clr/1988/1988_2_67.pdf

(2)The sentences are neither manifestly excessive nor wrong in principle. Appeals dismissed. Casesreferredto: Philippou v. The Republic

(1983)2C.L.R.245. 20 Appeals against sentence. Appeals against sentence by Fahd Abdo Kozhaya and Others 67 • Kozhayav.Republic

(1988)whowereconvicted onthe 19thJanuary, 1988attheAssizeCourt ofLamaca (CriminalCaseNo. 10591/87)onseveralcountsofthe offences of possessing and uttering forged U.S.A. dollars and of obtaininggoodsbyfalse pretencescontrary tothe provisionsof the Criminal Code, Cap. 154and were sentenced byNikitas,P.D.C., 5 Laoutas, S.D.J, and G. Nicolaou, D.J. as follows: Accused 1and 2 to three years' imprisonment for the offences concerning the possession and uttering of forged dollars and to one years' imprisonment on the offence of obtaining goods by false pretences;accused3wassentenced,to 11/2years'imprisonment 10 on the possession and utteringof forged dollarsand toone year's imprisonment on the offence of obtaining goods by false pretences; allsentences to run concurrently. N. derides, for the appellants. A. M. Angelides, Senior Counsel of the Republic, for the 15 respondent. A. LOIZOU P. read the following judgment of the Court. The three appellants were found guilty on their own plea of several counts of possessing and uttering forged U.S.A. dollar bills and also of obtaining by false pretences goods to the value of £400.- 20 and £20 cash. The first two appellants were sentenced by the Lamaca Assize Court to three years' imprisonment for the offences concerning thepossession and uttering offorged dollarbillsandtoone year's imprisonment for the offences concerningthe obtaining of goods and cash byfalse pretences. The third appellant was sentenced to one and a half years' imprisonment on two counts, one for utteringthree forged dollar bills of one-hundred dollars each, and the other for possessing forged dollar bills and to one year's imprisonment on two other 30 counts, one for obtaining money by false pretences and another for attemptingto utter aforged dollarbillof one-hundred dollars. Allsentences were ordered torun concurrently. The facts of the case are briefly these. The three appellants rome from Lebanon and they are of about twenty-five years of 35 age.Thefirstappellantobtained ataverycheappriceanumberof such forged U.S.dollarsfrom dealersthere,where apparently the circulation of forged U.S.dollar billsthrives. He cooperated with thesecond appellantwhoishisemployee,prepared aplanhowto 68 2 C.L.R. Kozhaya v. Republic A. Loizou P. circulatetheminCyprusandforthatpurposetheycametoCyprus on the 28th October,

1. The third appellant came with them but the Assize Court inall fairness accepted the version she gave tothe Police inhervoluntary confession totheeffect thatshe was 5 not initiated intheplan from thestartbut only after theirarrivalin Cyprus. The second appellant had alreadyvisited Cyprustwice, i.e. on the 7th July and on the 24th October, and during those visits he managed tocashfiveinallforged dollarbillsbutheavoided arrest 10 because he left Cyprus in the meantime. His activities during his first visit were the subject of counts 9 to 14 on the information, whereas on the second visit he committed the offences which were the subject of apending casebefore the Assize Court. It seemed to them that their scheming proved successful and 15 they came later on in October to continue their criminal activities inCyprus. They were ultimately, however, found by the Police to be in possession of forged U.S.dollars ofa value of $5,
2. Duringtheirlastvisiton the 28th and29th October,theyvisited 20 various banks. The first appellant was giving to his two accomplicesasmallnumberofbillswhichtheycashedandhe was given the proceeds.The last attempt of the second appellant was on the 29th October when he tried to cash three forged onehundred dollarbillsinErmoustreetinLamaca, buthewasnotthat 25 luckythistimeasthecashierofthedepartmentnoticedthe receipt and immediately called the Police, which acting promptly proceeded to the arrest of the appellants and after due investigation of all cases they were utlimately prosecuted, convicted and sentenced. 30 On appeal before us, learned counsel for them urged that the Assize Court acted on a wrong principle in that it paid undue weighttothegravityofthe offences and failed toindividualize the sentencesbetween thethreeappellantssoastofiteach offender. Wehavebeen referred toanumberofcasesthathavelaiddown 35 that principle, but we must say that in matters of sentencing the decided casesdonotestablishbindingprecedentsbutonlysetout a partem of sentencing which isdesirable tobe followed, subject tothenecessarymodifications sothatthesentencewillfitthe facts and the personal circumstances of the offender in each case. 69 A. Loizou P. Kozhaya v. Republic

(1988)Furthermore the individualization of sentence is an accepted principle,butsuch individualization mustneverlead to frustration orneutralization of sentencing. On the other hand, what is manifestly excessive has been defined in the case of Philippou v. The Republic

(1983)2 C.L.R. 5 245 where it was said by Pikis, J., in delivering the unanimous judgment of the Court at p.250that «theword 'manifest' implies, the element of excess or inadequacy must be apparent and, speaking of a sentence manifestly excessive, the excess must be obvious,lookingupon thematterfrom an objective angle The 10 elementofexcessmustbesuchastoprovideanobjectivebasisfor itsascertainment. Such basismay be provided either bythe facts ofthe case bearing no proportion tothesentence imposed, or by the sentence being altogether out of range with sentences approved bytheSupreme Courton previous occasions.» ir TheAssizeCourtinpassingsentencetookintoconsideration all the personal circumstances of each appellant which were placed before it very ably by their defending counsel. It took also into consideration allrelevant factors and arrived at thesentence that itdidimpose on each appellant, bearing inmindthegravityofthe 20 offences as itought to have been done. Itshould notbe forgotten that for the offences of uttering the sentence provided by the criminal code is one of imprisonment for life and that of possessing, seven years' imprisonment. Wehave listenedwithcaretotheaddressoflearnedcounselbut 25 we are afraid that we have not been persuaded that thisisa case where this Court should interfere with the sentences imposed, which are in our view neither manifestly excessive nor wrong in principle. Needless, also, to say that such offences appear in Cyprus in 30 recent years in an alarming frequency and Courts should take cognizance of the prevalence of such offences committed by visitors to Cyprus and should try by their sentences to see that culprits and would be offenders are convinced that Cyprus isnot a haven for the uttering of forged currency notes. oc Forallthe above reasons,the appeals are dismissed. Appeals dismissed. 70