clr/1983/1983_2_319.pdf

(1983)of reform, approach and way of life couple with his age, 24 years old, the appellantfitsinto thecategory of an intermediate recidivist; that generally, Courts are reluctant to write off young personsand confront themwiththefull severity ofthelawunless all hope for their reform has vanished; that in the light of this 5 reality and the progress made by the appellant in prison it was wrong onthe part oftheCourt to make the sentenceconsecutive to the sentence hewasserving;that adding upthe two sentences the term is one of two years and nine months, very close to the maximum that the Court could have imposed in the first place 10 i.e. in July, 1982had it been required to take the present offence into consideration as well; that for these reasons this would be undesirable in view of the age of the accused; that moreover, the trial Judge inthis case ought not to have made the sentence consecutive in view of real progress made in prison and the real 15 prospect of rehabilitation of the appellant; that, consequently, the sentence of imprisonment imposed in this case on 5th September, 1983 will be reduced to one coinciding with the expiry of thesentenceof imprisonment appellant wasserving atthe lime soas to allowthe release ofthe appellant in a day or 20 two. Appeal allowed. Cases referred to: Martey v. Republic, 1964 C.L.R. 143; Kakouris v. Police

(1972)2 C.L.R. 42. 25 Appeal against sentence. Appeal against sentence by Stelios Antoniou who was convicted on the 5th September, 1983 at the District Court of Larnaca (Criminal Case No. 1414/83)on onecount ofthe offence of burglary contrary to section 292(

1. a)of the Criminal Code, 30 Cap. 154 and was sentenced by G. Nicolaou, D.J. to nine months' imprisonment to run consecutively to the sentence he was serving. Appellant appeared in person. A. M. Angelides, Senior Counsel of the Republic, for the 35 respondents. TRIANTAFYLLIDES, P.: The judgment of the Court will be delivered by Mr. Justice Pikis. PIKIS, J.: In collaboration with two others the appellant 320 2 C.L.R. Antoniou v. Police Pikis J. burgled into the house of a distant relation of one of his accomplies and stole therefrom cash of £57.500 mils and valuables worth £80.- The crime remained undetected until the 27th July, 1982 when an accomplice of the appellant 5 confessed the commission of the offence setting afoot police investigations for its discovery. Meantime the appellant committed other offences, apparently of a similar nature, in thecontext of what appearsto havebeena housebreakingspree for which he wasprosecuted before the Nicosia District Court. 10 On 18th July, 1982, he was sentenced to a term of two years' imprisonment. In connection withthepresentproceedingstheappellant rirst appeared before the District Court of Larnaca on 23rd May, 1983 toanswertothecharge. Althoughheadmitted the offence 15 the case was adjourned on the application of his co-accused andinordertoallowtimefor thepreparation ofasocialinquiry report. He was dealt with by the Court as well as his coaccused on 5th September, 1983. He was sentenced to nine months' imprisonment to run consecutively to the sentence he 20 was serving, a sentence that is about to expire today. The learned trial Judge in a well considered judgment makes reference to the facts of the case, somewhat alarming because of the lack of any restraint on thepart oftheappellantandhis accomplice in engaging upon the criminal venture, as well 25 as the circumstances of the appellant and concluded that the sentence imposed should commence after the expiration of the two years' sentence of imprisonment. But for the fact that the appellant was serving a sentence of imprisonment, the trial Judge noted, he would be inclined to impose a sentence twice 30 as long. Before us the appellant made an impassioned plea inviting usto allow his immediate release in order to givehim a chance to reap the benefits of his reformed approach to life and work habits. His last stay inprison helped him reflect on the point35 lessness of crime that caused him apart from his incarceration the break-up of his marriage. His wife divorced him while in prison. He is gravely concerned about the fate and well being of their four year old child. The trade he learned in 321 Pikis J. Antonlou v. Police (19S3) prison, pyroligneous wood engraving will make possible his profitable employment and help him sustain himself in life and helphischild. Heisanxioustobegiven achancetomake a fresh start not an impossible eventuality to contemplate given his age, 24 years old. 5 Notwithstanding his age the accused is burdened with some 18previousconvictionsmostlyfor offences involvingdishonesty. He vouched never again to collidewith the law, a collision that retarded inthepast his socialandfamily progress. Hepointed to his last record in prison asforeshadowing a reformed life. 10 Thesubmission ofappellant that hetransformed his approach and way of life while in prison is supported by the officer who prepared a social inquiry report into the person and circumstances of the appellant. Of this changehe gave ampleindication to theprison authorities byevincinga spirit of cooperation 15 with everyone while in prison and applying himself hard to learn a trade. His good conduct earned him the right or privelege to be released on licence during weekends. In sum his plea that he reformed is supported by theWelfareOfficewho looked intohis case. Counsel for the Attorney-General found 20 himselfunabletosupport thedecisionofthetrialJudgetomake the sentence imposed consecutive to the one appellant was undergoing at the time of its imposition, rendering the sentence excessive. The progress made by appellant in prison, he acknowledged, merited better consideration. 25 We are of opinion that a sentence of ninemonths'imprisonment is correct in principle in that it is commensurate to the gravity of the offence and accords with the circumstances of the offender. Only one point is at issue: The soundness of the decision to make the sentence consecutive in view of 30 (
2. a)thefact that the offence under consideration wascommitted prior to the one for which appellant was sentenced, the two years' imprisonment and (
3. b)evidence showing that appellant improved his ways while in prison reducing the likelihood of appellant engaging in criminal activity in future. 35 The term of imprisonment imposed in July, 1982could have had no reformative or rehabiliatory effects upon the appellant as far as the commission of the offence under consideration 322 2 C.L.R. Antonion τ. Police Pikis J. is concerned in view of the date of its commission, 8th June, 1982. We are, therefore, in agreement with the trial Judge that his task lay mostly in the determination of the overall sentence of imprisonment that the Court would have been 5 likelyto impose inJuly, 1982haditbeenapprised of thepresent case as well. Of course,thetask of theCourt was not confined to an exercise in retrospect but enlightened by the hindsight of progress made while in prison after 18th July, 1982. Whenever the Court contemplates the imposition of a term 10 of imprisonment for a series of offences though it must strive to evaluate the gravity and implications of particular offences it must ultimately impose a sentence that reflects the overall culpability of the accused on the one hand and matches the person of the offender on the other. See Keith Marley v. 15 The Republic, 1964 C.L.R. 143. Sentencing is a fine and intri­ cate process that aims to vindicate the law and retreive to the extentpossible theoffender for thebenefit of himself and society. In deciding thelength of a sentence of imprisonment theCourt musthaveasapremiseatoneendofthescalethattheimposition 20 of the maximum sentence permitted by law is only justified in two situations: When thenature of thecrime is such as to call for exceptional measures of deterrence in the interest of social order firstly and secondly whenever the criminal record of the accused is such as to shun all hope of reform. In other words 25 whenever thepast record of theaccused makes himanirredeem­ able recidivist. This principle thatthemaximum sentenceinthe second category mentioned above is reserved for irredeemable recidivists, is echoed in the decision in Kyriacos Georghiou Kakouris v. The Police

