(1987)1987December 12 [A LOIZOU,LORE,STYUANIDES,JJ] BIRUTAMARCO, Appellant, ν THEREPUBLIC, Respondent, (Criminal Appeal No. 4919). Sentence — Mitigatingfactors— Co-operation withthePoliceleadingtoarrestof accomplice—Conduct deserving creditandwarrantingdeferentialtreatment in favour of the appellant — Sentence of 3 1/2years' impnsonment for possessingacontioil:ddrug (872grams ofheroin)withintendtosupply/itto anotherperson •n'po>,edonappellant, whohadco-operated< saforesaidwith thePolice,andonex accuseds— Sentence onappellantred-icedto3yeai:'" impnsonment Sentence — Dispar ν-ifsentence — Sentencers should takemlo account /at' <• ·. • warrantingden rcrtial treatment m favour of an offender —Co opciaunn withthe Folic-• leading to arrestofan accomplice is suchafactor— J-; r. • sentence {31/J\ ears imprisonment)imposed onbothappellantandsuw-n accomplice —Sentence on appellantreduced by 6months Sentence — Pcs<-,cs>ion of n.ircotic drugs (872 grams of heroin) w.th m,c;r -o supply it to other peisons — 3 1/2years' impnsonment — Appeni.i > divorced woman ofAustnan Nationality withaminorchild— 'Γηυ se^n'ii, •as such is not excessive — Personalcircumstances should ·η cays oi ir„s nature,be given littleweight —Fact thatthe drug wasnot intended lot the people of thisCountry isnot afactorthatcanbe takenintoconsidnai on Theappellant,adivorcedwomanofAustrian Nationalitywi'h ι mineι child of 11 wascaughtatLamacaAirportwhen shewasabout t 0 ttdu toi Alliens. having in her possession872 gramsof heroin On arrest, atte-having been cautionedshereplied «I amsorry,theyweregiven tomeby a rrijn<t-< 'Λ lady somewhere inLamaca, letmeshowtheplace» Asamatter of fact theappellant ledthepolicetoaHotel and indxatecthe room,wherethe drugwashandedovertoherbythe «lady»referredtoin the aforesaid statement 188 2 CX.R. Marcov. Republic As a result, the Police was able to arrest ex-accused 2, a nurse from Lebanon,whoconfessed thatshe hadhandedover the drugtotheappellant. The appellant also gave to the-Police the name of the brain behind this unlawful enterprise,who isa maninSpain. 5 10 The appellant as well as ex-accused No. 2 were tsntenced by theAssize Court,on theirown pleas of guilty to3 1/2 years' imprisonmenteach Counsel for theappellant complained interalia thatthesentence imposed on herisexcessive,thatherpersonal circumstances were notproperly taken intoconsiderationby thetnalCourt,andabove allthatshewas punishedwith thesame termof impnsonmentas ex-accused 2was punished. Held,allowing theappeal,A.Loizou,J. dissenting: (A)PerLorisJ.
(1)The sentence is not excessive. The trial Court did not fail to individualise the sentence totheextent warranted by thecircumstances. 15 20
(2)However, the trial Court lost sight of an important factor, notably disparity of sentence,which rendersthesentenceunderconsideration, wrong in principle and calls for ourintervention Theterm «dispanty» is used inthe sense that the sentences ignored factors, warranting differentvation o' the sentence in favour of the appellant. t3) The factor warranting differentiation in favour of this appellant is li.-r immediateconfession ίοthePoliceandabove allherfull cooperation Άi;h I'm1 Police
(4)In the circumstances, the sentence should be reduced to 3 w.·-: imprisonment i^> 30 35 B;PerStyiiamdesJ (DThefac;tho! thenarcoticdruynvJv:jJ ;.:th.tCn..· v-a-- no' intended for the people of ihis country, is not ο focfc· in?'.;.a·-"·· take'· irr.oconsideration (2; liaving regard to thegravity and the prevalence cA :heo'lcu · andthe personal circumstances of the appellant which mcases of narcot'c; 'houg'i they ν,εηηοίbe o\erlooked, they are only ingeneral an'llhc marrjrp'il fae'er thesentence of threeandahalf years is notexf essuv
