clr/1984/1984_2_441.pdf

(1)that the sentence imposed on the appellant is neither manifestly excessive nor wrong in principle.

(2)That combining a fine with a suspended sentence of im­ prisonment is not contrary to law; that care, however, should betaken by trial Judges adopting this course that the fine should 441 Eracleous v. Police

(1984)be within the means of the sentenced person, so that it will not defeat the purpose aimed at by the Judge,when he came tothe conclusion bearing in mindthe circumstances of thecase, that it was desirableto afford the sentenced person an opportunity to avoid serving a term of imprisonment. 5 Appeal dismissed. C-^es referred to: Marcos and Others v. Police

(1975)2 C.L.R. 171; R. v. King [1970] 2 All E.R. 249. Appeal against conviction and sentence. 10 Appeal against conviction and sentence by Georghios Eracleous who was convicted on the 7lh August, 1984 a* the District Court of Nicosia (Criminal Case No. 22686/83) on one count of the offence of common assault contrary to section 242of the Criminal Code, Cap. 154,on one count of the offence 15 of public insult contrary to section 99 of the Criminal Code, Cap. 154, on one count of the offence of threatening violence contrary to section 91(c) of the Criminal Code, Cap. !54 and on one count of the offence of disturbance contrary to section 95 of the Criminal Code, Cap. 154 and was sentenced by 20 Kronides, S.D.J, to six weeks' imprisonment on the first count, one week's imprisonment on the second count and to six weeks' imprisonment on the third count with no sentence passed on the fourth count, the sentences to run concurrently; he was further ordered to pay a total fine of £50.-. 25 Appellant appeared in person. A.M. Angelides, Senior Counsel of the Republic, for the Respondents. A. Loizou J. gave the following judgment of the Court. The appellant having been found guilty of the offences of com- 30 mon assault, contrary to section 242, public insult, contrary to section 99, threatening violence, contrary to section 91(c), and disturbance, contrary to section 95 of the Criminal Code, was sentenced to six weeks* imprisonment on the first count, one week's imprisonment on the second count, and six weeks' 35 imprisonment on the third count. No sentence was passed on thefourth count as it emanated, as it wassaid by the learned 442 2 C.L.R. Eracleous v. Police Λ. Loizou J. trial Judge, from the same facts that constituted the offences in the other three counts. These sentences were ordered to run concurrently, and suspended for a period of three years under the provisions of the Sentence of Imprisonment (Condi5 tional Suspension in Certain Cases) Law, 1972 (Law No. 95 of 1972). The appellant was further fined C£20.- on the first count, C£I0.- on the second and C£20- on the third one. The appellant appealed against both his conviction and sent­ ence but in arguing his case before us. he abandoned the appeal 10 against conviction and pursued only his complaint against the sentence imposed on him. The facts of the case as appearing in the judgment of the Court are as follows:On the 6th November, 1983, the complainant who is a pra15 ctising lawyer of Nicosia, was with his wife and young son visiting his native village Platanistassa in order to attend the engagement of a friend that was taking place there. At about 4.30 p.m. he decided to reiurn to Nicosia. He proceeded with his wife by car to "Achilleas" Club looking for their young eon. 20 The wife of the complainant alighted from the car and looked for their son but as the latter was not there she returned to the car. At that time the appellant was coming together with another person from the opposite direction and started shouting and insulting the complainant with very nasty words which 25 need not be repeated here. He approached the car continuing the insults and with his hands started pushing the car by holding it from the half-opened window. Prompted by his wife, the complainant started the car and left the scene of the incident. They went towards the outskirts of the village but as they did 30 not find their son they returned still in search of him. 35 When passing by the place thatthe first incident had occurred, the complainant noticed that the appellant had thrown some­ thing at his car. He stopped, descended from it and said to the appellant: "What do you want, are you a man to insult me". The appellant immediately started assaulting the com­ plainant and hit him with his hands. The complainant put his handsin front of his face inorderto protect himself and retreated and got in his car. The complainant's wife who was shocked by the incident she witnessed told the appellant: "What are 443 Λ. Loizou J. Eracleous v. Police

(1984)these things you are doing?" And the appellant said: "Tell him not to come to the village because 1 shall shoot him". The appellant is a first offender, married with six children aged between 8 to 20. Two of themare serving in theNational Guard, two are attending a secondary school and two the Elementary School. He is an invalid since 1966 as a result of an accident which occurred when he was himself a soldier and his earnings were stated by his counsel at the trial to be C£80.- per month. 5 On the totality of the circumstances before us, we have come 10 to the conclusion that the sentence imposed on the appellant is neither manifestly excessive nor wrong in principle. The conduct of the appellant amounted in effect to bullying the complainant in circumstances that cannot be tolerated by the Courts and are abhorrent to our Society. 15 As regards the question whether a suspended sentence of imprisonment could be combined with a fine, we have no doubt that such a course is open to Courts. In the case of Mavros and Others v. The Police

(1975)2 C.L.R. p. 171, it seemed to this Court there was no obstacle to combining a suspended 20 sentence with a fine, though the matter did not arise for deter­ mination in that case. It referred, however, in support of that, to the case of R. v. King [1970] 2 All E.R. 249, where it was held that there is nothing in principle to prevent a Court when imposing a suspended sentence from imposing a fine also 25 which adds a sting to what might otherwise be thought by the convicted person to be a "let-off", but in imposing such a fine special care should be taken to see that it is well within the convicted person's means to pay, otherwise if a fine is given which results in imprisonment then the danger foreseen by the 30 trial Judge might well arise. We respectfully endorse and adopt fully this approach. We have no difficulty in holding that combining a fine with a suspended sentence of imprisonment is not contrary to law. Care, however, should be taken by trial Judges adopting this 35 course that the fine should be within the means of the sentenced person, so that it will not defeat the purpose aimed at by the Judge, when he came to the conclusion bearing in mind the 444 2 CX.R. Eracleous v. Police A. Loizou J. circumstances of the case,that it wasdesirable to afford the sentenced personan opportunity toavoid servinga term of imprisonment. For all the above reasons this appeal i* dismissed. 5 Appeal dismissed. 445