clr/1984/1984_2_349.pdf

(1984)the Court that he was serving the aforesaid termof 12 months' imprisonment and that 18 outstanding offences for housebreakingagainst himweretaken into consideration bytheCourt in passing sentence on 16.12.83. The second appellant had a similar previous conviction. In passingsentence inthiscase the 5 Court took into consideration a breaking and stealing by the first appellant and a breaking and entering into a supermarket by both appellants. The offence in this case as well as both offences which were taken into consideration in passing sentence against the first 10 appellant were committed during August and September 1983, that is prior to 16.12.83when the above sentence of 12months' imprisonment was passed on him for an offence of the same nature. Upon appeal against sentence: 15 Held,(i) that since the offence in this case as well as both offences which weretaken into consideration under s.81 of Cap. 155 in respect of the first appellant were committed during August and September 1983, that is prior to 16.12.83, when sentence was passed upon the appellant for anotlier case of the 20 samenature,and could betreated as outstanding offences which could have been taken into consideration under s.8I of Cap. 155,as ali other ingredients required by the said section were present at thetime,the termof hisimprisonment imposedshould run from the dateof sentences; and that though thetrial Judge 25 did not consider the conviction of 16.12.83 as a previous conviction for the purposes of the present case he was influenced by the fact that the first appellant was still serving a term of imprisonment of 12 months on 19.5.84 when sentence in the present casewaspassed, thereby orderingtheterm of thepresent 30 one to run after the expiration of the former sentence; accordinglythe appeal of the first appellant will beallowed bymaking hissentence commencefrom the 19.5.84whichIsthedatesentence was passed on this appellant.

(2)That there is no justification for interfering with the sen- 35 tence imposed on the second appellant because it is neither manifestly excessive nor wrong in. principle. Appealofthefirst appellant allowed. Appeal of the secondappellant dismissed. Cases referred to: 40 Cleovoulou v. Police

(1981)2 C.L.R.

1. 350 2 C.L.R. Varnava and Another v. Police Appeals against sentence. Appeals against sentence by Christakis Costa Varnava and Another who were convicted on the 19th May, 1984 at the District Court of Larnaca (Criminal Case No. 335/84) on one 5 count of the offence of housebreaking contiary to section 294(a) of the Criminal Code Cap. 154and were sentenced by G. Nicolaou, D.J'. as follows: Appellant 1 to one year's imprisonment to run after the expiration of the term of imprisonment of one year he was serving and appellant 2to 18months' 10 imprisonment. C. Clerideswith P. Protopapa (Miss), foi the appellant in Criminal Appeal
2. A. Eftychiou, for the appellant in Criminal Appeal
3. R. Gavrielides, Senior Counsel of the Republic, for the 15 respondent. TRIANTAFYLLIDES P.: The judgment of the Court will be delivered by Loris J. LORIS J.: By these two appeals, which have been heard together both appellants complain against the sentences passed 20 upon them bya District Judge of the District Court of Larnaca (where they werejointly tried'summarily, with theprior consent of the Attorney-General ofthe Republic given under s.24

(2)of the Courts,of Justice Law 1960- vide Larnaca Criminal Case No. 335/84) after they had pleaded guilty to the offence of 25 housebreaking contrary to section 294(a) of the Criminal Code Cap. 154. The. facts constituting the offence to which both appellants pleaded guilty are very briefly as follows: Both appellants on 30.8.83 broke andentered into a cafe-restaurant at Larnaca and 30 stole therefrom a cash-machine which had in its tills coins and notes worth £20.-; the cash-machine in question was traced few days later, empty, derelicted in the fields. The prosecution informed the learned trial Judge that Appellant in Cr. Appeal 4541 had twoprevious convictions notably a 35 minor assault and a disturbance which of course cannot be considered as previous convictions similar to the offence the said appellant had pleaded guilty; the prosecution though, invited the Court to note that appellant in Cr. Appeal 4541was still serving a term of imprisonment of 12months,having been 40 convicted and sentenced of housebreaking on 16.12.83; it is 351 Loris J. Varnava and Another v. Police

(1984)significant to note at this stage that the prosecution did not confine themselves in mentioning that.the appellant was serving a term of imprisonment but they went intodetails stating that 18 outstanding offences for housebreaking against appellant were taken into consideration by the Court in passing sentence on ^ 16.12.83. As regards appellant in Cr. 4543 it was mentioned to the trial Court that he had one similai previous conviction having been convicted on 23.6.81 for housebreaking and sentenced to two years* imprisonment (the term of imprisonment having been IQ reduced to one year by this Court - vide Kleovoulou v. The Police

