5 took him to C.I.D. of Nicosia and he handed him to G. Philippou, a Sub-inspector, together with the personal things and the seized amount of money. Later on between the 14.00 and 15.00hours of 30th March, 1979, the accused made a voluntary statement to Sub-inspector Philippou and admitted inter alia 10 that he had committed the breaking and entering in the house of Sub-inspector Stavros Constantinou. Furthermore, in his statement the accused admitted that during midnight of the 29th March, 1979, he went to the block of flats and from the dormer window he was forcing and opening the windows of 15 the kitchens and was entering into various flats and was stealing various amounts of money and particularly the sum of £140.from the pocket of the complainant. At 15.20 hours of the same day the accused was arrested by Sub-inspector Philippou, who had drawn his attention to the law and had also explained 20 to him the reasons of his arrest, but the accused did not give any reply. The Assize Court of Nicosia in imposing a sentence of five years" imprisonment took another 13 offences of the same nature into consideration which the accused admitted. On appeal counsel appearing for the accused submitted that the sentence was manifestly excessive once he had admitted frankly all the offences against him and invited the Court, in view of his age, to show leniency to him. There is no doubt that the behaviour of the appellant in this case was appalling 30 and the question is whether this Court in view of the age of the appellant should interfere in the present case. Time and again this Court had said that the Court of Appeal will only interfere with a sentence so imposed if it is madetoappear from the record that the trial Court misdirected itself either on the facts 35 or the law; or that the Court in considering the sentence allowed itself to be influenced by matter which should not affect the sentence; or if it is made to appear that the sentence of the Court is manifestly excessive in the circumstances of the 186 25 2 C.L.R. 5 10 15 20 25 Mazarakis v. Republic Hadjianaslassiou J. particular case. There is no doubt that the Assize Court had in mind the young age of the appellant and took also into consideration the report made by the Welfare Office. As it has been said earlier the appellant had committed a great number of offences and wehave no doubt that all these offences make the case a very serious case for the appellant. Indeed. one can hardly find any mitigating circumstances regarding the crimes committed by him and this Court in imposing sentence must take into consideration the seriousness of the offences in each case as reflected by the punishment provided by the legislature in the relative sections of the Criminal Code. Furthermore, we feel we must give due regard to the protection which the general public are entitled to under the law against the dangers coming from persons who do not care at all. For these reasons, and fully aware that at the end the appellant admitted to the police and had returned part of the money, we have reached the view, not without any difficulty, that in the particular circumstances of this case not only the sentence is not manifestly excessive, but that, on the contrary, it is a lenient one if one takes into consideration that the appellant admitted that he had committed in all 14 offences. For these reasons the appeal is dismissed once, we repeat. the punishement imposed was not under the circumstances manifestly excessive. Appeal dismissed 187