clr/1984/1984_2_311.pdf

(1972)2 C.L.R. 73; Varnava v. Police

(1975)2 C.L.R. 129; Karydas v. Police

(1978)2 C.L.R. 102; Hints- v. Republic

(1963)I C.L.R. 14; Kakouris v. Police

(1972)2 C.L.R. 42; Antoniou v. Police

(1983)2 C.L.R. 319. Appeal against sentence. Appeal against sentence by Nabil Kamal Chikh who was convicted on the 18th July,. 1983 at the District Court of 311 Chikh v. Police

(1984)Limassol (Criminal Case No. 10806/83) on one count of the offence of burglary contrary to section 292(

1. a)of the Criminal Code, Cap. 154 and was sentenced by Eleftheriou, D.J. to 18 months* imprisonment. Appellant appeared in person. 5 A.M. Angelides, Senior Counsel of the Republic, foi the respondents. Cur. adv. vidt. TRIANTAFYLLIDES P.: Mr. Justice Malachtos will deliver the first judgment. 10 MALACHTOS, J. The appellant, a young sailor from Syria aged 18.was charged, on thodirections of the Attorney-General of the Republic, under the powers vested in him by virtue of section 155(
2. b)of the Criminal Procedure Law, Cap. 155, before a District Judge of the District Court of Limassol, with the 15 offence of burglary and theft contrary to section 292(
3. a)of the Criminal Code and was convicted, on his own plea of guilty and sentenced to 18 months' imprisonment. The particular of the offence appearing in the Charge Sheet, are the following: 2** "The accused between the 8th and 9th day of June, 1983, at Limassol, in the District of Limassol, at night time, did break and enter a building used as a human dwelling by Lucita Lampano, Lvzzena Zapata, Meicedita Apolinio and Liwayway Aicaraz all from Philippines now Limassol 25 with intent to commit a felony theiein, to wit, he (the accused) stole therefrom a golden necklace, valued at £200.- and the sum of £350 in cash, the property of Lucita Lampano, 2x100 USA dollars, valued at £100.- and a golden ring,valued at £20- the property of ErzzenaZapata, 30 a lady's golden ring, valued at £15.-the property of Mercedita Apolonio and atravellingcheque of PANAMERICA for the sum of 50 USA dollars the property of Liwayway Aicaraz all from Limassol". The appellant was at the time a member of the crew of the 35 vessel "Saloua" which was berthed at the Limassol port. On the 6th June, 1983, he left the ship and stayed in Limassol; he visited the Brazil Cabaret where he met the complainants who were working there as artists; he also came to know the house where they were residing. On the night of 8th June, 1983,the appellant kept watch out312 40 2 C.L.R. Chikh v. Police Malachtos J . side the house where the complainants were residing, each one in a separate room, and after they·left for work he broke and entered therein and stole the property referred to in the Charge Sheet. 5 At about 4 a.m. of the 9th June, 1983, when the complainants returned home from work they noticed that the doors of their rooms, which they locked before they left, were forced open and their valuables and money were missing. They immediately reported the matter to the Police. 10 As the owner of the 2x100 USA dollars kept a note of their numbers the Police traced one of them in the possession of Prosecution Witness No. 6, who had changed it into Cyprus currency to an Arab and gave his description. As a result, the appellant was traced and arrested and all the stolen property 15 was found in his possession, with the exception of the sum of £350.- in Cyprus currency. The trial Judge in passing sentence upon the appellant remarked the following: 20 25 30 35- 40 "To ύπό κατηγορίαν αδίκημα είναι πολύ σοβαρας μορφής και είναι άττό τα πιο σοβαρά αδικήματα ττοΰ προνοεί ό Κυπριακός Ποινικός Κώδικας εξ-ου και ό νομοθέτης τό χαρα­ κτηρίζει κακούργημα άντϊ πλημμέλημα και συνεπάγεται φυλάκιση 10 ετών. Ό σκοπός και ή έπιδίωξις του νομοθέτου ήτο σεβασμός ττρός τό απαραβίαστο της κατοικίας ώς και ό σεβασμός καί ή προστασία της ξένης περιουσίας. Τό αδίκημα της διαρρήξεως και κλοπής είναι ένα πολϋ σύνηθες αδίκημα. Εϊς πλείστες των περιπτώσεων τα Δικαστήρια της Κύπρου επιβάλλουν ποινές φυλακίσεως άπό 2-6 χρόνια εις την προσπάθεια τους να τονίσουν ότι τό κακούργημα της διαρρήξεως κατοικίας καί κλοπής πρέπει να αναχαιτισθεί ούτως ώστε οι ΐδιοκτήται οίκιών όταν εγκαταλείπουν τά σπίτια των νά αισθάνονται ασφαλείς και νά διεκδικούν άπό τη Δημοκρατία ή οποία έχει καθήκον νά προστατεύει την περιουσία των πολιτών Οπως ή περιουσία των παραμείνει άθικτος. Ή αυστηρά ποινή πού επιβάλουν τά δικαστήρια γιά τό κακούργημα τής διαρρήξεως καί κλοπής έχει ακόμα ένα άλλο σκοπό, νά δημιουργεί εις τους εγκληματίες τό αίσθημα οτι τό κακούργημα αύτο εΐναι πολϋ σοβαρας μορφής καί άντυχόν πιαστούν τότε πρέπει νά εΤναι σίγουροι ότι θα εκτίσουν ποινή φυλακίσεως. 313 Uitachtos ·ί. Chikh \. Police