(1981)2 C.L.R. 237). Before the learned trial Judge passed sentence both appellants applied and prosecution consented that the following outstanding offences to which appellants pleaded guilty bo taken , into consideration by the Court in passing sentence: A. In respect of appellant in Cr. Appeal 4541, alone, a breaking into PASYDY building on 15.8.83 and stealing therefrom 2 packets of cigarettes. B. In respect of both appellants a breaking and entering into a 20 supermarket on 16.9.83 and stealing therefrom £52.-. The trial Court having taken into considciation the facts and circumstances of the case, including previous convictions, personal circumstances of the accused, in the light of addresses by counsel in mitigation and the relevant social investigation 25 reports and having taken into consideration the outstanding offences set out above under s. 81 of Cap. 155passed the following sentences on 19.5.84: . Appeallant m Cr. Appeal 4541 was sentenced to one year's imprisonment to run after theexpiration of theterm c f imprison- 30 ment of 12 months he is now serving having been convicted as aforesaid on 16.12.83. Appellant in Cr. Appeal 4543 was sentenced to 18 months* imprisonment, Against these sentences the appeals under consideration were 35 filed. Learned counsel for appellant in Cr. Appeal 4541 elaborating on his client's appeal submitted that: 352 \ 2 C.L.R. Varnava and Another v. Police Loris J. (

1. a)The sentence is excessive in view of the fact that the appellant substantially had no previous convictions. 5 (
2. b)The term of imprisonment should in any event run from the date of sentence and not after the expiration of the term of imprisonment the appellant is now servinghavingbeenconvicted on 16.12.83; .thepresent offences including those taken into consideration in the present instance were committed prior to the 16,12.83. Learned counsel in Cr. Appeal 4543 submitted that 10 (
3. i)his client was sentenced to a term of imprisonment exceeding by sixmonths the term of imprisonment imposed on the other appellant whilst they had both played the same role in the commission of the offence; 15 (
4. ii)generally the sentence was excessive in view of the particular facts of this case and the low I.Q. of his client. It was repeatedly stated by this Court that the responsibility of imposing the appropriate sentence in a case, lies with the trial 20 Court. 25 "The Court of Appeal will only interfere with a sentence so imposed, if it ismade to appear from the record that the trial Court misdirected itself either on the facts of the case or the law; or that the Court, in considering sentence, allowed itself to be influenced by matters which should not affect the sentence; or, if it is made to appear that the sentence imposed is manifestly excessive in the ciicumstances of the particular case". (Ajxenti v. The Republic

(1966)2 C.L.R. 116 at p. 118). 30 It is transparent from'the record,*'that-the-trial Court leaned towards the deterrent effect of the sentence emphasizing "the necessity of the protection of the general public" from offenders of this nature, without overlooking mitigating factors placed before him by the appellants. We agree with the approach of 35 the trial Court on the question of punishment; but in the case • of appellant in Cr.Appeal 4541wehold theviewthat theterm of imprisonment imposed should run from the date of sentence i.e. the 19th May, 1984becausethe offence in question as wellas both offences which were taken into consideration under s. 81 353 Loris J. Varnata and Another *. Police (19S4) of Cap. 155 in respect of this appellant were committed during August and September 1983, that is prior to 16.2.83. when sentence was passed upon the appellant for another caso of the same nature, and could betreated as outstanding offences which could have been taken into consideration under s. 81 of Cap. 155 5 as all other ingiedients required by the said article were present at the time (and only accused's request to that effect was lacking -perhapsdueto thefact that hewasnotthen represented by counsel); of course the conviction and sentence on 16.12.83 could not, and the trial Court rightly did not, consider that 10 conviction as a previous conviction for the purposes of the present case but it seems that the trial Judge was influenced by the fact that appellant was still serving a term of imprisonment of 12months on 19.5,84 when sentence in the present case was passed, thereby ordering the term of the present one to run !5 after the expiration of the former sentence. Accordingly we feul that wc should intervene in the case of appellant in Cr. Appeal 4541 only in respect of the time of the commencement of such sentence; such time will be the 19th May, 1984, when sentence was passed on the appellant; this 20 appeal therefore succeeds to this extent only and the sentence of the trial Court is varied accordingly. As regards appellant in Cr. Appeal 4543 after hearing learned counsel for this appellant we hold the view that there is no justification foi interfering with the sentence imposed. It is 25 neither manifestly excessive nor wrong in principle. Obviously thetrialJudge had in mindin passingsentencethat this appellant had a previous conviction for a similar offence committed in 1981, whilst the other appellant was substantially a first offender and he was so treated by the trial Judge. 30 In view of what has been stated above, Cr. Appeal under No. 4543 is hereby dismissed. Appeal No. 4541 partly allowed. Appeal No. 4543 dismissed. 354