(1988)1988October 13 (SAW1DES, KOURRIS,BOYADJIS,JJ.) ANDREASANTONIADES, Appellant, v. THEPOLICE, Respondents. (CriminalAppeal No. 5014), Sentence —Indecent assaultonfemale, contrarytosections 151and 35 of the Criminal Code, Cap. 154 —Appellant, a man of 60, and a retiredHeadmaster ofElementaryEducation —Offence committed at school before his retirement on a girlaged 12—Nine months' imprisonment —Neither wrong in principle nor manifestly excessive. 5 The appellant, a man aged 60, was, at the time, serving as Headmaster ofElementaryEducation.Hewasgivingprivate lessons to the complainant, a girl aged 12, inthe house of the latter's aunt. Sometimes, the complainant accompanied the appellant at school 10 for obtaining photocopies ofmaterial helpful to herstudies. Onone ofsuchoccasions,the appellant, havingentered the office of theschoo1with the complainant, closed the windowand the door and started assaulting the complainant by caressing her breasts, buttocks and private parts. The assault continued for half an hour, 15 when it was interrupted by a knock on the door by complainant's friends, who were looking for her. The appellant expressed repentance. He pleaded guilty to the charge. His record is clean. In passing sentence, the trial Court treated the fact, that such anoffence isnot prevalent, asa mitigating 20 factor. Held, dismissing the appeal:
(1)Felekkis v. The Police
(1968)2 C.L.R. 151 cannot be considered as a test of proper sentence in a caseof indecent assaulton afemale.
(2)The trial Judge rightly expressed the opinion, when dealing 2 5 146 2 C.L.R. Antonlades v. Police with a submission by counsel for the accused that the fact that the appellant had been an educationalist for so many years should be taken in his favour that such fact might operate as well adversely upon the appellant calling for a deterrentsentence. 5 10
(3)Though all personal matters pertaining tothe offender should be taken intoconsideration,theyshould notbe allowed tooutweigh . the requirements of properly applying thelaw inthatparticular case. Moreover a sentence must have the effect of indicating in the most practical way the seriousness of the offence and operating as a deterrenttootherpotential offenders. 15
(4)There isnodoubtthatthecircumstancesof thiscase aresuch as tobring thiscase within theframe of serious cases of indecent assault on a female. Such circumstances are the position of the appellant,the age of the girl, the place where the offence was committed, the natureof the assault and itsduration. {5} Itiswith great reluctanceinthiscase thatthisCourthas decided not to exercise its power under section 145.2 of Cap. 155 and increase thesentence or direct thatitshould run from today. Appeal dismissed. 20 Casesreferred to: Felekkis v. ThePolice
(1968)2 C.L.R. 151; Attorney-General v. Vasiliotis, alias Kaizer,and Another
(1967)2 C.L.R. 20. Appeal against sentence. 25 30 Appeal against sentence by Andreas Antoniades who wa convicted on the 24th June, 1988 at the District Court of Lamac; (Criminal Case No. 100/88) on one count of the offence ο indecent assault on a female contrary to sections 151 a n d 3 5 o f t h t Criminal Code, Cap..154 and was sentenced by Arestis, D.J. tc nine months' imprisonment. Μ Hadjichristophi with G. Georghiou, for the appellant. P. Clerides, for the respondents. 35 SAWIDES J. gave the following judgment of the Court.This is an appeal against a sentence of nine months' imprisonmeni imposed upon the appellant by the District Court of Lamaca after a plea of guilty on a charge of indecent assault on a female contrary to the provisions of sections 151 and 3 5 of the Criminal Code, Cap. 154 for which a sentence of two years' imprisonment 147 Sawides J. Antoniades v. Police
(1988)and/or a fine of £1500 isprovided. The facts of the case which wereplaced before thelearned trial Judge and were taken intoconsideration by him inimposing the sentence complained of, and which have not been contested by the appellant are as follows: 5 The appellant is60 years old and he was ateacher since 1952 and a headmaster of Elementary education since 1962 till January, 1988 when he retired. The complainant, a girlof 12years of age, was astudent at the school in which the appellant was a Headmaster and she 10 graduated in 1987.Asthecomplainant cametoCyprusduringthe school year 1986-87 she had certain problems with her lessons and her parents decided toassist herby providing lessonsand for such purpose they requested the appellant tohelp them. Asduring the school year 1986-87 thecomplainant wasone of 15 his pupils and he was not allowed to give private lessons to her arangements were made for lessons to start in September,