(1984)Κατά κανόνα ποινή φυλακίσεως επιβάλλεται εκεί όπου τούτο προιίστως δικαιολογείται και εμπίπτει στά πλαίσια μερικών αποδεχτών άρχων πού διέπουν τήν επιβολή της, δηλαδή διά λόγους δημοσίας ασφαλείας, αποτροπής, αντα­ μοιβής και επανορθώσεως κατηγορουμένων προσώπων. Αϊ ώς άνω άρχαι πρέπει νά εξετάζονται μετά τής μεγίστης δυνατής προσοχής εν συσχετισμώ με όλας τάς σχετικός περιστάσεις μιας εκάστης υποθέσεως. Ή ποινή πρέπει νά αρμόζει τόσο με τό αδίκημα όσο καί με τόν εγκληματία. Χαοίκ/.ηα 6-Π. ~<>JLOV Turmot) ν. Ίη/ιοκοατίας

(1970)2 C-L.R. 5 10 Ή επιβολή ποινής είναι σημαντικόν έργον και πολύ λεπτός ρόλος του έργου των ποινικών δικαστηρίων. Ποινή φυλα­ κίσεως με γνώμονα τήν κοινωνική ασφάλεια πρέπει νά επι­ βάλλεται έκεϊ όπου οιαδήποτε ποινή είναι ανεφάρμοστος. 1S Λαμβάνοντας υ π ' όψιν τά περιστατικά μιας έκαστης υποθέ­ σεως πρέπει δε πάντοτε νά αποφεύγεται καί νά αποτελεί τό τελευταίο καταφύγιο. Έκεϊ όπου τούτο είναι ανεφάρ­ μοστο πρέπει ιά επιβληθεί ποινή φυλακίσεως διά νά εξυ­ πηρετήσει ένα άπό τους σκοπούς πού διέπουν τήν επιβολή 2'* της. Λαμβάνοντας υ π ' όψιν τά περιστατικά τής υποθέσεως, τη φύση τοΰ αδικήματος, τό γεγονός ότι ό κατηγορούμενος είναι 18 ετών χωρίς προηγούμενα εις Κύπρο λαμβάνεται ύπ* όψιν εις τήν επιμέτρηση τής ποινής. Δεν αγνοώ τό 25 γεγονός Οτι ό κατηγορούμενος άπό τήν κατοικία τών παραπονουμένων έκλεψε μεγάλα χρηματικά ποσά ή περιουσία μεγάλης αξίας. 'Εάν πρό στιγμής έσκεφτόμουν νά επιβάλω οιανδήποτε ποινή εκτός άπό αυτήν τής στερητικής τής ελευθερίας ι ο ύ κατηγορουμένου θα ήμουν βέβαιος ότι δεν 30 έκαμνα το καθήκον μου εις τό άκέραιον. Έχοντας πάντοτε ύ π ' όψιν μου τά περιστατικά της παρούσης υποθέσεως καί τάς νομικάς αρχάς πού διέπουν τήν έπιβολήν ποινής φυλα­ κίσεως λείαν επιεικώς επιβάλλω εις τον Κατηγορούμενον Ιδμηνη φυλάκιση άπό σήμερα". 35 ("The offence cha ged is of a veiy serious natuie and is of the most serious offencei which are provided for by the Cyprus G i m i n a l Code and for this reason the legislator describes it as a crime instead of misdemeanor and is liable to ten yeais' imprisonment. The purpose and intention of the legislator was respect for the non-violation 314 40 \M. Chikh *. Police Malachtf» .1. of a dwelling house as well as respect and protection of property. The offence of breaking and stealing is a very common offence. . In most of the cases the Cyprus Couits impose terms of imprisonment from 2-6 years.in their endeavour to emphasise that the crime of breaking into dwelling houses and stealing must be stopped so that when owners of dwelling hoxises leave their houses, they can feel safe and expect f.om the Republic which has a duty to protect the property of citizens that their property remains intact. The seve:c punishment which the Courrs impose for the crime of bicaking and stealing has still another purpose, to create for the criminals the feeling that this crime is of u vdy serious nature and if they are caught then they must be sure that they will serve a sentence of impιisonment. A* a rule a sentence of imprisonment is imposed when in the lirst place it isjustified and fall.·»within the framework of some accepted rules which govern its imposition, i.e. for reasons of public safety, deterrence, rewaid and redress of accused persons. The above rules must be examined with the greatest care in combination with all the relevant circumstance* of eve.y case. The sentence must suit the offence as well as the offender. Chariklia Sozou Tattari v. Republic