(3)However, the fact thatthe ofiender has given infotmatio'i ι: the Po\<r.inconnectionwith theinvestigation orprosecution oi oiK'nce^t ·. "..miiteu l\ other persons must be taken into account, where an oftenJt:r. who has committed grave offences, discloses tothepolice nturmationof value inthe investigation of grave offences committed by others, or the -fivoivement of othersinthesame offences, thesentencer maygivecredit k> the offender by discountingthesentencetoasubstantial degree,butthee\tfe,uof :hediscount isa mattertobe decided inrelation tothecircumstances of t paiticular case 189 Marco v. Republic
(1987)
(4)This appellant is entitledtocreditandjustice willbe doneinthiscase,if the sentenceisreduced by six monthsto threeyears'impnsonment. Appeal Slowedby majonty. 5 Casesrefen-edto: Alexandrou ν TheDirectorof Customs{1985)2 CL.R. 47. Mehmetv ThePolice
(1970)2 CLR.62; R v.Newton. 4 Cr App. R 8; R. v.Hawkins and Others [1986] Cr.L.R 194; R. v.Smith (19861 Cr.LR 641, 10 R. v. Walton[1987) Cr.L.R 512, Pinkhs ν TheRepublic
(1985)2CL.R.232; Vryonisv.ThePolice
(1986)2 C.LR. 103; Koukos v.ThePolice
(1986)2 C.L R. 1; Georghiouand Othersv. TheRepublic
(1987)2 C.L.R. 109; 15 R. v. Towle, The Times. 23.1.86. R. v. Wintle.The Times.23.1 86, Azinas andAnother v. ThePolice
(1981)2C L.R 29; Antoniades ν ThePolice
(1981)2C.L R.29; Sultan v. TheRepublic
(1983)2C.LR. 121; 20 Loizou v. TheRepublic
(1971)2C.L R. 196; Rahma v. TheRepublic
(1984)2 C L.R 363, R ν Lowe [1977] Cr App R 122. R. v. Daviesand Gorman [1978] 68Cr App R. 319 Appealagainstsentence. 25 Appeal against sentenceby BirutaMarcowhowas convictedon the 15th October, 1987 at theAssize Court of Lamaca(Criminal Case No. 7185/87) on one count of the offence of possessing controlled drugs contrarytosections2,3,6
(1)
(2),30 and31 ofthe Narcotic Drugsand PsychotropicSubstances Law, 1977 (Law No 30 190 2 C.L.R. Marcov. Republic 29 of 1987 as amended by Law 67/83) and on one count of the offence of possessing controlled dug with intent to supply it to otherscontrarytosections2,3,6
(1)
(3),30and31oftheabovelaw and was sentenced by Nikitas, P.D.C., Laoutas, S.D.J, and G. 5 Nicolaou D.J. to3 1/2 years' imprisonment on the second count with nosentence beingpassed on the first count. E.EfstathiouwithC.Kamenos, forthe appellant. A. M. Angelides, Senior Counsel of the Republic, for the respondent. Cur.adv. vult. 10 Thefollowing judgments were read: A.LOIZOU J.: Iam afraid Icannot agree with approach of my ' learned Brethren inthis appeal. TheLamacaAssizeCourtfoundtheappellantguiltyonherown plea, of two counts. One of possessing a controlled drug, Class 15 «A», of Part 1, of the First Schedule, namely 872 grams of Diamorphine, generally known as heroin without a permit from the Minister of Health, contrary toSections 2,3, 6
(1),
(2),30 and 31of theNarcoticDrugsand PsychotropicSubstances Law, 1977 (Law No. 29 of 1977) as amended by Law No 67 ot 1983.This 20 was Count 1, on the information The other was Count 2 on the information of possessing the said drug with intent tosupply itto anotherperson contrarytoSections2,3,6
(1)
(3),30and31of the said Law. Asregardsthefirst countthe appellantwasjointlycharged with 25 one Rose Youssef Fahd, of Lebanon, a nurse forty-one yearsof age, hereinafter to be referred to as ex-accused 2, who was also charged on a separate count, -count 3 on the information, -with supplying on the 20th June 1987, to another persoi the said controlled drug 30 Ex-accused 2, pleaded also guilty to both counts 1,vid 3. The appellant was sentenced to three and a half"years imprisonment onthesecond count and ex-accused 2tothree and a half yearsof imprisonment on the third count. No sentence was imposed on both ofthem on thefirstcount forpossessionastheoffence wasin 35 substance contained in the other two counts. In support of this approach the Assize Court cited the case of AJexandrou v. The Directorof Customs
