clr/1988/1988_2_1.pdf

(1988)Asianv.Police madetorun concurrentlywithanearliersentenceofimprisonment imposed on appellant foranotheroffence—Sentence, far from beingmanifestlyexcessive, isonthelenientside. 1hefacts ofthiscasesufficiently appearfrom thejudgmentofthe Court. 5 Appealdismissed. Casesreferredto: Koukosv. Police

(1986)2C.L.R. 1; GeorghiouandOthersv. Republic

(1987)2C.L.R.109; Marcov. Republic

(1987)2C.L.R.188. 10 Appeal against sentence. Appealagainstsentence byAliAsianwhowasconvicted on the 27th November, 1987 by the District Court of Nicosia {Criminal Case No. 2501/87) on one count of the offence of Criminal trespass contrary to sections 280 and 20 of the Criminal Code, 15 Cap. 154, on one count of theoffence of drunkeness contrary to section 94

(1)oftheCriminalCode,Cap. 154and onone countof the offence of disturbance contrary to section 95 of the Criminal Code, Cap. 154 and was sentenced by Kallis, D. J. to three months' imprisonment on thefirstcount and was further bound 20 overinthesumof£500.-foraperiodoftwoyearstokeepthelaw and be of good behaviour on theother twocounts. A. Christohdou (Miss), for the appellant. A. M.Angelides, Senior Counsel of the Republic, for the respondent. A. LOIZOU J. gave the following judgment of the Court. The appellant was jointly charged with Djelil Sousamis, who hereinafter willbe referred toasex-accused 1,oftheoffences of, criminal trespass, contrary to sections280and 20 of the Criminal Code,Cap. 154,drunkenness and disturbance, contrary toss.94 30 and 95oftheCoderespectively.Theyboth pleadedguiltyand the facts related to the Court in support of the offences in question werebriefly these: On the 29th December, 1986, at about 5:45 p.m. whilst the complainant, who resides in Pentadaktylos Street next to her 35 coffee-shop, was in her house,she noticed the appellant and exaccused 1, pushing violently the door and entering therein. Ex accused 1, threatened her with stabbing,'but she called out for help. Her husband with a friend of his, whowere inanother part 2 25 2 C.L.R. Asian v.Police A. Lolzou J. of the house, came out, gotthe accused and ex-accused 1outof the house and notified the Police. The incident of disturbance relatestotheirconduct after the commission of criminal trespass. The Police arrived promptly and arrested theappellant and his 5 accomplice and eventually the trial Court had to consider the appropriate sentence tobe imposed on them. The appellant who is single and has no other relatives and comesfrom Turkey,istwently-twoyearsofageand arrivedin the occupied part of Cyprus some two years ago. After, however, 10 spendingsometimetherehecametothefree partoftheRepublic and hehasbeen workingasabuilder.HeresidesatYmittosStreet ina rented room. Thesentence imposed on the appellant and ex-accused 1,was one of three months' imprisonment on the first count and 11 bound over in the'sum of £500.- for a period of two years to keepthe Lawandbe ofgoodbehaviourontheremainingcounts. The learned trial Judge in his meticulous approach to the case further noted that both accused on the 23rd September, 1987, following a hearing after a plea of not guilty were found guiltyof 20 other offences and sentenced to imprisonment. He further noted thattheyhadbeen asked onthatdaybyprosecutionwhetherthey were prepared to plead guiltyto the present casesothat itwould be taken into consideration but their stand was negative, apparently, as he observed, on account of their having no legal 25 advice For that reason their sentence of imprisonment in the present casewasmade to run from thatdate,that is,concurrently withthesentenceofimpnsonmenttheywereandstillareserving. Learned counsel for the appellant in her address in mitigation raised three points: The first that the sentence imposed on the 30 appellantwasmanifestly excessive;thesecondthattherehasbeen disparity ofsentence withhisco-accused, because ofthe different degree of their complicity inthe offence and that there had been no individualization. Considering the totality of the circumstances before uswe find 35 that not only it was not manifestly excessive but the sentence imposed on theappellant wason the lenientsideand infact very fairlyapproached bythe learned trialJudge inthe circumstances. Disparity of sentence does not exist as there is no such grave difference in the degree of complicity between the two culprits, 40 and weneed notreallyelaborate onthepoint.Suffice ittosaythat 3 A. LolzouJ. Asian v. Police

(1988)thequestionofdisparityandtheprinciplesgoverningitweredealt bythisCourtinnumerouscases.(SeeKoukosv.Police

(1986)2 C.L.R. l;Ceorghiouand Othersv. Republic

(1987)2 C.L.R. 109,andmorerecentlyinMarcov.Republic

(1987)2C.L.R. 188;. Asregardsindividualization certainlytheleamed trialJudgewent 5 beyond hiswaytodo sobyeven creditingtheaccused withthe lack of legal advice in their refusal to take advantage of the opportunity to have this case taken into consideration when passingsentenceinthecaseinwhichtheyhadalreadybeenfound guiltyandsentenced bytheCourt. 10 Foralltheabovereasonstheappealisdismissed. Appealdismissed. 4