(1970)2 C.L.R. 6, II. The imposition of sentence is an important task and the role of Judges trying criminal cases very delicate. Sentence of-imprisonment with-the object of- social~safety: must be imposed where any sentence is inapplicable taking into consideration the cheumstances of each case, but it must always be avoided and must constitute the last measure. Where this is not applicable, a sentence of imprisonment must be imposed to serve one of the purposes which govern its imposition. Taking into consideration the circumstance of the case. the nature of the offence, the fact that the accused is 18 years old without any previous convictions in Cyprus is taken into consideration in passing sentence. I do not ignore the fact that the accused stole from the dwelling house of the complainants large sums of money or property of a great value. If for a moment I thought of imposing any sentence other than that of deprivation of lite liberty 315 Malachtos J. Chikh v. Police

(1984)of the accused Γ would be certain that I would not be per­ forming my duty in full. Having always in mind the circumstances of the present case and the legal principles governing the imposition of a sentence of imprisonment, very lenienlty 1 impose ontheaccused 18months'imprisonment as from to-day"). 5 AL stated in the Notice of Appeal, which was filed by the appellant from prison, theground on which the appeal is founded is that the sentence is excessive. It has been well established in a considerable number of cases decided by this Court that we cannot on appeal substitute our own assessment of the right sentence in place of that of the trial Court. This Couit can only interfere if the sentence, imposed by the trial Couit, is either manifestly excessive or wrong in principle. 10 15 In the present case I must say that the sentence imposed by the trial Court is neither manifestly excessive nor Wiong in principle, but it is, in my view, the proper sentence imposed in the circumstances. I would, therefore, dismiss the appeal. TRIANTAFYLLIDES P.: The next judgment will be delivered by Mr. Justice Pikis. PIKIS J.: The appellant an eighteen-year old Syrian sailor, appeals against thesentenceof 18months'imprisonment imposed by Eleftheriou, D.J., on a count of burglary, involving the theft 25 of C£450- in Cyprui Pounds and U.S.A. dollars, and jewelleiy worth C£235.-. The victims were Philippo artists who became acquainted with the appellant the night before the commission of the crime. Appellant sought, unsuccessfully it seems, to cultivate an intimate lelationship with one of them in the course 30 of a visit to the Limassol cabaret where they practised their trade. The offence was committed while the complainants were absent from the roome where they stayed at a Limassol hotel. He was apprehended shortly after the commission of the offence and accosted with having committed the crime. He readily 35 confessed and returned thejewellery that was still in his possesssion intact, and part of the money stolen. He was unable to return a sum of C£368.00 he had apparently spent. In a statement to the police, he maintained that his motive for the 316 20 2 C.L.R. Chikh v. Police Pikis J . commission of the crime was to induce one of the artists who deniedhimthenightbefore tospend anight with him.byreturn­ ing the stolen jewelleiy. Arguing his appeal before us. appellant referred to his sad 5 family background, his pooi health having had to undeigo an opeiaiion while in piison, and his youth, as factors militating for thereductionof thesentencepassed by thetrial Court. Mr. Angelides for the prosecution, submitted there is no room for interference with thesentencepassed, either from thestandpoint 10 of principle or the length of the sentence imposed. 