clr/1982/1982_2_23.pdf

(1982)old and he, also, had a previous conviction in which he was sentenced to five months' imprisonment; he was married and had an infant child. Appellant in Appeal 4284 was 19 years old and had no previous convictions. They were all men of good character otherwise, but they showed no sign of repentance with regard to the above offence they have committed. 5 Upon appeal against sentence: Held, that the maximum .term of sentence should be reserved tor tbc worse possible example of the offence concerned, though this does not mean that the maximum term must never be 10 imposed; that although the appropriate sentence in these cases is a sentence of imprisonment the maximum sentence provided by the law was not warranted by the facts of the case because there wen. some mitigating circumstances such as the fact that they were of good character, their relatively young ages and the 15 fact that one of them was married with an infant child; that as these offences are continuing offences and the sentence of imprisonment will not absolve the appellants of their liability to serve in the National Guard, the appeals will be partly a'Owed and the sentences of all three appellants be reduced thus giving 20 them another chance to reflect and reconsider their position; accordingly the sentence of appellant in Appeal No. 4245 will he Rduced to nine months, that of appellant in appeal 4246 to 15 months and that of appellant in 4248 to five months. Appeals partly allowed. Per curiam: It is quite clear that the reason why the appellants refused to enlist in the National Guard is that to do so and take up arms is contrary to their religious convictions. There may come a day when the need for conscription will no longer be pressing and sincere 30 conscientious objectors may be exempted from military service or may be given the choice of doing alternative non-combatant service but until such time comes and so long as the present law remains in force all 24 25 2 C.L.R. Solomouand Others v. Republic ciuVens liable for military service are bound to enlist and serve. Cases referred to: BitarandAnother v. Police

(1980)2 C.L.R. 225 at p. 226. 5 Appeals against sentence. Appeals against sentence by Georghios Michael Solomou and two others who were convicted on the 24th July, 1981and on the 18th August, 1981 by the Military Court sitting at Nicosia (Case Nos. 190/81, 191/81 andl35/81), of the offence 10 of failing to present themselves for enlistment contrary to seclion 22(

1. a)of Ihe National Guard Laws 1964 to 1979 and were sentenced to two years imprisonment. E. Vrahimi (Mrs.) for the appellants in Criminal Appeals 4245 and 4246. 15 E. Efstathiout for the appellant in Criminal Appeal 4248. St. Tamassios, for the respondent in all appeals. L. Loizou J. gave the following judgment of the Court. Th's judgment concerns three appealswhich we have heard separately this morning. The three appellants wsre convicted on their 20 own plea for offences contrary to section 22(
2. a)of the National Guard Laws 1964 to 1979, in thai when their age group was called up for service in the National Guard, they failed to present themselves for enlistment. In the case of the appellants in Appeals Nos. 4245 and 4246, 25 the charge against them contained three counts relating to three different occasions when they were called up, whereas in the case of the appellant in Appeal No. 4248, one count. Each appellant pleaded guilty to each offence and each of them was sentenced to twoyears imprisonment; in the case of the first 30 two for each count but it was ordered that the terms should 25 L. Lobou J. Solomon and Others v. Republic

(1982)run concurrently. They now appeal against thesentence passed upon them. The grounds of appeal in the first two appeals are that the sentence is excessive, that the Court did not take seriously into consideration the social investigation report, and that the Court did not give sufficient weight to the fact that lo enbOt in the National Guard is contrary to their religious beliefs as they are Witnesses of Jehovah. In the last appeal, No. 4248, the ground of appeal is that the sentence was manifestly excessive. 5 It is quite clear that the reason why the appellants refused to enlist inthe NationalGuaidisthattodoso andtake up aims is contrary to iheir religious convictions. There may come a day when the need for conscription willno longer be pressing and sincere conscientious objectors may be exempted from 15 militaiy service or may be given the choice of doing alternative non-corabatant service but until such time comes and so long as thepresent law remains inforce all citizen^liable for military service are bound to enlist and serve. We now come to the sentence imposed. The appellant ία 20 Appeal No. 4245is 22years oldand has oneprevious conviction for a similar offence in 1978, when he was sentenced to pay a tine of £30.-. The appellant in Appeal No. 4246 is 25 years old and he, also, has a previous conviction in 1978 in which hewas sentenced tofivemonthsimpiisonment. This appellant 25 is married and has an mfant child. The appellant in Appeal No. 4248 is 19 years old and has no previous conviction. All three appellants are described as men of good character other­ wise. it is true to say that with regard to tht offences which th^y 30 have committed, they showed no sign of /epentance. In fact we think that they bft no doubt in the mind of the Courtthat their intention is not to enlist in the National Guaid because of their religious beliefs. We have no reason to doubt thai 26 10 2 C.L.R. Solomou and Others v. Republic L. Lolzou J. they are sincere in their:beliefs but unfortunately for them, their religious beliefs is not among the grounds that exclude them from military service, as the law now stands. But the Military Court imposed upon these appellants the maximum 5 sentence that the law provides, although there were some mitigating circumstances such as the fact that ihey were of good character,thsir relativelyyoungagesandthefact that theappellant in Appeal No. 4246 is married with an infant child and the appellant is Appeal No. 4248 is a first offender, although, 10 with regard to this last appellant, it does appear that in the course of the hearing before the Military Court, at his own request, or on a request made on his behalf, he was given a chance to comply by enlisting, which he refused to lake. The principles with regard to maximum sentence have been 15 reviewed by this Court in a number of cases. We need only mention a fairly recent case, that of Ditarandanother v. The Polite,

(1980)2 C.L.R. p. 225. At p. 226 it was held that the maximumtermshould bereservedfor theworsepossibleexample of the offence concerned, though this does not mean that the 20 maximum term must never be imposed. In Thomas' Principles of Sentencing, 2nd Ed., at p. 32, it isstatedthat "the maximum,particularly whereitwasrelatively low,wasappropriatetotheworstexampleoftheoffence normally encountered in practice, rather than a hypothetical worst 25 example which might never occur." Although weconsider that the appropriate sentence in the^e cases is a sentence of imprisonment, we do not think that in ths present appeals the maximum punishment provided by the Law was warranted by the facts of the case. As these 30 offences are continuing offences and the sentence of imprisonment will not absolve the appellants of their liability to serve in the National Guard, we are inclined to the view that we should partly allow the appeals and reduce the sentences of all three appellants, thus givingthem another chance to teflect 35 and reconsider their position. In the light of all the circumstances, the sentence of the appellant in Appeal No. 4245, Georghios Michael Solomou, 27, L. Loizou J. Solomoa and Others τ. RtpubUc

(1982)is reduced to nine months. That of the appellant in Appeal No. 4246, Christakis Nicola Papacharalambous, is reduced to 15 months; and that of the appellant in Appeal No. 4248, David Yiannaki Droushioti, is reduced to one of five months imprisonment. 5 Appeals partly allowed. 2S