(1985)2 C.L R 47 Needless tosaythat the 191 A. LoizouJ . Marcov. Republic
(1987)drug inquestion and the otherexhibits used inthecommission of the offence were forfeited The facts of the case are bnefly these. The appellant who is forty-two years of age, of Russian origin but Austnan nationality, resides and works since 1982 in Madnd as a mechanic of 5 electronic calculators She came to Cyprus from Madnd and stayed at the «Sunhall» hotel Two or three days later, namely on the 21st June 1987, when she was about to depart from Lamaca airport for Athens, she was subjected toapersonal search andthe Customs and Police Authonties discovered part of thequantity of 10 the said controlled drug packed in a prophylactic, and hidden in her genital organs Theremainingquantitywas carefully hiddenin her handbag and the high-heeled shoes she was wearing The latter quantity was discovered by the Police when the appellant asked tochange her shoes 15 Upon an analysis of the substance in question by the experts at the Government Laboratory it was ascertained that the pure content in heroin was 305 2 grams This is the quantity of heroin theAssizeCourthad in mind inpassingsentencefinding it,onthe strength of the authonty of Mehmet ν ThePolice
(1970)2 C LR 20 62 that itwas unnecessary toamendtheparticulars of the offence on theInformation The appellant gave valuable information to the Police, which led tothearrest of ex-accused 2 Indeedshe went about with the Police pointed out the hotel-room in which the heroin was 25 delivered to herby two foreigners, one manand awoman,thatis the hotel in which ex-accused 2 was staying, who had arnved at Lamaca from Junieh Lebanon the day before Ex-accused 2 was arrested, later that day She gave a voluntary statement to the Police m which she referred in detail to the circumstances under 3Q which thetransportationof theheroinfrom Lebanonwas effected She said thatshe had taken delivery of itatJuniehfrom a person with whom they had prearranged to do so and who paid to her five-hundred dollars remuneration,theinstructionsbeing thatshe would deliver same toa Lebanese who would approachherupon 35 her amval atLamaca Port Infact a young Lebanese unknown to her, but whom from the conversation she ascertained thathe was to be therecipientof the heroin,metherattheportandthey went together to the hotel where later the Lebanese brought the appellant towhom thedelivery was effected 192 2 C.L.R. Marco v.Republic A. LolzouJ . Itmay be mentioned here that in the course of the address in mitigation of learned counsel fortheappellant, facts contradicting the version of the prosecution as contained in the voluntary statement of the appellant, Exhibit 2, were alleged. As "the 5 difference, however, between thosefactswassubstantial, inso far as the appropriate sentence to be imposed was concerned, the Assize Court heard evidence in order to be in a position to ascertain the correct factual background for the purposes of sentence. Itrightlydirected itself on the law and referred in that 10 respect to the cases of R. v. Newton, 4 Cr. App. R. (S) 8; R. v. Hawkins and Others [1986] Crim L. R. 194; R. v. Smith [1986] Crim. L. R. 641;R. v. Walton [1987] Crim. L.R. 512 and to the judgmentsofthisCourtinPirikkisv.TheRepublic
(1985)2 C.L.R. 232 and Georghios Vryonisv. The Police
(1986)2 C.L.R.