- The appellant used to visit the house of the aunt of the complainant for the purpose of such lessons which were given in the presence of her aunt. 20 Asfrom October, 1987theappellant, after theprivatelessonsin the house were finished, he used to ask the complainant to accompany him to his office at the school for the purpose of supplying her with ptotocopies or other material useful for her studies. On 6th November, 1987, the accused visited, as usual, the houseoftheauntofthecomplainantandafterawhileheasked the complainant withthe consentof heraunttoaccompanyhimtohis office to give her certain photocopies useful for her study. The complainant followed him to hisoffice at the school. Assoon as 30 theyenteredtheoffice, theappellantclosedthedoorandalsokept closed theonly window of theoffice which isfacing therearyard. Hestartedthe lesson whichlasted about twentyminutesand then he went near the complainant and pulled up the top part of the athletic form she was wearing, took off her brassiere and started 35 caressing her breasts. Then he put his hand under the trouser of her athletic form and started caressing her buttocks and then her legsand herprivatepartsoverherpantsandwaspullingherallthe time closer to him. This lasted for about half an hour when some 148 25 2 C.L.R. Antoniades v. Police S a w i d e s J. fellow matesofthecomplainant whowerelookingforherwentto the school to find her. They saw the light in the office of the complainant and they knocked at the door and waited for an answer.Theappellant askedthecomplainanttoputherclothesin 5 order which the complainant did.The appellant opened the door and thecomplainant left withher friendsbutinastateof anxiety. On thefollowing daythecomplainantwhowasinaconditionof unrest and crying when asked by her friends what happened she related to them the incident between her and the appellant. Her 10 friends advised her to refer the matter to her parents and as she was hesitating they did so themselves by mentioning it to the complainant's mother to whom the complainant later in the day confessed what had happened and the case was reported to the police on the 11th November,
- 15 On the 12th November, 1987, the appellant was arrested by virtue of a warrant ofarrest andwhen the reason of hisarrest was explained to him he said that there must had been a misunderstanding as he had never committed such a thing. In a written statement obtained from him hegavevarious inconsistent 20 explanations in connection with the complaint against him by which hewasmakinginsinuationsthatthecomplainant provoked him. Later in the same day he was formally charged and he admitted and expressed his regret with a request to meet the parents of thecomplainant toapologize tothem and ask for their 25 forgiveness. The learned trial Judge having taken into consideration the seriousness of the case in the light of the young age of the complainantandthepositionoftheappellant atthetimewhenthe offence was committed as an educationalist and all mitigating 30 circumstancesraisedby.hiscounselwhichconsistedofthefactthat theappellant was60yearsofagewithaclean criminalrecordwith leading social activity extending over a number of years, a fact mentioned in the report of the Welfare Officer, his offer to the societyfor35yearsandmorewhichwassubstantial,hissocial and 35 familybackground, hisrepentance,thefactthathepleaded guilty to the charge without embarrassing the complainant to come forward and giveevidence inthewitnessbox,imposed upon him a sentence ofnine months' imprisonment. The grounds of appeal raised by learned counsel for the 40 appellant are:149 SawidesJ . Antoniades v. Police
(1988)That the sentence is manifestly excessive and that the trial Court, as it appears on the face on the judgment, thought fit to impose such sentence as a deterrent sentence, and did not give due weight to the mitigating circumstances put forward. Learned counsel for the appellant in an elaborate manner 5 commented on the decision of thetrialCourtand inparticularthe reference made by the Courttothe case οί Felekkis v. ThePolice