15 20 25 30 35 Perusal of the record of the Court, reveals two irregularities, serious in ourview. Thepolice officer who conducted thepro­ secution, was allowed to make a statement to the effect that thereis noproof about theprevious convictions of theappellant, as he is a foreigner, a Matement implying that appellant is probably burdened with previous convictions in the countιy of his origin, albeit convictions thepolicewereunable to prove. It was a statement calculated to diminish theeffect of his clean record as a mitigating factor. The trial Judge, instead of dismissingthis insinuation as to previous convictions,ashe should have done, attached someweight to it, as may be gathered from the reasoning of hisjudgment. Instead of treatingtheappellant as a Hist offender, he confined his statement on the subject to the fact that appellant had no previous convictions in Cypius, a statement revealing an inclination to attach limited importance to theabsence of a record of pievious convictions. As amatter of piinciple,noonecanbe deemedtobeburdened with previous convictions unless same are strictly proved, in the absence of admission, like any other fact. This principle applies without distinction to foreigners as well. Nopiesumption can be made that a foreigner committing an offence in Cyprus is bound to have committed similar offences in the country of his origin or anywhere else for that matter. Any such distinction would defeat the principle of equality before the law, safeguarded by Article 28 of theConstitution. Thisisnottheonly misdirection on the part of the trial Court. There is another misdirection, more substantive in nature, that merits comment and justifies our intervention. Indeteiminingtheseriousness of theoffence from thestatutoiy 40 viewpoint, thetrial Judgeacteduponthepremise thatthe offence 317 Pikis J. Chikli \. Police

(1984)was punishable with 10years' imprisonment, notwithstanding the fact that ihe offence, after the consent of the AttorneyGeneral to its summary trial, was punishable with only 3years' imprisonment. The Attorney-General may, in exercise of the power;, vested in him by s.155 of the Criminal Procedure Law, 5 consent to the summary trial of any indictable offences. Further, in cases of offences punishable with 7years' imprisonment or less, he may likewise consent to their summary trial under the provisions of s.24

(2)of the Courts of Justice Law—14/60. It was inconect. therefore, on the part of the trial Judge, to 10 describe the offence under trial before him as one punishable with 10years' imprisonment. Aftei the cxercife of the itatutoiy powers vested in the Attorney-General, the statutory gravity of the offence was reduced to one limited to 3 years'imprisonment. In his endeavour to establish the norm for the punish- 15 ment of burglars, the trial Judge surmised that sentences vary from 2 to 6years' imprisonment, probably the norm for burglars triable on indictment. The trial Judge premised his judgment on its statutoiy gravity, undiminished by the fact of reduction of the offence, to a summaiy one. The length of imprisonment 20 was. so fos as it may be gatheted from the printed record, chosen, inter aiia, by icference to— (a) the statutoiy gravity of the offence, unmitigated by its reduction to a summaiy one, and (b) the sentences appioved in the past for the punishment 25 of burglars tried on indictment. In Hints v. Republic