- 15 On the other hand the appellant wasapproached inMadrid by a Lebanese by the name of Rihana, who promised her employment, a fact that would allow her to have additional income.Sinceshewasinneed ofmoney,beingdivorcedfrom her husband, she accepted. Itwas he who approached her again on 20 the 10th or 12th of June and instructed her to come to Cyprus and take delivery of narcotics from a man who would telephone to her at the «Sunhall» hotel where she would stay. He gave her 160,000Pasetasand the balance ofherremuneration amounting to300,000 Pasetaswould have been paid toherwhen she would 25 deliverthe«staff» there.TheequivalentinCyprusmoneywasinall £1,
- The Assize Court then examined the conflicting versions and made itsown findings preferring her statement to the Police. Her counsel stressed in particular in hisaddressthe fact that she gave 30 decisive assistance to the Police and also to the fact that since January last she was undergoing psychiatric treatment with favourable results.Agoodconductcertificate wasproduced tothe effect that she has no criminal record in Spain. Itwas also urged thatshe became thevictimofpersonswhoexploited her financial 35 needswhich were caused byheractivitiesinthecasino. The Assize Court observed that both the appellant and exaccused 2, were organs of others. Itmay, however, be said that without the cooperation of people like the appellant and exaccu$ed 2, the smuggling of narcotics would have been limited 40 immensely.TheAssizeCourtthen wentontosaythatthe manner 193 A. Lolzou J. Marcov. Republic
(1987)thefirstappellant acted byhidingtheheroin inhergenital organs, showshowdeterminedshewastosucceed inhermissionandthat peopleshouldnotbepermittedtosolvetheirfinancialproblemsin such a manner that ultimately condemns other fellow human beingstoa slowand degrading death. 5 I may at the outset say that the sentence imposed on the appellant isnotassuch excessiveinthecircumstancesandthather personal circumstances includinghercooperation with the Police to trace ex-accused 2, were duly taken intoconsideration by the AssizeCourtwhich indeed individualized thesentenceitimposed 10 asthe case called for. Itmay be pertinent to quote here form the text-book of G. M. Pikis,«Sentencing inCyprus», at p.27where itissaid: «It has been repeatedly held that admission of the crime upon arrest isa valid reason for mitigation. The weight that 15 may be attached to confessions will depend on the stage at which an admission ismade, other evidence inthe handsof the police suppor i: ng the charge and generally the motive behind theconfession Certainly,greaterweightisattached to a confession made out of remorse than a belated confession 20 solelydesigned toimprovetheposition ofthe accused.» Moreover oneshould notlosesightofthefactthatheroin isone of the most dangerous narcotics, itiseasily concealable and of a great street value once Usquantity can be increased and turned into small doses in thisway and because of itsaddictive nature it 25 fetches great profits so there isa wide margin for corruption and attraction ofcollaborators.ItisforthesereasonsthatthisCourt has upheld onappealsentencesofimprisonment rangingfrom four to sixyears as regards thiscategory of narcoticsand I agree with my brother Loris,J., who hasjustsaid that he «didnot hesitatesaying 30 that the sentence under consideration viewed from this angle is notexcessiveatall;Itisratheronthelenientside,inparticularifwe bear in mind thatthe narcotic inquestion isheroin». Itiswith the approach of mylearned brethren on the question of disparity of sentence that mydisagreement rests. Asregards disparity Ihad the occasion to deal with the matter and refer to a number of authoritiesinthe case of Koukos v. The Police
(1986)2 C.L.R. 1, at pp. 10-12, which approach was adopted in the case of Georghiou and Others v. The Republic 194 3o 2 C.L.R. Marco v. Republic A. Lolzou J.
(1987)2 C L R 1 0 9 a t p p 118-119 Ineed nottherefore repeat them here Suffice it to say that as pointed but by Thomas on Pnnciples of Sentencing atpp 69-70,« a dilemma anses when the Court is of the opinion that the sentence passed on the 5 appellant is correct and those passed on his co-defendants are inadequate To reduce the sentence passed on the appellant would result in a further incorrect sentence In the face of this situation the Courtwill not normally reduce the longer sentence unless the dispanty isparticularly gross» 10 Reference mayalso be madetothecase ofRegma ν Towleand Regma ν Wmtle, The Times 23 1 1986, where it was held that «when a Courtwas considenng anappeal against sentence based on dispanty, what was relevant was whether nght-thinking members of the