(1988)1988September 27 (MALACHTOS PIKIS,PAPADOPOULOS,JJ ) NIKIFILIMONIDES, Appellant, v. IMPROVEMENTBOARDOFSTROVOLOS, Respondents. (CriminalAppeal No. 4989). Sentence — Vanahon, on review of by Court that imposed it— Prohibited, ifjudgment has been signed (The Criminal Procedure Law, Cap. 155, section 113
(2)) —Otherwise, there existspower to do so, incase ofanAssize Court,before theend ofasession, andin caseofother inferiorcourts,before theend ofsitting—Such power 5 should besparinglyexercised —Convictionforsufferingerectionof abuildingwithoutapermitandsufferinguseofsuchbuilding without acertificateofapproval —Imposition ofafineandorderforcosts — Sentence vaned on another day by issuinga demolition order— Quashed Judgments and orders—Rectification of omission —Principles applicable —Omission toissueademolition orderupon conviction forsuffenng the erection ofabuildingwithoutapermit andsuffering itsuse without acertificateofapproval —Itcannot berectified. The appellant was found guilty for suffering the erection of a 15 building without a permit, and suffenng the use of the building without a certificate of approval. The Judge proceeded and passed a sentence of a fine and awarded £60.-costs infavour ofthe prosecution. Before leaving the Courtroom counsel wasrecalled bythe Court 2 0 andaskedtoraisehersubmissions, ifany,concerningthe application for a demolition order. Counsel declined the invitation and asserted that the sentencing processhad cometo an end. When further similarefforts of theJudge failed topersuade her to address the Court on the matter, the Judge directed the 2 5 140 10 2 C.L.R. FUlmonldesv.Impr.Board Strovolos resummoning of the appellant on another day On such a day the Judge issued a demolitionorder Hence thisappeal 5 10 15 Held,allowingthe appeal (I)An order may be readily rectified if it aims to remedy an omission of a characterthatwould have been, inthewords ofJudge RubinmR ν Michael*«supnhed asamatterof course without further argument»
(2)Atcommonlaw power was acknowledged totheAssizeCourt and infenor Courts to vary a sertence after pronouncement, provided the power was exercised in the case of the AssizeCourt before theend of thesession and,inthecase of otherCourts, before the end of thesitting of theCourt
(3)The power of a Courtis further limited by the provisions of s 113
(2)prohibitingavanationorreview of thejudgmentoftheCourt after itis signed
(4)Moreover,thepower tovary asentence,limitedasitis,mustbe very spanngly exercised Appeal allowed Casesreferredto 20 R ν Menocal (1979] 2 All ΕR 510, R ν Corr[1970]Cr LR 238, R ν Maylam (27 2 1970, unreported), R ν Newsome [1970] 3 All ΕR 455, R ν Michael [1976] 1All ΕR 629, 25 Golden Sea-Side Estate Co Ltd ν The Municipal Corporation of Famagusta
(1973)2 C LR 58, Salamis HoldingsLtd ν Municipality of Famagusta
(1973)2 C L R 239 Appeal against sentence. 30 Appeal against sentenceby NikiFihmonideswho was convicted on the 21st Apnl, 1988 at the DistnctCourt of Nicosia (Cnminal Case No 11509/86) on one count of the offence of suffenng the •11976] 1AllΕR 629 632 141 Flltmonldes v. Impr. Board Strovolos
(1988)erection of a building without a permit contrary to sections 3(l)(b) and 20(l)(a)and 3(a)oftheStreetsand BuildingsRegulation Law, Cap. 96and on one count of the offence of suffering the use of a buildingwithoutacertificate ofapprovalcontrarytosections10
(1)and 20(l)(a) and
(3)(a)ofthe above Lawand wassentenced byE. 5 Papadopoulou (Mrs.),Ag. D.J. to pay £10.- fine in count 1,£5.fine on count 2 and wasfurther ordered todemolish the premises within two months unless inthe meantime a permit isobtained. £. Vrahimi(Mrs.), forthe appellant. P.Lysandrou, for therespondents. 10 Cur.adv. vult. MALACHTOS J.: Thejudgment of the Court willbe delivered by Pikis, J. PIKIS J.: The power, if any, of a Court of summary criminal jurisdiction to vary or review a sentence after itispronounced in 15 open court, isthe centralissue inthisappeal. The appellant was found guiltyon twocharges, namely(a)suffering the erection of abuildingwithout apermit, and (b) suffering the use of the building without a certificate of approval. Before the Court passed sentence, counsel for the prosecution madeaformal application fortheissueofademolitionorder.Also, heclaimed£132.—prosecution costs.Forherpart,counselforthe defendant confined her addresstothe question ofcosts, stressing that only once was the case adjourned owing to the non 25 appearance of the accused. The trial Judge then proceeded to pass sentence, drawing attention,asitappearsfrom anoteprecedingjudgment,tothefact that both the appellant and her co-accused (due to come up before the Court on a future date) were likewise responsible for 30 the many adjournments. And for that reason she adjudged the appellant topay, inadditiontomonetarysentencesoftenand five pounds on each count respectively,£60.--costs,notingthat costs form part ofthe sentence.The matter of costsisordinarilythelast question that the Court addresses. Though to all outward 35 appearances thesentencingprocessappeared tohavecometoan end, counsel for the prosecuting authority asked addressing 142 2 C.L.R. Fillmonides v. Impr. Board Strovolos Pllds J . himself to the Court: >ihe order of demolition is issued?» («To διάταγμα κατεδαφίσεως εκδίδεται»;) According to counsel for the appellant the trial Judge made a remark that does not appear on the printed record, to the effect 5 thatthemaking of anorderofdemolitionispresumed.Counsel for the respondents confirmed thatsomething had been said though hisrecollection didnothelphimreproduceexactly whathadbeen said. He gained the impression thatthe remark was to the effect that the question of demolition order had been overlooked. Of 10 course, no application was made to have the record corrected, a course which should have been followed if counsel were minded toinvite ustotakeintoaccountsomething thatdoes notappearon the printed record. It suffices to note that on a subsequent occasion, when the trial Court addressed itself to the question of 15 demolition, it was acknowledged that the matter had been overlooked. 