clr/1988/1988_2_201.pdf

(3), 30 and 31 of theNarcotic Drugs and Psychotropic Substances Law, 1977 (Law 29/77), as amended by Law 17/83 —Appellant, aLebanese woman, 17years old,co-operated withthePoliceand pleaded guiltytothecharge— In offences of thisnature deterrence !sthe main factorinassessing sentence —Fouryears' imprisonment — Not manifestly excessive. The appellant isa Lebanese woman 17 years of age.She arrived atLarnaca on30.9.88.Herdestination wasSpain.Therewas found hidden in her vagina a plastic bag containing the aforesaid preparation. When her luggage were searched, there were found hidden in her trousers four further bags containing the same substance. She consented to undergo further bodily search, but before such search was carried out, she admitted that there was anotherbaghidden inheranus. Sheco-operated withthePolicebygivingthenameoftheperson, who paid her in order to transport the drugs, and the name of the supplierof the drugs.She pleaded guiltytothecharge. 20 25 The Assize Court sentenced her to four years' imprisonment Hence thisappeal. Held, dismissingthe appeal:

(1)The principle of individualisation of sentence does not mean that the Court must attach little or no weight to the circumstances of the offence and in particular to the severityorprevalence ofthe offence. 201 H a n r a d v. Republic

(2)Therehasbeen dui.nj trieiasttenyears aconstantincreasein thelengthoftheperiodofimprisonmentforoffences ofthiskind,due toawareness ofthecatastrophicconsequencesoftheuseofdrugs.In futureeven moreseveresentencesshouldbepassed,ifsuch offences continuetobecommittedwiththefrequency presently observed. 5

(3)Thereisasmall category ofoffences amongwhich thesupply of drugs runsfirstonthelist, for whichtheproprietyofthesentence isjudged withreference mainlytothefactoroftheirseriousness and the need oi dete:rence,-atherthantothepersonalcircumstancesof theoffender andtheιusedofhisrehabilitation. 10 Appealdismissed. Appeal against sentence. Appeal against sentence by Salva Hamdazwho was convicted on the 11th October, 1988 at the Assize Court of Lamaca (Criminal Case No. 9387/88) on one count of the offence of 15 possessing a controlled drug with intention of supplying it to others contrary tosections 2,3,6

(3), 30 and31 of the Narcotic Drugs and Psychotropic Substances Law, 1977 (Law No. 29/77) and was sentenced by Nikitas, P.D.C., S. Nicolaides, Ag. S.D.J. and Hadjihambis, D.J.tofour years' imprisonment. 20 G.Papantoniou, for the appellant. ft Gavnehdes, Senior Counsel of the Republic for the respondents. SAWIDES J.: The judgment of the Courtwillbe delivered by Mr.Justice Boyadjis. BOYADJIS J. On 11 October 1988 a sentence of four years' imprisonmentwas passed ontheappellantby theAssizeCourtof Lamaca following her conviction on her own plea of guilty on count 2 of the information charging her with possession of a controlled drug of class «A», namely 295 grams of preparation 30 containing 75 per cent heroin, with the intention of supplying same to anotherperson contrary tosections 2, 3, 6

