2C.LR. 1988September 15 (MALACHTOS.PIKIS,PAPADOPOULOS.JJ.) YIANGOSEVRIPIDOU, Appellant, v. THEPOLICE, Respondents. (CriminalAppealNo. 5023). Sentence—Carelessdriving—Appellantaged23withcleanrecord, in need of a licence—Disqualification for 12 months—His carelessnesswasminimal—Disqualificationdischarged. 5 Roadtraffic—TheRuleoftheroad—TheRuleoftheRoadLaw, Cap. 334,section2 —Whenadriverisobligedtokeep totheleft. Sentence—Sentencingprinciples—Thesentencemustbe correlated tothefactsandfitthepersonoftheoffender. 10 15 Appellantwasdrivinghismotorvehicleatnightonanunlitroadat Ayios Dhometios, 20 feet wide. The appellant proceeded in the middle of the road when the complainant attempted to crossthe streetwhenonlyashortdistanceofabout30feetseparatedhimfrom the oncoming vehicle. Ascould be predicted, a collision occurred thatfortunatelyleftthecomplainantwithnonetooseriousinjuries. Theappellant pleaded guiltytoachargeof negligentdriving.In addition to£40.·fine,thetrialJudgeorderedhisdisqualification for 12months. Hencethisappeal. 20 Held,allowingtheappeal:
(1)Thecollisionoccurred2ft.fromthe centre of the road. In accordance with s.2. Cap. 334, a driver is obliged to keep to the left side only when he encounters other vehiclesontheroad;otherwise,hemaymakereasonableuseofthe roadsuchaswouldenablehimtoavoidreasonablyforeseeable risks thatmaybeencounteredonhisway.
(2)In the absence of evidence that appellant wasgoing at an 135 Evripidou v. Police
(1988)excessivespeed carelessnesswasminimal.
(3)Theappellantis23yearsold,withnopreviousconviction.
(4)Sentence must, in every case, be correlated to the facts founding thechargeandfittheperson ofthe offender Appeal allowed. Order for 5 disqualificationdischarged. Casesreferredto: Constantinidesv.ThePolice
(1988)2C.L.R. 18; Zachariadesv. ThePolice
(1968)2C.L.R. 121; Louroutziatisv.TheRepublic
(1983)2C.L.R.125. 10 Appealagainst sentence. Appeal against sentence by Yiangos Evripidou who was convicted on the 20th July, 1988 at the District Court of Nicosia (Criminal Case No. 14383/88) on one count of the offence of carelessdrivingcontrarytosections8and 19oftheMotorVehicles 15 and Road Traffic Law, 1972(LawNo. 86/72) and was sentenced by Michaelides, D.J. to pay £40.- fine and was in addition disqualified from holding or obtaining a driving licence for a period of twelve months. N. Panayiotou, for the appellant. 20 A. M. Angelides, Senior Counsel of the Republic, for the respondents. MALACHTOS J.: The judgment of the Court willbe delivered byPikis,J. PIKIS J.: Yiangos Evripidou, the appellant, appeals against a 25 sentence of disqualification of 12 months imposed by the District CourtofNicosia,inadditiontoafineof£40.--,uponconviction on a charge of careless driving (contrary to ss.8 and 19of the Motor Vehicles and Road Transport Law -86/72). Inthe submission of counsel for the appellant the order of disqualification was 30 unwarranted tothe extent ofrenderingthe sentence initsentirety excessive. On that account we were invited toset aside the order ofdisqualification, an intervention necessary inorder to reconcile punishment withthe factsofthecaseandthecircumstancesofthe appellant. 35 136 2 C.L.R. Evripidou v. Police Pilris •'. The trial Court took the view that the circumstances of the accident wereofacomplexion thatdisclosed gravenegligenceon the part of the appellant; sufficiently serious to warrant disqualification ofthelengthof 12monthsnotwithstandingthefact 5 that he was a first offender and had real need for his driving licence. Counsel for the Republic, too, was of opinion that sentence is excessive and likewise submitted that it should be discharged orreduced toamuch shorterperiod. Inthe submission of both counsel the sentence was out of context with the facts of . io t n e c a s e t n a t revealedonlyaborder-linecaseofnegligentdriving. Examination of the undisputed facts of the case supports the submission of counsel that the trial Court misconceived the seriousness of the conduct of the appellant, an error that led him toadopt awrong measure ofpunishment.Theaccident leading to 15 this prosocution occurred inthe following circumstances: Appellant wasdriving hismotorvehicleatnightonan unlit road atAyiosDhometios,20feet wide.The appellant proceeded inthe middle of the road when the complainant attempted to cross the street when only a short distance of about 30 feet separated him 20 from the oncoming vehicle. As could be predicted, a collision occurred that fortunately left the complainant with none too seriousinjuries (the most seriousbeing concussion). 