public, knowing all the facts and looking at what 15 had happened,would say 'something has gone wrong hereinthe administration of justice which has resulted in one or more convicted persons being treated unfairly' The fact thatparticular persons had asense of grievance was neitherhere northere » Itisobvious thatthesentenceimposed ontheappellantisinthe 20 circumstancesof thecase notmanifestly excessivenoristhereany dispanty as regards thesentenceimposed onherincompansonto that imposed on ex-accused 2, so as to be considered that something has gone wrong in the administration of justice which has resulted inher being treated unfairly andjustify thereduction 25 of hersentence by this Courton appeal For all the above reasons I dismiss the appeal LORISJ Thepresent appeal isdirected against thesentenceof 3 1/2 years' impnsonmentimposed ontheappellantby theAssize Court of Lamaca {Lamaca Cr Case No 7185/87) after she was 30 found guilty, onherown plea,oftheoffences ofpossessing{Count I) narcoticdrugs viz 872 grams of heroin without theauthontyof the Director of Medical Services, and for possessing the same narcoticswith intenttosupply themtoothers(countII) contraryto theprovisions of theNarcotic Drugsand Psychotropic Substances 35 Law 1977, (Law No 29 of 1977) as amended by Law No 67 of 1983 Thesalient facts of this case are bnefly as follows The appellant aged 42 of Austnan Nationality,divorced, with a minor child 11 years of age, was residing and working ever since 195 Loris J . Marco v.Republic
(1987)1982 in Madrid. She arrived in Cyprus by air. via Athens, on 18.6.1987, and stayed attheSun Hall Hotel at Lamaca. On 21.6.87 at 13hourswhen she wasatLamaca airport about to depart for Athens, she was searched and the quantity of the aforesaid narcotic drugs was found carefully concealed in her private parts, her shoesand herbag. On arrest, after having been cautioned shereplied:«Iamsorry,theyweregiventomebyaman and a ladysomewhere inLamaca, let meshow the place.» 5 Asa matter of fact the appellant atthesame timeledthe Police toa hotel in Lamaca town, the name of which she did not know, 10 and indicated to the Police room No. 1of the said Hotel as the room where the 'Lady' she had referred toafter caution, handed over toherthe quantity ofthenarcotic drugsinquestion.Thesaid Hotelwas«Katlithea»HotelandroomNo.1 thereof,wasoccupied byex-accused No. 2 in thiscase who had arrived inCyprus from 15 Lebanon on 20.6.1987. Ex-accused No.2,anurseofLebanon,wastracedbvthe Police that very afternoon, she wasarrested and she confessed that she didhandovertotheappellantthenarcoticdrugsinquestionwhich she had brought with her from Lebanon; ex-accused No. 2 20 admitted that she arrived from Lebanon on 20.6.87 and that she stayed at «Kallithea» Hotel-room No. 1-where she delivered the narcotic drugs in question tothe appellant. The appellant also gave to the Police the name of the brain behind thisunlawful enterprise, inSpain. "^ Asa result of the immediate confession of the appellant to the Police and the information she has furnished in respect of ther collaboratorinCyprusex-accused No.2wasarrestedand brought tojustice for possessing {CountI)andsupplyingtotheappellantexaccused No. 1-(Count II)the narcotic drugs inquestion. 30 The appellant as well asex-accused No.2 were sentenced by the Assize Court, on their own pleas of guilty, to 3 1/2 years' imprisonment each. Ex-accused No. 2 did not file an appeal against the sentence imposed on her. The appellant filed the present appeal complaining inter alia that the sentence imposed on her is excesive that her personal circumstances were not properly taken into consideration by the 196 ^5 2 C.L.R. Marcov.Republic Lorie J. trialCourt,andaboveallthatshewaspunished withthesameterm of imprisonment ex-accused 2 was punished; on this latter issue learned counsel for the appellant emphasized the fact thathad it not been for the information furnished by the. appellant, her 5 accomplice in Cyprus, ex-accused No.2,would have never been broughttojustice.Learned counselfortheappellantelaborated at length ondisparityofsentence citinginthisconnection thecaseof Azinas& Another v.ThePolice
(1981)2C.L.R. 9atpp. 138442, and invited ustoreduce thetermofimprisonment imposed onhis 10 client. Learned counselappearingforthe Republicinhisable address pointed out that there wasno failure onthe part ofthetrial Court to individualise sentence to the extent warranted in the circumstances, andstressingtheprevalence ofthe offences ofthis 15 naturenowadays andtheneed ofmeetingthem sternly,invited us to uphold thesentence ofthe trial Court. Before going intothe meritsof thisappeal I find itnecessary to repeat thatour taskon appeal istoreviewthesentence and notto assessit;theassessment ofthesentence istheprovinceofthetrial 20 Court (Antoniades v. ThePolice