(3),30 and 31 of the NarcoticDrugsandPsychotropicSubstances Law, 1977, (Law 29 of 1977) as amended by Law 67 of 1983. She now appeals against her sentence on the ground thatitis 35 manifestly excessive. The circumstances pertaining to the crime committed by the appellantandtothepersonoftheappellantarebriefly as follows: 202 25 2 C.L.R. 5 10 15 20 25 Hamiad v. Republic Boyadjls « Theappellant is? oungwoman ofBrazilian origin residing wit! her husband in Leuauon.She is only 17 years old and is marriet to a Lebanese man.She has no children.She isa housewife wit! clear record. She arrived at Lamaca on board the ship «Sunny. from theLebanese town ofJunieh on30 September 1988andsh< was given a transitpassenger's permittoenterthe Republic,valit for one day. Herdestination was Spain. At theusual passengers checkatLamacaCustomssoon after herarrival, theappellantwasearched by a policewoman and hidden in her vagina there war found and seized asmall plastic bag containingasubstance whicl she admittedas being heroin.Theappellantand herluggage wert taken to the Lamaca Police Station where an additional quantity of heroinwas found packed infour othersimilar small bagskeptir the pockets of a pair of trousers in her suitcase. Having beer arrested on the same day, consented in writing to be furthei searched by a woman doctor for the purpose of finding othei quantity of heroin which she might have hidden in otherparts ο her body. Before the search was carried out, however, she volunteered to surrender to them three other similar bags htdder in her anus. She was taken to the hospital where she removec from her anus inthepresence of the police three bagscontaining heroin. In a voluntary statement given to the police after tht discovery of theherointheappellantstated thatshe had agreed tc carry the heroin from Lebanon to Spain yielding to a proposa made to her by a man whom she met by chance and whom she named, in consideration of regeiving 1,500 U.S. dollars and, oi course, a free ticketfrom Lebanon toSpain.Theheroinwas to be delivered by hertoa man namedby her supplier. f Learned counsel for the appellant argued that (i) though h(30 AssizeCourtinpassingsentence onhisclientstated thatthe young age of the accused and her repentance and attitudetowards the offence were taken into consideration, theAssize Court failed to attach tothemsufficient weightas mitigating factors; (ii)theAssize Court failed to individualise adequately the sentence so as to fit 35 sufficiently theperson of thisparticular offender. The young age of the appellant is, no doubt, a mitigating circumstance to be taken into consideration together with all other mitigating circumstances, including her attitude following hersearch andrecovery oftheheroinandherpleaofguilty.We do 40 not, however, agree with counsel for the appellant that the trial Court ought to have given to these mitigating factors greater weightthantheonegiventothem.Theprinciplethatthesentence 203 BoyadjisJ. Hamzad v.Republic

(1988)mustfittheperson ottheaccusedaswell,sometimesdescribed as the principle of individualisation of sentence,does not mean that theCourtmustattachlittleornoweighttothecircumstancesofthe offence and in particular to the severity or prevalence of the offence. A careful consideration of the sentences which have been imposed on drug dealers and traffickers the last five to ten years reveals a steady and constant increase inthe length of the period of imprisonment. This is due to our increased awareness of the catastrophic results caused bythe useof drugs,especially heroin, irj the prevalence of such crimes, and the urgent need of defending our society on the local and international level from the evil emanating from the use of drugs.These legitimate objectives can only be achieved if the element of detterence is the main characteristic of the sentences imposed on persons who make it 15 their business to ruin other peoples' livesbysupplying them with drugs. The Courts had no alternative but to impose increased sentences year after year for offences oi trafficking of drugs after realising that their repeated warnings had gone in vain. On the occasion of thepresent appeal wewanttorepeatourwarningthat 20 Courtsshallnot failintheirdutytosuppressoffences ofthisnature by imposing even more severe sentences in the future, if similar offences continue to be committed with the frequency presently observed. We would like to conclude by saying that there is a small 25 categoryof offences amongwhichthesupplyofdrugsrunsfirston the list, for which the propriety of the sentence is judged with reference mainly tothefactor oftheirseriousnessand theneedof deterrence rather than to the personal circumstances of the offender and the need of hisrehabilitation. 30 Itissadthatayoungwomanliketheappellantstandssentenced tofour years' imprisonment outof themaximum term of fourteen years'imprisonment whichthelawprovidesfortheoffence which she has committed, but she isthe author of her own misfortune. For this Court to intervene it is not enough to show that the 35 sentence is severe or that, had we tried the case ourselves we would impose a more lenientsentence.Itisuptotheappellant to satisfy usthatthesentence ismanifestly excessive,i.e., considered 204 5 2CL.R. Hamzad v. Republic Boyadjis J. objectively, itiseitherwronginprincipleoroutofallproportion to thecircumstancesthataCourtoughttohavetakenintoaccountin imposingit.She hasfailed todoso. Inconclusion, theappeal isdismissed. 5 Appeal dismissed. Sentence confirmed. 205