20 25 30 35 40 It is necessary to return to the events that followed in order to define and debate in its proper context, the complaint of the appellant. After the pronouncement of sentence the appellant walked towards the exit of the Court to be followed by her counsel. Before leaving the Court room counsel was recalled by the Court and asked to raise her submissions, if any, concerning the application for a demolition order. Counsel declined the invitationandasserted thatthesentencing process hadcometoan end. Fifteen minutes later, she was called once more before the Court, unaccompanied by the appellant, for the same purpose. She persisted in her stand that the Judge was overstepping the limits of her jurisdiction. Faced with the refusal of counsel to address her on theissueof demolition,she adjourned thecase to 4.4.88, coupled with a request to counsel to notify her client to attend, too.On the adjourned hearing counsel appeared without her client. Once more she submitted thatthe sentencing process had ended and that itwas not open to the Courtto deal with the question of sentence anew. Thereupon, the Court directed that theappellant be re-summonedtoappear on21.4.88. In response tothesummons she appeared before theCourtontheappointed day. In a fairly detailed judgment the Court directed itself to the principles affecting the exercise of the Court's discretion to make a demolition order, to conclude that a demolition order was warranted by the facts of the case; and in exercise of her 143 Plkis J. Filimonides v. Impr. Board Strovolos
(1988)discretionary powers she ordered the appellant to demolish the premises. Counsel forthe appellant submitted that the order of demolition amounted, in essence, to the imposition ofa second sentence. Counsel forthe respondents acknowledged that the sentencing process appeared tohave been completed with the 5 imposition of the fine and the order forcosts. Counsel forthe appellant invited us toset aside theorderfor demolitionas wholly irregular. We took time to consider the issue forto our knowledge none of the decided cases answers directly the question raised in this 10 appeal. Fortunately,thematteris notfree of authority.The power of criminal courts tovaryasentence after itispronouncedinopen court, was debated bythe House ofLords in R. v. Menocai* At common law power was acknowledged to the Assize Court and inferior Courtstovary asentence after pronouncement, provided 15 thepower was exercised inthe case of theAssizeCourtbefore the endofthe session and, inthe case of otherCourts,before theend of the sitting of the Court. The power toreview sentencewas sparingly exercised and only on the rarest ofoccasions was the power invoked toincrease sentence. Intwo cases, the freedom of 20 the Courttoincrease asentence of imprisonmentby invocation of thispower, was doubted. R.v.Corr**and R. v.Maylam***; though in R. ν Newsome**** the Court ofAppeal upheld the decision of Parker, C.J. tovary a sentence byincreasing a sentence of six months' imprisonment toseven months'imprisonmentinorderto 25 make sentence immediately enforceable. In a moment of momentary aberration the Judge had overlooked the provisions of s.39 ofCriminalJustice Act 1967, thatprovided thata sentence of six months'impnsonmentattracted mandatory suspension. Innone of the cases traced did theCourtreopenthequestion of 30 sentence, asthe trial Judge had done in this case. One isapt to form the impression thattheCourtfelt free toreconsidersentence on asubsequent date notwithstanding theearlier pronouncement of sentence in open Court.An order may be readily rectified ifit aims to remedy an omission ofa characterthatwould Havebeen, 35 in the words ofJudge Rubin in R. v.Michael***** «supplied as a *1197912All E.R. 510. "' 119701 Cr.LR 238 *" (27th February, 1970, unreported) ""1197013 AllΕR.455 *"" [1976Π AllΕR 629.632 144 2 C.L.R. Fillmonides v. Impr. Board Strovolos Pikis J. matterofcourse withoutfurther argument». Evidently,weare not concerned with such a situation. Ademolition order is,asthe Judgedescribed thepunishment,asentenceofadrastic character, involving theexercise ofdiscretionary powers onthepart ofthe 5 Court*. Section 113
(2)of Criminal Procedure Law prohibits thealteration orrevisionofajudgment after itissigned, except for correctingaclerical error. To sumup,a court of summary criminal jurisdiction has no powertovaryorreviewasentenceafter theendofthesittingofthe 10 courtinwhichitispronounced; thepowerisfurther limitedbythe provisions of s.113
(2)prohibiting a variation or review ofthe judgment ofthe court after itissigned. Subject totheabove, there isnopower tovary or reconsider sentence. Moreover, the power tovaryasentence, limited asitis, IE must bevery sparingly exercised. Extention ofthe righttovarya sentence after itispronounced inopen Court would inevitably subvert certainty in the sentencing process, so vital for the sustenance oftherightsofthe accused. Inthis case,thesentence wasvaried after theend ofthe sittingoftheDistrictCourt inwhich 20 itwaspronounced and,forthatreason, itwaswhollyimpermissible. We arenotfaced with therectification of an error butwiththe reconsideration ofsentence after itspronouncement. Therewas noauthoritytoreviewandvarythesentence onadate subsequent tothe date on which itwaspronounced inopen court. 25 Wemust,therefore, setasidetheorderof demolition andweso direct. Appeal allowed. Note: Afterhearingcounsel,therespondentsareadjudged topay £40.- costs. * (See,inter alia,Golden Sea-Side EstateCo.Ltd.v. The MunicipalCorporation of Famagusta
(1973)2 C.LR 58;andSalamis Holdings Limited v. Municipality of Famagusta
(1973)2C.L.R. 239). 145