(1983)2C.L.R. 21 atp.23). Iam not satisfied that the sentence isexcessive in view of the psychological problems ofthe appellant;theseproblems together with allother factors relevant tothe person of the appellant were duly taken into account by the trial Court who did not fail to 25 individualise sentence to the extent warranted in the circumstances. On the other hand offences of this nature should be faced sternly by Courts; and I am in full agreement with my brother JudgeStylianideswhostatedinSultan v.Republic
(1983)2C.L.R. 30 121atp. 124: 35 «The Courts of this Country have to impose severe sentences of imprisonment to stamp out the social evil of narcotics for the protection not onlyof people of Cyprus but of the people all over the world, as this offence is an international one » And I do not hesitate saying that the sentence under consideration viewed from this angle is not excessive at all;it is rather on the lenient side, inparticular ifwebear inmind that the narcotic inquestion isheroin. 197 Loris J. Marco v. Republic
(1987)Obviously beanng inmindtheabove, itseems thatthe learned Judges of the tnal Court lost sight of another important factor, notably dispanty of sentence, which renders the sentence under consideration, wrong inpnnciple and calls for our intervention Ihave used the term dispanty of sentence m thesense that«the 5 sentencers (in this case) in imposing the same sentence have ignored factors which warrant a differential in favour of the appellant (vide Pnnciplesof Sentencing by DA Thomas2nd ed Ρ 71) And in the case under consideration the factor which warrants 10 differentiation between the appellant and Ex-accused 2 is the immediate confession of the appellant and above all the simultaneous disclosure of her accomplice in Cyprus (ex-accused 2) who was arrested and brought to justice only on account of appellant's readiness to disclose her It is transparent from the 15 record that ex-accused 2 brought with her the narcotics in question, from Lebanon to Cyprus on 20 6 87 without having been detectedby thepolice,on thesame day she delivered tothe appellant the quantity of the said narcotics at 'Kallithea' Hotelin Lamaca -room No 1 -,where she was staying, and she was not 20 detected either, and itwas only after theappellant confessed and gave information to the Police leading the police at her own request to 'Kallithea1 Hotel that ex-accused 2 was arrested and eventually brought to justice Undoubtedly such a conducton behalf of the appellant, which 25 exposed hertotremendousnsks from ruthlesstradersof narcotics, is a factor which warrants deferential by the sentencer in favour of the appellant, a deferential which is well settled by our case Law Thus in the case of Georghios Loizou ν TheRepublic
(1971)2 30 C LR 196, a case of narcoticdrugs, the learned Presidentof this Court dehvenng the unanimousjudgment of the Courtof Appeal, reduced the sentence of the appellant, who provided the police with information as aresult of which hisco-accused were arrested, from 5 to4 years, stating (atρ 199) 35 «We take the view that, in the interest of the effort to fight cnme persons who have committed offences together with others, should be encouraged to help the police to discover their accomplices, and they can be so encouraged by relatively lesssevere than otherwise sentences» 198 ^0 2C.L.R. Marcov. Republic Loris J. TheaboveprinciplewasreiteratedinRahmav.Republic
(1984)2 C.L.R. 363, where the following are stated at p. 367 of the report: 5 10 «Where twoor more offenders are concerned inthe same offence, aproperrelationshipshouldbeestablished between the sentence passed on each offender. A difference in the degree of culpability, or the presence of mitigating factors affecting one offender only, should be reflected in a distinctionbetweentheirsentences.Thefactthatoneaccused has pleaded guilty or given information which hasledto the prosecution ofhisaccomplicesjustifies a differential.» Ourlearned brotherPikisinhistreatise«Sentencing inCyprus» dealing with the subject of «repentance after arrest» states the following atpage28: 15 20 «Itisinthepublicinteresttoencourageoffenders to confess their crimes; naturally, the extention of leniency to them isa practicalrewardintendedtoencourageconfessionsand make the path of surrender not unattractive. Repentance will be moreconvincingifaccompanied bythesurrenderofthetools of the crime ifany, to the police and by the disclosure of the namesof accomplices.» Inthe appeal under consideration the appellant as well as exaccused