(1988)1988 November 21 (SAW1DES. HADJtTSANGARIS & BOYADJ1S.JJ.) MICHALAKISKATSOUR1S, Appellant, v. THEPOLICE, Respondent. (CriminalAppeal No. 5013). Sentence —Stealing of£17,455.- byagent, contrarytosections255 and 270(e) of the CriminalCode, Cap. 154 —Appellant aged 58 with clean record and problems of health —Sum stolen paid to the owner—18 months' imprisonment —In the circumstances reduced to 12months. Sentence —Mitigating factors—Delay in taking or prolongation of criminalproceedings attributedtoprosecution —Asinthiscase the delay isattributed to the accused, it could not be treatedassuch a factor. The appellant stole the sum of £17,455.- which was part of the 10 proceeds of the sale of 1500 cartons of «bic» pens which the complainant, Serafim Co. Ltd., entrusted to the appellant for sale and collection oftheirvalue. Theappellant is58yearsold,hasacleancriminalrecordand faces serious problems of health. The appellant repaid theaforesaid sum tothe complainant. The proceedings were filed on 10.3.1985, but the hearing was concluded on 23.6.1988. The delay, however, is attributed to the appellant. ThetrialCourtimposed ontheappellantasentenceof18months' 20 imprisonment. Held, allowing the appeal:
(1)Asthe delay inconcluding thetrial is attributed to the appellant, it could not have been taken into consideration. 180 ^ 2 C.L.R. Katsouris v. Police
(2)Offences of this nature are very serious and severe sentences shouldbeimposedbecausemistrustofconfidence isaseriousmatter which tends to undermine the foundations of commercial transactions. ^
(3)However,thiswasacaseofanisolatedactofmistrustand,inthe light of the mitigating factors {age of appellant, clean record, condition of health and repayment of the monies), the sentence should be reduced to 12months' imprisonment. Appeal allowed. 10 Casesreferredto: Attorney-General v.Mavrokefalos
(1966)2C.L.R.93; Attorney-General v.Vasiliotis
(1967)2 C.L.R. 20; Attorney-General v.Lazarides
(1967)2 C.L.R. 210. Azinasand Another v.The Police
(1981)2 C.L R.9; 15 R. v. Barrick[1981] 1Cr.App.Rep.78; Weston [1980]2Cr.App.Rep.391; Strubell [1982]4 Cr.App.Rep.300. Appeal against sentence. Appeal against sentence by, Michalakis Katsouris who was 2 0 convicted on the 23rd June, 1988 at the District Court of Nicosia (Criminal Case No. 6397/85) on one count of the offence of stealing contrary to sections255 and 270
(6)of the Criminal Code, Cap. 154 and was sentenced by Kallis, D.J. to eighteen months' imprisonment. 25 p. Solomonides, for the appellant. A. M. Angelides, Senior Counsel of the Republic, for the respondents. 30 35 SAWIDES J. gave the following judgment of the Court. This is an appeal against the sentence imposed on the appellant in Criminal Case 6397/85 of the,District Court of Nicosia on a charge of stealing by agent contrary to the provisions of s.255 and 270(b) of the Criminal Code, Cap. 154. The appellant was found guilty on the charge after a hearing of the case and the sentence imposed upon him was that of 18 months' imprisonment. 181 Sawtdes J. Katsouris v. Police
(1988)The present appeal was originally directed both against conviction and sentence. At a later stage, however, the appeal against conviction was withdrawn by counsel for the appellant, very rightly in our view, and the appeal was heard only as far as sentence is concerned. Theparticulars of the offence are totheeffect thatthe appellant between 30th October, 1984 and 8th November, 1984 stole the sum of £17,455.- which was part of the proceeds of the sale of 1500 cartons of «bic»pens which complainant, Serafim Co. Ltd., entrusted to the appellant for saleand collection oftheirvalue. 10 Theappellant wasactingasa commissionagentand hecameto an agreement with a foreign company to sell to them for the account of the complainant a quantity of «bic»pens for a certain sum of money. Out of such sum which was collected by the appellant he detained the sum mentioned in the charge. 