clr/1983/1983_2_295.pdf

(1983)Uponappealagainst sentence: Held,per A. Loizou, J., Loris and Pikis,JJ. concurring, that with his remarks 'he trial Judge might be misunderstood that he had approached the matter in such a manner as if with the sentence he was minded to and indeed in fact imposed he was 5 makingthese two appellants pay also for the misdeeds of others as it could not clearly be said that it was merely a case of just taking judicial notice of the prevalence of offences for which aJudge is entitled and in respect of which he had a duty to impose the appropriate, in the circumstances, deterrent sent- |0 ence; that the circumstances under which the offence in respect ofwhichtheappellants weresentenced revealnothing morethan a youthful folly and it should have been treated in that spirit; that imprisonment, generally speaking, on young people, unless otherwise called for, should, as far as possible, be avoided the 15 more so when it entails grave consequences on the future life and career of the accused, as in this case; that the sentence imposed on the appellants is manifestly excessive and it would have equally met the requirements of the administration of justice if, taking into consideration both the circumstances of 20 the two appellants, each one of them was ordered to enter into hisown recognizance in thesum of£100.-for oneyear to come up for judgment if and when called upon and that he would not be called upon so long as he commits no similar offence. Per Loris, J.: The trial Judge failed to individualize the case 25 to the degree necessary to fit the offender; Per Pikis,J.: That the impressionthat isapt to beconveyed by the emphasis laid by the trial Judge on previous warnings of his to other offenders isthat the administration ofjustice is personalised whereas it should be ministered upon a basis of 30 universality and made to rest upon premises susceptible to objective scrutiny; that the conclusion of the trial Judge was reached without inquiry into whether the warnings came to the notice of the accused; and that, moreover, the prevalence of theoffences wasjudged from the angleofthepersonal experience 35 of the judge and not from a wider perspective that should encompass the administration of justice in Cyprus as a whole, or parts of it. Appeals allowed. 296 2 C.L.R. Jenkinson and Another v. Police Appeals against sentence. Appeals against sentence by Sac Malcolm Brian Hardman Jenkinson and another who were convicted on the 15th September, 1983 at the District Court of Limassol (Criminal 5 Case No. 13921/83)on one count of the offence of stealing contrary to sections 255,262and 20of the Criminal Code,Cap. 154 and were sentenced by Fr. Nicotaides S.D.J, to one month's imprisonment. C.P. Erotocritouwith P. Mouaimis, for the appellants 10 A.M. Angelides, Senior Counsel of the Republic, for the respondents. The following judgments were given. A. Loizou J.: Bythese two appeals which have been heard together inviewof their nature,theappellants complain against )5 the sentence of onemonth's imprisonment imposedonthemby the District Court of Limassol, upon their having been found guilty on their own plea of the offence of stealing, contrary to ss. 255, 262 and 20 of the Criminal Code, Cap. 154. According to the particulars of the offence as set out in the 20 charge sheet, the two appellants on the 10th July, 1982, at the locality "Asprokremnos", area of Platres, in the District of Limassol, did steal two flags valued at C£13- the property of the Democratic Labour Organization of Cyprus (DEOK). The two appellants, both aged 21,are members of the Royal 25 Air Force (RAF) stationed at Platres. The first appellant (appellant in Criminal Appeal No. 4467) is married but his wife was not in Cyprus. The second appellant (appellant in Criminal Appeal No. 4468) is single. The first one is on a nine year engagement with RAF and the second on a seven 30 year engagement. On the night in question the two appellants who had been preparing the organization and function of a sports event at Troodos and after having successfully completed their work, had a coca-cola and two beers and they were in good spirit. 35 At about 1.30 a.m. on their way back to Platres, they took away two flags, one of the Republic of Cyprus and the other of Greece, from the entrance of a summer camping place of 297 A. Loizou J. Jenkinson and Another v. Police