(1963)1 C.L.R. 14, the Supreme Couit discerned no incompatibility between the provisions of s.24 defining the criminal jurisdiction of the District Couit*, and those of s.155 of the Criminal Procedure Law—Cap. 155, 30 empowering the Attorney-General to remit a case for summaiy tiial despite its gravity under the law. Section 155, Cap. 155, constitutes a special enactment leconcilablc with the provisions of s.24; thus, the Attorney-General has a discietion to sanction the summaiy trial of any indictable offence, provided he is 35 satisfied that it is expedient to do so in all the circumstances of the case, including the punitive poweis of the District Court. In other words, the Attorney-General is entitled to preview Section 24—Courts of Justice Law, 14/60. 318 2 CL.ll. Chikh >. Police Pikfc. 1 . the case and ifof opinion that in the totality of its circumstances there is merit in reducing it to a summary one, he may sanction its summaty trial, whereupon the offence becomes one punishable with no more than 3years' imprisonment. Itis an iudiiect 5 process of re-classification of the statutory gravityof \he offence by icference to the facts surrounding its commission. 10 15 20 25 30 The maximum punishment to which an accused is liable, is a factor of paramount importance in determining the length of a sentence of imprisonment. It is the maximum punishment to which the accuced is liable that determines the outer end of the scale—the ceiling. And this is one of the starting points in the process of determining the sentence to be imposed. This principle is ind:reclly established by cases deciding when it i·;.proper to met out the maximum punishment provided by law —a punishment permissible only in ca^es of ruvdened recidivists beyond social ledcmption—See. Kakouris v. The Police

(1972)2 C.L.R. 42. .In the words of Triantafyllidcs, P., the maximum punishment is only permissible if "all hope of reforming the appellant and protecting society from him" has disappeared. More tecently, in Antoniou v. The Policedecided on 27.10.1983 —Criminal Appeal No. 4464 (as yet unrepoited),*thepoint was explicitly made that an indictable offence remitted for summaiy trial in exercise of the powers of the Attoinvy-Geneial. becomes a summaiy offence for sentencing purposes. And any sentences to be imposed, must be reconciled and be compatible with this reality. Therefore, consecutive sentences of imprisonment for burglaries, committed at about the same time, adding up to 2 years 9 months, approaching the maximum sentence pe.missibie in law, wc.e reduced, on account of the fact, inter alia, that appellant was not an inedeemable iccidivist. The ratio of the above case isthat indictable offences reduced to summaiy onesbytheAttorney-General become,foi pmposes of sentences. summaiy offences, forfeiting their statutory giavity. We are of opinion, in view of the foiegoing, that the trial 35 Judge failed to appreciate the gravity of the offence in a coriect perspective, a failure that led him to an error of principle lespecting the gravity of the offence in law. This misdirection was fuither compounded by the failure of the trial Judge to ticat the appellant as a first offendei for all putposes. and attach * Now reported in

(1983)2 C.L.R. 319. 319 Pikis J. Chikh v. Police

(1984)proper weight to this mitigating factor. Our intervention is necessary in order to remedy the fallacious approach of the trial Court as to the gravity of the offence and the mitigating effects of the fact that appellant was a first offender. This mis­ apprehension of the legal and factual context of the case led the 5 trial Court to impose a sentence manifestly excessive in the ci cumstances of the case. The sentence is reduced to one of 12 months' imprisonment from the date of conviction. In the result, the appeal is allowed and the sentence is reduced accordingly. 10 TRIANTAFYLLIDES P. This is an appeal against the sentence of eighteen months' imprisonment which was passed upon the appellant, who is an eighteen years old sailor from Syria, and who pleaded guilty to the offence of burglary and theft, contrary to section 292 (a) of the Criminal Code Law, Cap. 154. 15 Γ have had the privilege of reading in advance the judgments prepared by my brother Judges Malachtos J. and Pikis J. and I do not intend to state once again in my own judgment all the salient facts of this case which are not really in dispute and which are adequately referred to in the said two judgments. 20 The appellant, who has insisted on presenting his appeal without the assistance of counsel, even though he was informed that such assistance could be made available to him at public expense, has contended that the sentence of eighteen months' imprisonment is manifestly excessive. I agree with Malachtos J. that the sentence which was passed on the appellant should not be interfered with and, conse­ quently, 1 cannot agree with Pikis J. that it should be reduced. I am of the opinion that, in view of the nature of the offence for which the appellant has pleaded guilty and the circumstances 30 in which it was committed, the sentence that was imposed on him, even though it may be severe, is not manifestly excessive or wrong in principle and, therefore, this Court as an appellate tribunal cannot inteivene in his favour (see, inter alia, Esper v. The Republic,