(1968)2 C.L.R. 151 referred to by the learned trial Judge in his judgment and which the trial Judge took into consideration as a guide line on the question of sentence of offences of this nature. 10 We agree with the submission of counsel for the appellant that Felekkis case (supra) cannot be considered as a test of proper sentence in a case of indecentassault on a female. InFelekkis case the accused was convicted and sentenced for abduction and indecent assault. The trial Court imposed sentences of two years 15 and 18 months'imprisonment,respectively. When thecase came up before the Supreme Courton appeal the appeal was allowed and the sentence was reduced to one year's imprisonment for abduction and nosentencewas imposed onthecountforindecent assault astheconviction forindecentassault restedonthesameset 20 of facts. Inarguing hisground oflaw thatthe sentenceimposed uponthe accused was in the form of a deterrentsentence learned counsel for the appellant drew our attention to the judgment of the trial Court in which the learned trialJudge stated thatbearing in mind 25 the fact thatthe appellant was an educationalist for many years, a fact which though operating infavour of theappellantatthe same timeitwas anutterwhichmightaccountagainst the appellant why a deterrent sentence should notbe imposed in such cases so that the threatof a serious sentence deters othersintheposition of the 30 appellant tocommitsuch offences. We disagree with counsel for the appellant thatthelearnedtrial Judge did infact impose suchasentencemotivatedbythe thought that itshould have a deterrenteffect. What thelearned trial Judge did in his judgment when dealing with the submission of counsel 35 for appellant that the fact that, the appellant had been an educationalistforso manyyearsshouldbe taken inhisfavour, was to express, rightly in our view, the opinion that such fact might operateas welladverselyupontheappellantcalling foradeterrent sentence. Infact thelearned trialJudge inpassingsentenceonthe 40 150 ί 2 C.L.R. ι \ 5 Antoniades v. Police S a w i d e s J. appellant took intoconsideration in his favour amongst theother mitigating circumstances the fact that offences of this nature are not prevalent offences. It has been stressed time and again that in an appeal against sentence the'Courtof appeal does notinterfere with thesentence imposed by a trial Court unless satisfied that the sentence is manifestly excessive or wrong in principle or insufficient in the circumstances of the case as the case may be. As it was stressed in Attorney-General v. Neophytos Nicola VasiliotisaliasKaizerandAnother
(1967)2 C.L.R.20, all personal matters pertaining to the offender should be taken into considerationinimposing sentenceontheparticularoffender «but they should not be allowed to outweigh the requirements of properly applying the law in that particular case. Moreover a 15 sentence must have the effect of indicating in the most practical way the seriousness of the offence which we are here concerned with;and/orkeeping as a deterrenttootherpotential offenders». 10 20 25 30 35 40 We have before us what the learned trial Judge has taken into consideration inimposing thesentence appealed from andalso the mitigating factors advanced by counsel for the appellant both before the trial Court and before us.The fact that offences of this nature are not prevalent was also taken into consideration in mitigation by the Court. Nevertheless there is no doubt that the circumstances of thiscase are such as tobring thiscase within the frame of serious cases of indecent assault of a female. Such circumstancesarethepositionof theappellantasaHeadmasterof Elementaryschool towhom parentsentrusttheirchildren fortheir education and the building up of their character. Another factor is that the offence was committed on a young school girl of 12 years whom hetooktohisoffice attheschool,heguided herin,he closed the door and kept the window close and started the indecent advances against her and committed the offence to which he pleaded guilty. Furthermore the nature of the indecent assault, its Juration, which, lasted for a considerable time and was interrupted onlywhen theschool matesof thecomplainantknocked thedoorof theoffice callingtheappellantby name,arematterswhich couldnot have been ignored. Bearing in mind all the surrounding circumstances and all relevant factors both touching the seriousness of the offence and thegroundsinmitigationably ?4vanced by learned counselfor the 151 Sawides J . Antoniades v. Police
(1988)appellant and without loosing sight of the principle that the sentence should fit not only the offence but also the offender we have reached the conclusion that the sentence imposed by the learned trial Judge is neither manifestly excessive nor wrong in principle to enable ustoreduce it.Itiswithgreatreluctance inthis 5 casethatwe havedecided nottoexerciseourpowerundersection 145.2 and increase the sentence or direct that itshould rum from today. Inthe result thisappeal isdismissed. Appeal dismissed, jQ 152