clr/1984/1984_2_425.pdf

(1984)to serve in the National Guard he challenged this Decision by means of a recourse. His recourse was dismissed in 1984and soon after the dismissal of the recourse the charges for which he was tried and those which were taken into consideration were filed against him. 5 The trial Judge rejected the evidence of the appellant to the effect, inter alia, that he did not enlist because he believed that he was not liable to serve because he was a citizen of the United States and had an American passport and because he was treated asan alien; but the fact that theappellant was the 10 holder of an American passport, that from 1960to April, 1977 he was treated as an alien and was only allowed to reside here on a temporary resident's permit as a visitor, that for a period of seven years after he was informed that hewas liable to serve in the National Guard he was never prosecuted for failing to 15 do so until after the dismissal of his recourse were undisputed facts mostly introduced in evidence by the prosecution. Upon appeal against sentence: Held,that even though the above undisputed facts may not have constituted a "reasonable cause" which is one of the in- 20 grcdients of the offences for which he was charged, they were, iievertheless, very material in deciding whether the appellant was acting under the bona fide misconception that he was entitled to be exempted from military service a fact that should have been taken into account in mitigation of sentence; that 25 the above facts and the failure of the authorities to take any actionagainsttheappellant between 1977and 1984couldreasonably lead a person to believethat therewas,at least, somedoubt astohisobligation to serveand,also,thattheauthoritiesshared that doubt; that taking into consideration in mitigation of the 30 sentencetheunreasonably longdelayonbehalf ofthe authorities in bringing the appellant to justice and that both in the course of the trial and before this Court the appellant has solemnly declared that he was now ready and willing to enlist and serve in the National Guard and that he is a man of good character 35 and with a clean record; and that although the offences committed by the appellant are, no doubt, of a serious nature, in the light of all the above circumstances, the sentence imposed is manifestly excessive and that it should be reduced so as to enable him to be released today. 40 Appeal allowed. 426 2 C.L.R. Tenicnos v. Republic Cases-referred to: Avgousti v. Republic

(1979)2 C.L.R. 263; Christodoulou alias Farfarosv.Republic

(1963)1 C.L.R.36; Terlas v. Republic

(1970)2 C.L.R. 30. 5 Appeal against conviction and sentence. Appeal against convection and sentence by Yiannakis Georghiou Temenos who was convicted on the 27th July; 1984 by the Military Court sitting at Limassol (Case No: 199/84) on twocountsof the offence of failing to enlist inthe National 10 Guard contrary to section 22(

1. a)of the National Guard Law:, 1964-1981 and was sentenced toconcurrentterms of imprisonment of one year on each count. 1 K. Saveriades with C. Saveriades, for the appellant. St. Tamassios,for the respondent. 15 L. Loizou J. gavethefollowingjudgment of the Court. The appellant wasconvicted on the 27th·July, 1984, bythe Military Court sitting at Limassol.in Case No. 199/84 upon a charge containing two counts for the offences of failing to enlist in the National Guard, without due cause, on the 17th January 20 and 18th July, 1983respectively, contrary to s.22(
2. a)of the National Guard Laws 1964 to 1981. He was sentenced to one year's imprisonment on each count, the terms to run concurrently. In passing sentence the Court, on the application of counsel 25 for the appellant and withthe consent of the prosecution, took intoconsideration two other casespending against the appellant (CasesNos. 146/84and 147/84) in relation to similar offences committed on various dates as far back as January, 1980. He appealed both against conviction and sentence but in 30 the course of the hearing the appeal' against conviction was abandoned and what we have to consider is the question of sentence. The relevant facts are briefly as follows: Appellant'sfather wasborn at Morphou, in Cyprus,in 1902. 35 He emigrated to the United States of America in 1927 and in 1955heacquired Americannationality. Hedied there in1958. 427 L. Loizou J. Tetneoos v. Republic

