clr/1982/1982_2_193.pdf

(1982)sentence: Held, that tht Court of Appeal will only interfere with a sentence so imposed bythetrial Court if itis made to appeal from the record that thetrial Court misdirected itself either on the facts orthelawor, that the Couit,inconsidering sentence c allowed itself to be influenced by mattei which should not affect thesentence, orifitis ma.!; toappear that thesentence imposed is manifestly excessive in the circumstances ofthe particulai ca?e; that this Couit is inagreement with theAssize Court that the pattern of shop breaking in these two cases ΙΛ makes it necessary for it,also, todemonstiate by thesentence inflicted onthetwo appellants that professional shop bieaking ol that magnitude will notbe tolerated any longei; that in the light of these facts andcircumstances, andfully aware that the sentence imposed ontheappellants maybe onthehigh .e side, nevertheless, this Couit does notthink that there is room for interfering with thedecision of theAssize Court, and it would dismiss theappeal once it thinks that thesentence is not manifestly excessive; accoidingly the appeals must fail. Appeals dismissed. ™ Cases referred t o : Socratous v. TheRepublic

(1970)2 C.L.R. 181at p. 183; Μίηα andAnother v. The Police

(1971)2C.L.R. 167atpp. 170171; Irons v. TheRepublic

(1966)2 C.L.R. 116at p.

1. .. Appeals against sentence. Appeals against sentence by Marios Terezides and Another who were convicted o nthe 30th May, 1979attheAssize Court of Larnaca (Criminal Case N o . 2620/79) onthirty counts ofthe offence of shop-breaking andtheft contrary to sections 291, - f t 294(a). 255 and20 of the Criminal Code, Cap. 154and were sentenced byPikis, P.D.C., Pitsillidcs, S.D.J, and Constantinides, D.J. t ofour years' imprisonment oneach of the thirty counts, the sentences t o run concurrently. A. Indianos, for the appellants. A.M. Angelides, Senior Counsel of the Republic, for the respondent. HADJIANASTASSIOU J. gave the following judgment of the Court. This is anappeal by both accused in Criminal Appeals 194 .,,- 2 C.L.R. Terezides and Another v. Republic Hadjianastassiou J. Nos. 4044 and 4045, who were convicted by the Assize Court of Larnaca for 30 shop breaking counts involving the theft of money and other articles of a total value of£4,250, committed at dates between May-February,
2. Both accused were 5 sentenced to 4years* imprisonment on each of the 30 counts and the sentences to run concurrently. The appeal was mad^ by both appellants from the Central Prison on the ground that the sentences were manifestly excessive. On the night of 5th-6th February, 1979, there was an orgy 10 of shop breaking by the two accused, and the police were mobilized in search of the culprits. Later on that day, accused 1and 2 were arrested by the police and shoitly afterwards they made confessions, realizing, to repeat their own words, that the game was up for them. Thereafter they collaborated 15 with the police and handed over part of the stolen goods and money aswellastheshop bieaking implements. The unrcstoied money amounts to £363, whereas the unreturned goods arc worth £500, i.e. a quantity of stolen cigarettes. There is no doubt that notwithstanding their youth, it is 20 manifest tliat both accused have systematically engaged in stealing property from almost every part of the island. It appears further that the iceord of both accused and their past personal history, as revealed in the social investigation reports which the Assize Court had before them is not encouraging. 25 Speaking of accused 1, neithci probation nor the Lambousa Reform School or a recent term of imprisonment helped mend his ways and face up to his responsibilities. He is married and the father of a child, but he shows little if any interest in his family. The case of accused 2 is not much better, and like 30 accused 1he was placed on probation foi a period of time and also he has recently spent a short interval of time in prison, Both accused I and 2 are aged
3. The Assize Court, having taken into consideration the totality of the facts before them including whatever was advanced by 35 learned counsel of the accused in mitigation on their behalf, had this to say:"In passing sentence we have in mind that the offences committed by the accused belong broadly to a categcry of offences where a high element of individualization is possi195 Hadjianastassiou J. Terezides and Another v. Republic

(1982)ble in sentencing. (See Philippou and Another v. The Republic

(1976)7 J.S.C. 1157.) However the pattern of shop breaking in this case, its frequency and the total lack of scruples on the part of accused 1 and 2 make it necessary for this Court to demonstrate by the sentence about to be 5 passed that professional shopbreaking will not be tolerated nor criminal adventurism at its worst. And in the case of accused I and 2 there is little alternative but to impose a medium to a long term of imprisonment having regard to their failure to respond to other modes of sentencing in 10 the past and the danger they pose to society. On the other hand the stage has not come for the maximum sentence to be imposed as we feel mostly having regard to their age that all hope of reforming them has not been lost; and indeed we hope that during their stay in prison they will 15 make a conscious effort to reflect on their ways and try to correct them and come out of prison reformed men. (See Kakouris v. The Police

(1972)2 C.L.R. 427). Having taken into consideration the charges in the cases above mentioned we sentence each one, accused 1 and 2, 20 to a sentence of 4years' imprisonment on each of the thirty counts. The sentences will run concurrently." On appeal, Mr. Indianos, counsel for both appellants, argued with force that the sentence was manifestly excessive and that the Assize Court discriminated in the two cases because appel- 25 lant 2 was not given a chance and deserved more sympathy to put forward his case. Counsel relied on Stylianos Socratous v. TheRepublic