(1972)2 C.L.R. 73, Varnava v. The Police, 35

(1975)2 C.L.R. 129 and Karydas v. The Police,

(1978)2 C.L.R. 102). I have carefully considered the reasons for which it has been propounded that the sentence should be reduced to twelve 320 25 Chikh r. Police 2 C.L.R. Triantafvllides P. months' imprisonment but I regret that I cannot agree with them: I cannot regard the statement in the judgment of the trial Court thattheappellant "hasnopreviousconvictionsinCyprus" 5 as revealing that the appellant was not actually treated as a firstoffender when the sentence that was passed on him was assessed. Theappellant isan alien and no material wasplaced before the trial Court showing whether or not he had anyprevious conviction elsewhere. Thus, when the trial Court— 10 quite properly in my opinion—stated that the appellant had no pieviou> convictions in Cyprus it cannot be regarded as having espoused the view that, because the appellant is an alien, hewasexpected to prove himself that hehad no previous convictions elsewhere and that, not having done so, he was 15 not treated as having a clean record. In the absence of any information given, in this respect, either by the prosecution or by the appellant, his record elsewhere than in Cyprus was entiiely irrelevant as it was totally unknown to the trial Court; and I am not of the view that the 20 trial Court was affected in favour or against the appellant by its lack of knowledge about such record. Furthermore, I cannot agree with the proposition that the trial Court in assessingsentenceerroneously treated the offence in question as being punishable with ten years' imprisonment 25 even after theAttorney-General of the Republic, in theexercise of his powers under section 155(b) of the Criminal Procedure Law, Cap. 155, had consented that the case should be tried summarily, with the result that a sentence of imprisonment exceeding three years could not be passed upon the appellant. 30 The said section 155(b) of Cap. 155 reads as follows: "155. Whenever any person shall have been committed for trial on information, the Attorney-General may(a) _ 35 „ , (b) if he is of opinion that the case may suitably be dealt withsummarily underthepowerspossessedby aCourt of summaryjurisdiction, direct that such ca>ebe tried and determined by any such Court, notwithstanding that such offence could not otherwise be triable by such Court". 321 Triantafytlidcs P. CMUi v. Police

(1984)In my opinion the action taken by the Attorney-General under the above quoted section 155(

1. b)did not reduce the maxi­ mum punishment which was provided by law. that is ten yean,' imprisonment under section 292(
2. a)of Cap. 154. but it only rendered thecase tiiable summaiily with theιesiiItthat a punish- 5 ment of only up to three,out of thesaid ten.years' imp.isonment could be impored on the appellant; consequently, if the trial Court had decided to send the appellant to prison for a period of three years it could not have been said that there had been passed upon the appellant the maximum sentence envisaged by 10 law for the offence in question, but oniy the maximum pait of such scitencc which could have been imposed summarily. Section 155(
3. b)of Cap. 155 can only be regaided as a provision allowingthe Attorney-General, in a case in which he thinks that the p.opcr punishment—if the accuted person is convicted— need not exceed the three yeais sentence of imprisonment that can be impoced by a Court of summaiy jurisdiction, to remit the case for summary tiial since f. om the punitive point of view no useful purpose would be served if the case was tried by an Assize Couit. 15 I, therefore, cannot accept as co.rect the view that the trial Court was not entitled to evaluate the ieriousnecs of the cace before it bearing in mind not only the maxium punishment of ten yea^s provided by law for the offence which the appellant had committed but, also, the fact that sentences of two to'six 25 years' imprisonment arc usually impored for such an offence. which has, unfoitunately, become more p.evalcnt recently than before. For all the foregoing leasons this appeal has to be dismissed. 1 would like, howe\er, to conclude by observing that as the 30 appellant is an alien and he has shown genuine repentance for what he has done, and ar, moreover, it seems that his health has deteriorated while he ha; been in prison, thic seems to be a suitable case for consideration by the competent organs with a view to remission of sentence, at an early date in the 35 future,, undei Article 53/· of the .Constitution (see, inter alia. the ca;es of Esper ?.nd Varnava. supia),Court: Γη the result this appeal is dismissed by majority. Appeal dismissed bv majority. 322 20