No.2weresentenced to3 1/2 yearsimprisonment each; thesentencers obviously ignored the factor of repentance shown 25 by the appellant who did not only confess in order to make her position better, butalsogave information which led thepolice to the arrest and prosecution of ex-accused 2 who would otherwise go scot-free. Inthe circumstances Ihold the view that we should intervene 30* and substitute the sentence of the appellant by a less severe sentence compared with the sentence imposed on ex-accused 2. Having given to the matter my best consideration, I have decided that the sentence of appellant should be reduced from 3 1/2 yearsto3years,torun from the dayshe wasfirstarrested i.e. 35 the21stJune 1987,andthatthepresentappealshouldbeallowed accordingly. STYTJANIDES J.: The appellant was prosecuted before the Lamaca Assizes for possession of a controlled drug, Class«A», namely.872 grams of Diamorphirte, known asheroin, without a 199 Stylianidee J. Marcov. Republic
(1987)permit from the Minister of Health, contrary to sections 2, 3, 6
(1)
(2), 30 and 31 of the Narcotic Drugs and Psychotropic SubstancesLaw, 1977{LawNo.29of 1977)asamended byLaw No.67of 1983;and forpossessionofthesame drugwithintent to supplyittoanotherpersoncontrarytosections2,3,6
(1)
(3),30,31 ofthesame Law. 5 Another person, a nurse from Lebanon, wasaccused No.2 in the same case. She was prosecuted for possession of the same drug and with supplying ofsame toanother person -the present appellant. ^ Both accused pleaded guiltytothecounts onthe information. TheAssizeCourt imposed sentence ofthreeanda halfyearsof imprisonment on each one of the accused on the count of possession with intent to supply and supplying, respectively, but no sentence on the .count of possession was passed, as this 15 offence was contained in the other counts, on the basis of the decision ofthisCourtinAlexandrou v. DirectorofCustoms {1985) 2C.L.R.
- Thisappeal isdirected againstthesentence. 20 The facts were set out in the Judgment of my brother Judge LorisandIneed not repeat them. Learned counsel forthe appellantsubmitted that the sentence, in view of the personal circumstances of the appellant, was manifestlyexcessive and stressed thatthepersonal circumstances 25 of the appellant were not duly taken into consideration; and that thetrialCourt didnot do a discount on the fact that the appellant had helped the police in the investigation, detection and prosecution oftheoffences committed byex-accused
- Itiswellsettledthattheassessment ofsentence isprimarilythe 30 provinceofthetrialCourtsandthatthetaskofthisCourtisonlyto reviewit. Theoffences involvingnarcoticdrugsare of grave nature. The fact that the narcoticdrug, involved in this case, was not intended forthepeople oftfu»country, isnota factor thatcan be 35 takenintoconsideration. InSu/iani//2epu6/ic(l983)2CL.R. 121,itwassaidatp. 124:- 200 2 C.L.R. 5 Marcov.Republic Stytonldes J- «The Courts of this country have to impose severe sentences of imprisonment to stamp out the social evil of narcotics for the protection not only of the people of Cyprus but of the people all over the world, as this offence is an international one. The Supreme Court time and again stressed that offences involving narcotic drugs have to be faced sternly by the Courts. The possession, trafficking and dealing with narcotics is a social evil against which an international compaign isbeing waged.» 10 Having regard tothe gravity and the prevalence of the offence and thepersonal circumstancesoftheappellant, which incasesof narcotics, though they cannot be overlooked, they are only in general a rather marginal factor, the sentence of three and a half years isnot excessive. 15 The Courts in imposing sentence have to take account, however, ofthe factthat theoffender hasgiveninformation tothe police in connection with the investigation on prosecution of offences committed byother persons. Whereanoffender whohascommitted graveoffences discloses 20 to the police information of value in the investigation of grave offences committed byothers,orthe involvement of othersinthe same offences, the sentencer may give credit to the offender by discounting thesentence toasubstantial degree:buttheextentof the discount is a matter to be decided in relation to the 25 circumstances of aparticular case. The organized society has an interest in the prevention, detection andprosecution of crime. 30 35 InR. v.Lowe [1977]66Cr.App.R. 122, RoskillL.J. said:«Unless credit is given in such cases there is no encouragement for others to come forward and give information of invaluableassistance tosociety and the police which enables these criminals —and these crimesare alltoo prevalent.... — to be brought to book. Those are the considerations thisCourt hastohave in mind.» And further down:«For those matters we thing the appellant is entitled to greater credit than that which the learned judge allowed, much aswerespectthereasonsthelearnedjudgegaveforthe sentence he passed. 201 Styfianldes <J. Marcov.Republic