25 30 35 40 So far as we may gather from the reasoning of thejudgment, a seriousviewwastaken ofthe conduct ofthe appellant becauseof the fact that the point of impact was on the righthand side of the road judged from the direction of the appellant. In fact, the collision occurred 2ft. from thecentreoftheroad.Seemingly, the : rial Court laboured under the impression that it is the duty of a motorist to keep at all times to the left side of the road, independently and irrespective of the absence of other traffic on the road. Thisisan incorrect viewof the lawboth byreference to the statutory rule of the road, laid down in the Rule of the Road Law-Cap.334,andanalysisofthedutiesofadrivertootherusers of the road. Inaccordance with s.2, Cap. 334, a driver isobliged tokeep tothe left sideonlywhen he encountersothervehicles on theroad;otherwise,hemaymakereasonableuseoftheroadsuch as would enable him to avoid reasonably foreseeable risks that may be encountered on hisway. Therefore, appellant could not have been blamed for driving hisvehicle along the middle of the road in the absence of other traffic on the street. The principal. cause of the accident was,no doubt, theinadvertent action of the 137 PlkisJ. Evripidou v. Police
(1988)complainant to cross the road at a time when it was evidently dangerous sotodo, exposing thereby hissafety toevident risks. The appeal issolely directed against sentence. Therefore, we are not concerned to review the propriety of his conviction. He pleaded guilty before the trial Court. Our task is confined to 5 assessingthegravityofhisnegligenceforpurposesofsentence.In the absence of evidence that appellant wasgoing atan excessive speed (the only evidence on the subject was his evidence suggesting that he was going at a speed of 25 - 30 m.p.h.), we cannot but infer that his carelessness was minimal. There was 10 hardly opportunity on hispart to take avoiding action, given the short distance that separated hisvehicle from the pedestrian; nor could hebe blamed fornotanticipatingthefollyofthe pedestrian. The duty to take precautions is correlated and must be proportionate totherisksthatare reasonably foreseeable. 15 The appellant is23 years old, with no previous conviction. He obtained his driving licence two years prior to the accident. Moreover, he has reasonable need of the use of hiscar to enable himtodriveitwhen off work(heisawaiteratPaphos)tohishome atNicosia.Furthermore,thecomplainantwascompensated forhis 20 injuries. The CourtofAppeal isdisinclined tointerfere with sentence on the ground that it is manifestly excessive, unless the element of excess is glaring and as such objectively identifiable. This unwillingness we reiterated recently in Constantinides v. Police* 25 in the context of dismissal of an appeal against an order for disqualification on a charge of carelessdriving. Disqualification, it must be acknowledged, isin a proper case, an apt form of punishment for negligent driving, asthe Supreme Courtaffirmed in CostasZachariadesv.Police.** InLouroutziatisv. 30 Republic*** it was emphasized that driving a motor vehicle isnot an inherentrightbut one exercised on licence, a licence that may be revoked in the face of abuse of the right. And the Court expressed concern about the mounting number of accidents and the human and material waste associated therewith that make 35 •
(1988)2C.L.R. 18. ·*
(1968)2C.L.R. 121.123. ·**
(1983)2C.L.R. 125, 128. 138 2 C.L.R. Evripidou v.Police Plkis J . recourse to disqualification; as stated, «a measure necessary for theeffective protectionofsociety.»Nonetheless,sentencemust,in every case,be correlated to the facts founding the charge and fit the person ofthe offender. 5 The facts of the case disclose, as mentioned earlier, minimal carelessness on the part of the appellant. Thisfact, coupled with the clean record of appellant, ruled out disqualification as a measure of punishment. Consequently, the order of disqualification willbe discharged. 10 The appeal isallowed.The order of disqualification isset aside and thesentence imposed bythetrialCourtvaried accordingly. Appeal allowed. 139