15 Thecomplainant reported thecasetothepoliceandatthesame time brought an action against the appellant which atsome stage prior to the hearing was settled and the sum claimed waspaid by the appellant tothe complainant. The appellant is58 years old, has a clean criminal record and 20 from whatitappearsinthejudgmentofthetrialCourtaswellasin the file of the case he faces seriousproblems of health. Thecriminalcaseagainsthimwasfiled onthe10thMarch, 1985 and the hearing of the case was concluded on 23rd June, 1988. For such delay, however, neither the prosecution nor the Court 25 are to blame as from what appears in the file of the case the adjournments were applied for by hiscounsel on some occasions due to his inability to attend the Court for reasons of health, on others due to absence abroad and on some occasions due to the unjustified absence of the accused which led to the issue of 30 warrant of arrest against him. Ithasbeen stressed bythisCourtona numberofoccasionsthat delay in taking criminal proceedings and the prolongation of criminal proceedings for long time as a result of the delay of the prosecution to act promptly are factors which are taken into 35 consideration in passing sentence upon an accused person. As mentioned, however, earlier in the circumstances of the present case such delay cannot be attributed totheprosecution buttothe appellant. 182 2 C.L.R. 5 Katsouris v. Police Sawldes J . Wehave paid due attention tothe grounds of appeal raised by learned counsel for the appellant in mitigation of sentence. We havealsoheardtheviewsoflearnedcounselfortheRepublic who expressed certain viewsastowhetherdueweight hasbeen given tothemitigatingcircumstancesoftheappellantandinparticularto the fact that the appellant is 58 years old without any previous convictions, that he has serious problems of health and also that theamount misappropriated bytheappellant hasbeen paid prior tothehearing ofthe case. 10 The trial Court in passing sentence upon the accused made reference toanumber ofcasesofthisCourtinrespect of offences of similar nature and the observations of the Court in such cases and in particular the cases of Attorney-General v. Mavrokefalos
(1966)2 C.L.R. 93;Attorney-General v.Vasiliotis
(1967)2 C.L.R. 15 20;Attorney-General v.Lazarides
(1967)2C.L.R.210and Azinas andAnother v. The Police
(1981)2C.L.R.
- Wewishtopointouthowever thatthe offences inthe aforesaid cases relate to misappropriation of public funds or funds belonging to the public in general by a person who had the 20 immediate control and administration of such money and the .conviction wasinrespect of a number of offences ineach case. The case of Mavrokefalos (supra)wasthe case of asecretaryof a cooperative society and the offences commited by him were committed during a period in which offences of thisnature were 25 prevalent and thisappears inthe decision of the Court of Appeal inthat caseatp.
- Inthe case of Lazarides (supra) the accused wasa civil servant. a post-office officer, who was habitually stealing envelopes containingcashorchequesandtheCourtofAppealtookseriously 30 intoconsideration theseriousnessofsuchoffences and substituted a sentence ofimprisonmenttothatofa fine. The case of Azinas (supra) was also a case in which the CommissionerofCooperativeSocietiesand oneofhisemployees were involved in misappropriation and stealing of money 35 belonging to the cooperatism and they were facing 18 charges extending overalongperiod oftime. We agree with the principles concerning sentence expounded bythe learnedtrialJudge inhisjudgment and hisreference to the case of Rex v. Barrick [1985] 81 Cr. App. Rep. 78 in which 183 SawidesJ. Katsouris v. Police
(1988)reference ismade to a number of other decisions decided by the English Courts such as Weston [1980] 2 Cr. App. Rep. 391 and Strubell [1982] 4 Cr. App.Rep.300 which was a case of stealing by accountant and which set out certain guide-lines as to how offences of thisnature should be faced. 5 We have not the slightest hesitation in adopting the view that offences of this nature are very serious and severe sentences should be imposed because mistrust of confidence is a serious matter which tends to undermine the foundations of commercial transactions. 10 In the present case however, bearing in mind that the offence committed by the accused was an isolated act of mistrust of confidence entrusted to himbythe complainant and thataftei the institution of civil proceedings against him he came into an arrangement with the complainant andpaidtheamount collected 15 byhim,thathe is58yearsoldandhasa clearcriminalrecord,that the condition of hishealth isbad wehave come tothe conclusion that the trial Court has not given due weight to these mitigating factors and we find that in the circumstances the sentence which otherwise might have been most appropriate and lenient for 20 offences of this nature ismanifestly excessive and that a sentence of 12 months' imprisonment would be more appropriate in the circumstances. Inthe result the appeal isallowed and the sentence is reduced to one of 12months' imprisonment. 25 Appeal allowed. Sentence reduced totwelve months. 184