(1987)Inthosecircumstancesandbearing inmindthesentences passed incomparablecaseswethinkjusticewillbedonein thiscaseifwereducethesentencepassed.» Sentenceoftenyearswasreducedtoatotaloffiveyears. InR. v.DaviesandGorman [1978]68Cr.App.R.319,Lord WidgeryC.J.,said:-* 5 «It is already established in recent authority, and more especiallyinthecaseofLoweamongstotherthings,thatitis propertoallowasubstantialdiscountinseriouscrimesofthis kind where one of those charged and found guilty has 10 rendered significant assistancetothepolice inthecourseof their inquiries.Of course thisdoesnot apply toallcrime.It doesnotapplytominorcrime. But, as has been pointed out inLowe, public policy does 15 requirethatcriminalswhoarepreparedtorumoverandassist thepoliceoughttobeencouragedinthatregard.» In Rahmav.Republic
(1984)2C.L.R. 363,at p.367 itwas said:«Wheretwoormoreoffenders areconcerned inthesame 20 offence, aproperrelationshipshouldbeestablishedbetween the sentence passed on each offender. Adifference in the degree of culpability, or the presence of mitigating factors affecting one offender only, should be reflected in a distinctionbetweentheirsentences.Thefactthatoneaccused 25 haspleaded guiltyorgiveninformation whichhasledtothe prosecutionofhisaccomplicesjustifiesa differential». Offenders whohave committed offences together with others should be encouraged to help the police to discover their accomplices.Theycanbesoencouragedbyrelativelylesssevere 30 that other ones' sentences. This is conducive to the effort to combatcrime,especiallysothecrimeinvolvingnarcotics. InGeorghiosLoizouv.77ieRepublic
(1971)2C.L.R.196,the sentenceoftheappellantwasreducedfromfivetofouryears,on the ground that the appellant provided the police with 35 infomnation,asaresultofwhichhisco-accusedwasarrested. InDavies and Gorman case(supra),Gorman had received a sentence of nineyearsand itwasargued on hisbehalf thatthe 202 2 C.L.R. Marco v.Republic Stylianide* J . sentence of Davies, who received ten years by the first instan* Court, should not be reduced for consideration of assisting the police in order to provide Davieswith the substantial discount,if theresultisgoingtobetoreducethesentenceonDavies,tobelow 5 thatpassed on Gorman. LordWidgery, C.J. said the following:- 10 15 «We have considered this argument and we reject it. It seemstoustheonlylogicalwaytoapproach thismatter is,as I have said, to assess all the sentences as they would be if treated individually.Then, ifasaresultone finds thatcriminal A, who had the heavier sentence than criminal B,rums out withalowersentencebyreasonoftheadjustment forassisting the police,sobeit.Wedo notseeanyotherwayffiwhichthe matter could be more fairly disposed of than by a simple approach ofthat kind.» · The sentence of Davies was reduced to seven years and the sentence of Gorman was upheld. Inthepresent case accused No.2,whobrought from Lebanon theprohibited heroin,wasarrestedand broughttojusticeonlyon account of appellant's information and assistance given to the 20 police.Thecrimeofex-accused2wasdetectedonthe information given by her, who took pains to accompany the police round Lamaca town. Inthisparticular casethisappellant did not onlydiscloseto the policeinformation, butshetookpartintheoperation, togoround 25 Lamaca to the hotel where the transaction of the handing over took place, to give further information, and, due to all the assistance given by this appellant to the police, the woman from Lebanonwasfound andfinallyprosecuted. Haditnotbeenforthe assistancerendered bythisappellant·tothepoliceauthorities, the person whodidimportthisnarcoticuVCyprusfortransportation to 30 thewest,wouldnothavebeendetectedandwouldnothave been prosecuted. ThetrialCourt, obviously,disregarded thefactor of repentance shown bytheappellantandtheinformation and helpthatshe has given tothepolice, as aforesaid. 35 I am of the opinion that this Court should Interfere, as the appellant isentitled to credit, and thai/justice willbe done Inthis case, if we reduce the* sentence passedk by six months, to three years to run from the date of the appellant's arrest, 21st June, 1987. 203 Marcov. Republic A. LOIZOU J.: In the result the appeal isallowed by majority and thesentence ontheappellant isreducedtoone ofthree years to run from the date of her arrest. Appeal allowed by majority. Sentence reduced. 204
(1987)