2C.L.H. 1986December19 [A L01Z0U. LORIS,PIKIS, JJ ] IACOVOS ANTONIOU, Appellant, ν THE POLICE, Respondents (Criminal Appeal No 5 10 15 20 4820) Sentence—Causing death by wantofprecaution—The CnminalCode Cap 154, section 210—Accident not due to momentary inattention, but to reckless dnving—Three months impnsonment and six month s disqualification from holdingand/or obtaininga dnvinglicence—Orderfor the payment of £25 • costs of the prosecution—Appellant a poor man and a breadwinnerof his family,ιe his wifeand3 minor children—In the circumstances theaforesaid sentence was affirmed, but the orderof costssetaside Atabout 6 05 ρ m of the 18 11 85 ΡW 3who was dnving his motor-cycle along Makanos II! Avenue at Κ Lakatamia, having as a pillion ndera young man of 19 years of age, stopped at the junction of the said avenue with Anexartisias Street,givingpnontytooncoming vehicles, as hewas intending totumnght Theappellant,who was dnving hismotorvehicle along thesame direction as ΡW 3, knocked attherear of the stationary motor-cycle and,as a result.-the pillion nder was senously injured and eventually died Thescene of theaccidentwas amplylitatthematenaltime Thelightsofthe appellant's vehicle were capable toilluminate a distance of 67 feet ahead in dippedposition Themotor-cylcehadnorearlights Thecollision was violent, the resultant position of the car was 49 feet after the pointof impact and no traces of brake marks were found Theappellant stated tothe police thathe did notnoticethemotor-cycle untilheheard thebang of the collision ThetnalJudge sentenced theappellant for the offence of causing death by want pf precaution Contrary to s 210 of the Criminal Code to 3 months' impnsonment. disqualification from holding and/or obtaining a dnving licenceforsixmonthsandordered himtopay £25 -costsoftheprosecution 25 30 As a result the appellant, a poor man and the breadwinner of his family, consisting of hiswifeandthreeminorchildren oneofwhom adaughteraged 13 is mentally retarded and in need of extra care filed the present appeal against sentence Held U)Inview of the lighting of thescene of theaccident the adequate lighting of appellant's vehicle his statement to the police and the real 39 Antoniouv. Police
(1987)evidence, the inference that the collision was not due to a momentary inattention or miscalculation, but toreckless dnving, as the tnalJudge held, was unavoidable
(2)This Court feels sympathy for the suffenng of appellant's family, but cannot overlook his reckless dnving and selfish disregard for the safety of other road users 5 {3) The order as to costs is rather unusual inthe circumstances and would be set aside Sentence of impnsonment and disqualification affirmed Orderfor costssetaside 10 Casesreferredto Charalambousν ThePolice(\98β) 2 C LR 128. Attorney-General ν Stavrouand Others,1962 C LR274, Chnstofakis ν ThePolice
(1963)1C LR 33 15 Nicolaouv TheRepublic
(1966)2 C L R 60 Appeal against sentence. Appeal against sentence by Iacovos Antoniou who was convicted on the 8th December, 1986 at the Distnct Court of Nicosia (CnminalCase No 26332/86) ononecountoftheoffence 20 of causing deathby want of precautioncontrarytosection 210 of the Cnminal Code Cap 154 and was sentenced by E. Papadopoulou {Mrs) Ag.D J. tothreemonths'imprisonmentand was further disqualified from holding orobtaining adnving licence for a penod of six months; he was further ordered to pay £25 - 25 costs of prosecution Ρ Polyviou with C Pambalhs, for the appellant A Μ Angelides, Senior Counsel of the Republic, for the respondents A LOIZOU J The judgment of the Court will be given by 30 Lons,J LOR1S J The present appeal is directed against the sentence passed on theappellant by aJudge of theDistnctCourtof Nicosia (Mrs E. Papadopoulou, Ag DJ ) in Nicosia Cnminal Case No 40 2C.L-R- Antoniouv.Police LoriaJ. 26332/86, upon his plea of guilty to a'single count of causing death by want of precaution contrary to s.210 of the Criminal Code; the appellant was sentenced to three months' imprisonment and was further disqualified from holding and/or 5 obtainingadrivinglicenceforaperiod ofsixmonthsfromthedate of sentence; the sentence alsoincludes an orderfor the payment of£25.