(1983)the Democratic Labour Organization (DEOK). The next day having realized the significance of what they did, they decided to return the two flags to the Military Police. They drove down in their car toa Non Commanding Officer's house and they left them on the door-step. Later, however, they 5 made a clean breast of it to their Commissioned Officer and expressed their sorrow for what they did. Their defending counsel in his plea in mitigation before the trial Court, reiterated theirsorrow and apologies to allconcerned, emphasizing that in no way they intended to offend any- 10 body. Thelearned trial Judge inthecourse of the proceedingsmade certain comments to the effect that on three or four occasions British soldiers stoleflagsof the Republic of Cyprus and that he had repeatedly warned that this sort of behaviour should 15 stop. In passing sentencehealso referred to that fact and that the leniency shown by the Court on such previous occasions had been-misunderstood and had not been appreciated. Viewing the case on its totality, I have felt that with his remarks the trial Judge might be misunderstood that he had 20 approached thematter in such a manner as if with the sentence he was minded to and indeed in fact imposed he was making these two appellants pay also for the misdeeds of others, as it could not clearly be said that it was merely a case of just taking judicial notice of the prevalence of offences for which 25 a Judgeisentitled and in respect of which he had a duty to impose the appropriate, in the circumstances, deterrent sentence. To may mind the circumstances under which the offence in respect of which the appellants were sentenced, reveal nothing 30 more than a youthful folly and it should have been treated in that spirit. Imprisonment,generallyspeaking,onyoungpeople, unlessotherwisecalledfor,should,asfar aspossible,beavoided. More so when it entails grave consequences on the future life and career of the accused, as in this case, where under existing 35 Military Regulations custodial sentences, except for special circumstances which do not exist in this case, bring about their dismissal from the service and in addition to anything else 298 2 CUR. Jenkinson and Another v. Police A, LoizoQ J. results in great financial loss, apart from the opportunity of continuing the career of their choice in respect of which they have had so far a good record, as the Court had beenassured by their Commanding Officer. 5 Indeed Counsel for the respondents has in all fairness approaching the case in its right perspective, did not press it and we are much grateful to him. In my view the sentence imposed on the appellants is manifestly excessive and it would have equally met the requirements of the administration of JO justice if, taking into consideration both the circumstances of the offence and the personal circumstances of thetwoappellants,each one of them wasordered toenter into his ownrecognizance in the sum of C£100.- for one year to come up for judgment if and when called upon and that he would not be 15 called upon so long as he commits no similar offence. PIKISJ.: I wholly agree with whatever has fallen from Brother Justices A. Loizou and Loris, and concur to the proposed order. That I add something of my own, is solely duetomyconcernabout anaspect ofthecaseIregard ashighly 20 unsatisfactory. It is this: The emphasis laid by the trial Judge on previous warnings of his to other offenders convicted of similar offences as a measure for the determination of the sentence. The impression that is apt to be conveyed, is that the administration of justice is personalised, whereas it should 25 be ministered upon a basis of universality and made to rest • upon premises susceptible to objective scrutiny. In his short judgment the trial Judge, after noting previous warnings given to British soldiers convicted of similar offences, he concludes: 30 "I feel that 1am not prepared to show the leniency that I showed in the past and, as a result, the accused are sentenced to one month's imprisonment". Theconclusion wasreached without inquiry into whether the warnings came to the notice of the accused then standing con35 victed before him, be it whether they ought to have come to their notice. Moreover, the prevalence of the offences was judged from the angle of the personal experience of the Judge 299 Pikis J. Jenkinson and Another v. Police

(1983)and not from a wider perspective that should encompass the administration of justice in Cyprus as a whole, or parts of it. I do not wish to minimise judicial discretion in the determination of sentence, only to identify the principles that should underlie its exercise. 5 Lokis J.: I agree with my brother Judge Loizou; it is apparent that the trial judge failed to individualize the case to the degree necessary to fit the offender. A. Loizov, J.: In the result both appeals are allowed. Sentence of imprisonment imposed on each appellant is set 10 aside and an order is hereby made that each appellant shall enter into his own recognizance in the sum of C£100.- for one year to come up for judgment as and when called upon. He will not be called upon so long as he commits no similar offence. Appeals allowed. 15 300