(1972)2 C.L.R. 42. As Triantafyllides, 30 P. put it "Indeed, such a sentence (meaning the maximum) could have been imposed only if all hope of reforming the Ap­ pellant andprotecting society from him,by any lesserperiod of imprisonment,hadbeenlost; ". In his work on sentencing D.A. Thomas discerns on areview 35 of English cases on sentencing another category of recidivists thatheclassifies asintermediaterecidivists i.e.persons for whom hope of reform has not altogether been lost. In this category comepersonsfor whom,onaccountofageorpastcircumstances, a glimmer of hope still exists for their reform while their list of 323 Pikis J. Antoniou v. Police

(1983)previous convictions is not soextensiveas tocategorizethem as hardened recidivists. (D.A. Thomas Principles of Sentencing, 2nded.,pp.20-22). AsthelearnedauthorputsitCourtsmaybe impelled to a merciful conclusion in cases of intermediate recidivists in the face of evidence that they have established re- 5 lations and habits that are apt to have a stabilizing effect upon their life. Ona reviewof thelistofpreviousconvictions ofthe appellant, his circumstances and evidence of reform, approach and way of life coupled with hisage, 24years old, the appellant fits into this category of offenders. Generally, Courts are 10 relunctant towriteoff youngpersonsandconfront them withthe full severity of the law unless all hope for their reform has vanished. Inthelightofthisrealityandtheprogressmadebythe appellant inprisonitwaswrongonthepartoftheCourttomake thesentenceconsecutivetothesentencehewasserving. Adding 15 up the two sentences the term is one of two years and nine months, very close to the maximum that the Court could have imposed in thefirst place i.e. inJuly, 1982had it been required to take the present offence into consideration as well. For the reasonsgivenabovethiswould beundesirable inviewof theage 20 of the accused. Moreover the learned trial Judge in this case ought not to havemade the sentenceconsecutive in viewofreal progress made in prison and the real prospect of rehabilitation of the appellant. Consequently, we reduce the sentence of imprisonment imposed in this case on 5th September, 1983 to 25 one conciding with the expiry of the sentence of imprisonment appellant wasservingatthetimesoastoallowthereleaseofthe appellant in a day or two. Appealallowed. Order accordingly. 324