-costsofthe prosecution. Thesalientfactsofthecaseunderappealarebrieflyasfollows: Atabout 6.05p.m. ofthe 18thNovember 1985(thesun setsat 10 4.40 p.m.) P.W.3 who was driving motor cycle under Regn. Np. P.M. 681 along Makarios IIIAvenue at K.Lakatamia having asa pillionriderthe 19year-oldvictimofthisaccident, namelyPetros Gavriel, stopped hissaid motor-cycle at thejunction of Makarios III avenue and Anexartissias street giving priority to oncoming 15 vehicles,ashewasintendingtorumright.Theappellantwhowas drivingatthematerialtimemotorlightgoodsvehicleunderRegn. No. MX 272 along Makarios III Avenue following the same direction asthemotor-cyclist,knockedattherearofthestationary motor-cycle and as a result both the driver of the motor-cycle as 20 well as the pillion rider were flung off the motorcycle on the asphalt and were injured. The pillion rider died two dayslater in Hospital as a result of the injuries he received in the aforesaid accident. The appellant in hisstatement to-thepolice mentioned that he 25 did not notice the motor-cycle until he heard the bang of the" collision. The scene of the accident wasamply litatthe material time by two fluorescent lamps fixed on poles which lay 163 feet away from each other. ™ The lightsof appellant's vehicle,tested bypolice, proved to be capable of illuminating a distance of 67 feet ahead in a dipped position. Itisquite clearto usthat inspite ofthe fact thatthe motor-cycle -ofP.W.3hadnorearlights,itoughttohavebeeneasilydiscernible 35 bytheappellant, takingintoconsideration thelightsof appellant's vehicle on theone hand and the amplestreet lightingatthescene of the accident on the other. 41 LorisJ. Antoniouv. Police
(1987)The learned trial Judge in her carefully considered judgment •held that the accident was due to the reckless driving of the appellant andhisselfish disregardofthesafety ofotherroadusers, and not toa momentary inattentiveness or miscalculation. Having carefully gone through the record weare inagreement 5 with her. Such an inference isunavoidable inview ofthe lighting of the scene of the accident, the adequate lightingof appellant's vehicle, the realevidenceplaced before thetrialCourt-which we had the opportunity to examine - and the statement of the appellant to the police to the effect that he did not notice the 10 motor-cycle untilhe heard the bang of the collision. It is apparent from the sketch produced that the speed of appellant'svehiclemusthavebeen unreasonably highatthetime and the collision on the stationary motor-cycle very violent in view of the fact that the motor-cycle was dragged forward at 15 considerable distance,away from the point of impact leaving scratches on the asphalt up to its resultant position, whilst it is obviousthat the appellant didnot apply brakes intime-infact no traces of break marks whatever, were found - and the resultant position of hiscaris49 feet after the point of impact. 20 The learnedtrialJudge after directinghermindtotheprinciples of sentencing applying in cases of this nature and examining the facts and circumstances of this case, as well as the circumstances befitting theappellant, whoisaprofessional driveremployed with a building company andthebreadwinner ofafamily consisting of 25 his wife and three minor children, passed on the appellant a sentence of three months imprisonment disqualifying him at the same time from holding and/or obtaining a driving licence for a period of sixmonths from thedate ofsentence;the sentence also includes an/order for the payment of £ 2 5 - costs of the 30 prosecution. The main complaint in this appeal is the sentence of imprisonment. The learned leading counsel appearing for the appellant argued forcefully against thesentence of imprisonment relyingmainlyonthepersonalcircumstancesoftheappellantwho .35 isapoormanandthebreadwinnerofafamilyconsistingofhiswife and three minor children aged 15, 13 and 8 years respectively laying stress on the fact that appellant's daughter aged 13 is mentally retarded and inneed ofextra care. 42 ί{C.L.R. Antoniou v. Police LorteJ. We feel sympathy for the suffering of appellant's family but at the same timewe cannotoverlook thatthereckless driving of the appellantandhisselfish disregard forthesafety of otherroad users resulted in the loss of life of a young man aged only 19. Inthis 5 respect Ifully endorse what was stated in theAppeal of Socratis Charalambousv. ThePolice, onasimilar occasion by mybrother Judge Pikis: (Cr.Appeal 4729 -judgment delivered on29.4.86 still unreported)*. 10 «It is a tragic case that reminds of the fatal consequences negligent driving canproduce,aswellasthedutyoftheCourt to help stem thissocial evil more so inview of themounting number of fatal accidents». In the circumstances we have decided that we should not interfere either with the sentence of imprisonment or with the 15 disqualification orderalthough we holdtheviewthatthesentence passed isratheron thelenient side. _ Thesentencehowever includesalsoanorderforthepaymentof £25.-costsoftheprosecution.We holdtheviewthatsuchanorder is ratherunusual inthecircumstances (A.G, v.Georghios Stavrou & others, 1962 C.L.R. 274 -Costas CbristouChristofakisv. The Police
(1963)1 C.L.R.33 - Lambros Costa Nicolaou v. The Republic
(1966)2 C.L.R. 60. 25 We areunanimouslyof theopinionthattothisextenttHeappeal should be allowed and the order for the payment of costs be set aside. 20 In the result the sentence of imprisonment and the disqualification orderare hereby affirmed. The order for thepayment of costs is hereby discharged. Appeal partlyallowed. Orderfor costsdischarged. 30 •Reportedm
(1986)2CLR. 128 43