(1984)The appellant was bom in America on the 10th June,

1. On the 14thJuly, 1960,together with hismother and aninvalid brother he returned to Cyprus and they have lived here ever since. He is the holder of an American passport under No.
2. From 1960 to the 30th April, 1977, he was treated 5 by the authorities of the Republic as an alien and was allowed to reside here on a temporary resident's permit as a visitor whichhadtoberenewedeveryyearbutwassubjecttorevocation on fourteen days"notice. In 1976 hemade inquiries regarding his status and was informed by a letter dated 8th December, 10 1976, that he was a citizen of the Republic and liable to serve intheNational Guard. Butitwouldappear that, subsequently, correspondence wasexchanged between histhen lawyer and the appropriate government department and as a result he was informed by letter dated the 7th October, 1977, addressed to [5 his lawyer by the Migration Officer that he wasa citizen of the Republic of Cyprus unless he could produce evidence that his father hadrenouncedhisBritishnationality undertheprovisions of the British Nationality Act 1948, which was still in force at the time he acquired his American nationality. 20 In consequence the appellant filed a recourse No. 275/77 challenging the decision of the authorities that he wasa citizen of the Republic and liable to military service. His recourse was dismissed on the 14th January,
3. Soon after the dismissal of his recourse the charges for which he was tried and 25 those which were taken into consideration were filed against him. In the course of the trial the appellant, when called upon, gave evidence on oath. He stated, inter alia, that in January, 1974, when his friends and his school-mates went to enlist in 30 the National Guard he also went but they refused to enlist him because he was an alien. Nevertheless, he said, that at the time of the Turkish invasion he enlisted as a volunteer and served for two and a half months. He did not receive any notice to enlist after he filed his recourse until
4. He did 35 not enlist then, he said, because he believed that he was not liable toserve becausehewasacitizen of the United Statesand had an American passport and because he was treated as an alien and was only allowed to stay here on a temporary resident's permit as a visitor. Furthermore, he said, in 1980 40 428 2 C.L.R. Temenos v. Republic L. Loizou J. he set up a business as a sign-writer and was the only supporter of his family which consisted of his mother who was 65 years . old and of his brother who was 27 years old but mentally retarted and blind in one eye, neither of whom were in a position 5 to work. The trial Court in itsjudgment when dealing with the evidence of the appellant found that it was unnatural and in view of his whole demeanour they rejected it as untrue; and later on when considering the sentence they say that his allegations do not 10 constitute a defence or justification and that they reject them as baseless. But the fact that the appellant was the holder of an American passport, that from 1960 to April, 1977 he was treated as an alien and was only allowed to reside here on a temporary resij5 dent's permit as a visitor, thai for a period of seven years after hewasinformed that hewasliabletoserveintheNational Guard he was never prosecuted for failing to do so until after the dismissal of his recourse are undisputed facts mostly introduced in evidence by the prosecution. And even though such facts 20 may not have constituted a "reasonable cause" which is one of the ingredients of the offences for which he was charged, they were, nevertheless, very material in deciding whether the appellant was acting under the bona fide misconception that he was entitled to be exempted from military service a fact that 25 should have been taken into account in mitigation of sentence. See Spyros Avgousti v. The Republic

(1979)2 C.L.R. 263. Itseemsto usthat theabovefacts andthefailure ofthe authorities to take any action against the appellant between 1977 and 1984 could reasonably lead a person to believe that there was, 30 at least, some doubt as to his obligation to serve and, also, that the authorities shared that doubt. Another matter that we take into serious consideration in mitigation of the sentence inthe present caseisthe unreasonably long delay on behalf of the authorities in bringing the appellant 35 to justice. Had he been prosecuted within a reasonable time after the commission of the offences, the subject-matter of the charges in thesecases, and even assuming that the same sentence was imposed on him, he would have served his sentence long before these proceedings were instituted against him. Useful 429 L. Loizou J. Tcmenos v. Republic

(1984)reference may bemade, inthis respect, to Nicolas Christodoulou aliasFarfaros v. The Republic

(1963)1C.L.R. 36; andNicos Charalambous Terlas v. The Republic

(1970)2 C.L.R. 30. Inaddition totheaboveit isonrecordthat both inthecourse of the trial and before this Court the appellant has solemnly declared that he was now ready and willing to enlist and serve inTheNational Guard. Andthat heisaman ofgood character and with a clean record. 5 Learned counsel appearing for the Republic has fairly conceded that in all the circumstances of this case the term of 10 imprisonment imposed on the appellant wasexcessive and that it could have been for half that period. Although the offences committed by the appellant are, no doubt, of a serious nature, it is our view that, in the light of all the above circumstances, the sentence imposed is manifestly 15 excessive and that it should bereduced so as to enable him to be released today. The appeal is, therefore, allowed accordingly. Appeal allowed. 430