(1970)2 C.L.R. 181at p. 183and also on Minas Mina and Another v. The Police

(1971)2 C.L.R. 167 at pp. 170-171. Time and again it was said that the Court of Appeal will only interfere with a sentence so imposed by the trial Court if it is made to appear from the record that the trial Court misdirected itself either on the facts or the law; or, that the Court, in considering sentence allowed itself to be influenced bymatterwhich 35 should not affect the sentence; or if it is made to appear that the sentence imposed is manifestly excessive in the circumstances of the particular case. (See Michael Afxenti alias •'froas" v. The Republic

(1966)2 C.L.R. 116 at p. 118.) 196 30 2 C.L.R. Terezides and Another v. Republic Hadjianastassiou J. In Minas Mina and Another v. The Police

(1971)2 C.L.R. 167, the Court of Appeal, having indicated that this was jndced a very serious case, had this to say at pp. 170-171:5 10 15 20 25 30 35 40 "Though, as a Court of Appeal, we would not be prepared to substitute our own assessment as to what is the right punishment in a criminal case in theplace of the assessment of a trial Judge, because, as it has often been stressed, it is for the trial Courts to assess sentence in the light of the circumstances of each particular case, and we can only interfere with the sentence imposed by a trial Court if there exist any of the well-established reasons which have been laid down as entitling us to do so, in the present case, having duly considered what has been ably submitted by learned counsel for the Appellants, we have come to the conclusion that the trial Court appears to have been so impressed by the severity of the offences concerned, and by the need to protect society against high-handed conduct of this nature, that no sufficient weight was given to the personal circumstances of the Appellants and the conditions under which such offences were committed, including, in particular, the fact that the Appellants were at the time labouring under a suspicion which filled them with great indignation. It seems to us, also, that the learned trial Judge, having taken 'into consideration as guidance' the cases of Paraschos v. The Police

(1963)1 C.L.R. 83, Agathocleous v. ThePolice

(1965)2 C.L.R. 119, and Psaras v. ThePolice

(1968)2 C.L.R. 8, was unduly influenced by them though the facts in those cases were entirely different from those in the present case. Wc are of the opinion that the objects of protecting society against conduct of this nature, through deterring others from resorting to it in similar circumstances, as well as of making the Appellants realize once and for all that they cannot take the law into their own hands, whatever their grievances may be, and of punishing them for what they did, could be amply achieved by sentences of imprisonment less severe than those imposed on th; Appellants, which, in our view, are manifestly excessive and wrong in principle " 197 Hadjianastassiou J. Terczides and Another v. Republic

(1982)In StylianosSocratous v. TheRepublic

(1970)2 C.L.R. 181, Vassiliades, P., having stated at p. 183that sentencing in these circumstances was not an easy matter, added the following at P: 183:"Without going into detail, we propose following the line 5 settled in a number of cases where this Court was dealing with appeals against sentence. It is well settled that the primary responsibility for measuring sentence rests on the trial Court; and that the Court of Appeal will not interfere with a sentence, unless the appellant can show that 10 there are sufficient reasons for such intervention. (See MichaelKougkas v. The Police

(1968)2 C.L.R. 209 at p. 212; Hapsides v. ThePolice

(1969)2 C.L.R. 64at p.66). It has also been said that sentencing is a delicate and difficult function of the Court charged with that responsibi- 15 lity (sec Anthony Castelow andAnotherv. ThePolice (reported in this Part at p. 141 ante; at p. 148); Michael Achilleos v. ThePolice(reported inthis part at p. 150ante; at p. 153)). It cannot bssaidin thiscasethat the Military Court didnothavegoodreasonsfor imposingontheappel- 20 lant a severer sentence than that imposed in the District Court. The same offence committed by a person in military service calls for a severer sentence than if committed by a young civilian; moreover, the Military Court made the sentence concurrent to that passed a few days earlier 25 by the District Court. On the other hand, the young appellant before us may feel that he has not had equal treatment with his other two co-accused, one ofwhom was considerably older than theappellant. Hemaywellfeel that his beingintheArmy 30 when committing the shopbreaking for which he was sentenced by the Military Court, was a disadvantage to him, which madehissentencesixmonthslonger than that of his co-accused. Taking all these matters into consideration, including the social and medical reports regarding the 35 appellant, we came to the conclusion, not without considerable difficulty and hesitation, that this appeal should. be partly allowed and the sentence of the Military Court beleduced soas to runfor the sameperiod asthe sentence of the District Court. The sentence to run from con- 49 viction." 198 2 C.L.R. Terezides and Another v. Republic Hadjianastassiou J. Having considered very carefully the authorities quoted, wefind ourselves in agreement with the Assize Court that the pattern of shop breaking in these two cases makes it necessary for this Court also to demonstrate by the sentence inflicted on 5 thetwo accused that professional shopbreaking of that magnitude will not be tolerated any longer. In the light of these facts and circumstances, and fully aware that thesentenceimposedon accused1and2maybeonthehigh side, nevertheless, we do not think that there is room for inter10 fering withthe decisions oftheAssizeCourt, andwewoulddi>miss the appeal once we think it is not manifestly excessive. Appeals dismissed, the sentence to run from the date of conviction. Appeals dismissed. 199