(19S8) 1988July 4 (A.LOIZOU,P.,DEMETR1ADES,KOURRIS,JJ.; 1.SAMIRANTOINEKASSAR, 2.ANTOINER. HAGE, Appellants, v. THEREPUBLIC, Respondent. (CriminalAppealNo. 4925), Sentence—Possessing of controlled drug(23grams of cocaine) and possessingofsuchdrug with intenttosupplyittootherpersons— Threeandhalfyears'imprisonmentoneachcount,sentencestorun concurrently—Onthelenientside—Courtsshouldbemindedto imposeheaviersentences. Sentence—Mitigating factors—Entrapment byagentprovocateur— In casesinvolving drugsmaynot even be considered assucha factor. Criminal Law—Agent provocateur—Entrapmentby—It is not a substantivedefence. 10 The facts of this case appear sufficiently from the hereinabove headnote. Appealdismissed. Casesreferredto: Kyriakidesv.TheRepublic
(1983)2C.L.R.94; EI-Etriv.TheRepublic
(1985)2C.L.R.40. Appeal against conviction and sentence. Appeal against conviction and sentence by Samir Antoine Kassar and Another who were convicted on the 22nd October, 1987 attheAssizeCourtofNicosia(CriminalCaseNo.28867/87) 20 on one count of the offence of possessing 23 grams of cocaine contrary tosections 2,3,6
(1)
(2), 30 and 31of the Narcotic Drugs 96 15 2 C.L.R. Kassar & Another v. Republic and Psychotropic Substances Laws 1977-1983 and on one count of the offence of possessing narcotic drugs for the purpose of supplying them toother persons contrary tosections 2,3,6
(1)
(3), 30 arid 31 of the above-laws and were sentenced by Artemides 5 P.D.C., Kronides,S.D.J,and Eleftheriou, D.J.toconcurrent terms of3 1/2 years' imprisonment an each count. G. Georghiou, for appellant inCriminal Appeal No.4925. M. Kyprianou, Senior Counsel of the Republic with A. Vassiliades, for the respondent. 10 A. LOIZOU P. gave the following judgment of the Court. The appellant was jointly charged with two other persons and was found guilty after a long hearing, of the offence of possessing twenty-three grams of cocaine contrary tosections 2,3,6
(1)and
(2), 30 and 31 of the Third Schedule of The Narcotic Drugs and 15 Psychotropic Substances Laws, 1977to 1983and Order No. 139 of 1979, and of the offence of possessing the same quantity of narcoticsfor thepurpose ofsupplying others, contrary to sections 2,3, 6
(1)
(3)30and31ofthesamelaw.Hewassentenced tothree and half years' imprisonment on both counts, sentences to run 20 concurrently, In passing sentence, the Assize Court dealt with the mitigating circumstances as regards another-co-accused who appeared to have played aleading role inthe whole affair and inparticularhis degree of complicity and in order to avoid, as it thought, any 25 disparity ofsentence itimposed asimilarsentence onthat accused who was appellant in Criminal Appeal 4924, which hasjust been withdrawn. The facts of the case ar? briefly these. The ex-appellant as first accused on the information and the present appellant had 30 conceived and laid a plan for the sale of cocaine after having offered themselvestothe Policetoactaspoliceinformers. Indeed thePoliceaccepted from ex-appellant theoffer inconsiderationof renewing his residence permit in Cyprus, where he had been stayingfor abouttwoyearsunemployed. Hehadplayed,as found 35 by theAssize Court, the leading role inthe whole affair as he had made the contacts with the Police to which he was giving vague and of.no significance pieces of information whilst together with thepresentappellantputintooperation theplantosellcocaine for theirownprofit..Obviously their«status»aspoliceinformerswasto 97 A-LcdnoaP. KaaaaaCiAna&ttv.Eia&dt&c (ΕCOO) •jive theman alibi and a possible, intheirview,defence in case iheywere caught. Thethirdco-accused,anEgyptian,wastheonewhointroduced tothemtheprospective purchaserwhowas inactualfacta police informer. Originally theoffer was for onetotwo grams of cocainebutit was thepolice informer whohadasked fifty grams of cocainefor the price of £2000. Itseems thatthe Police acting through their informer wanted to find outwhether these twosuppliers were in possession ofa larger quantityof cocaine.AlsothePolicegaveto 10 theinformer the£2000,inordertoshow themtothe suppliers. TheAssizeCourtalso accepted thefact thatthetwo suppliers were encouraged tosupply thesupposed purchaserwithabigger quantity than that in respect of which the deal was to be jg concluded. Itmayusefullybe said here,thoughthepointwas notraisedon appeal, thatthe question of entrapmentby the use of an agent provocateurwas dealtwith atlength by thisCourtinthecasesof Kyriakidesv.TheRepublic
(1983)2C.L.R.94andAhmatAIi £7Etri v. TheRepublic
(1985)2 C.L.R. 40, where itwas held that 20 entrapmentisnotasubstantive defence inacriminalcasebutonly a matterwhich maybe relevant inmitigationofsentence.Yetthe use of police informers andundercover agents maynoteven be a mitigation in cases regarding the discovery of drugs, if in particular no exceptional persuasion is used to overcome 25 reluctanceas offences liketrading indrugs have tobe faced with legitimate meansthoughnotalways absolutely. Inarguing thecase of theappellantagainst conviction learned counsel has urged thattheappellant was entitledtothe defence provided insection 10 of theCriminalCode,i.e.,of a mistake of 30 fact andinsupportof thatdefence hehasinvited theattentionof the Courtto certain pieces of evidence whereby the co-accused had contacts with the Police and through whom the appellant delivered a counterfeit dollarbillwhich was laterreturnedtohim andasaresultofthiscontacthewas expectedtoinformthepolice 35 abouttheconsignmentof counterfeit currencynotesthatwere to be brought toCyprus for circulation.Thepoliceman inquestion was positive however inrejecting anysuggestion bycounselinthe' courseof thecross-examination thathehadengaged thesaidcoaccused andthisappellantaspoliceinformers. 40 98 5 2 C.L.R. 5 Kassar &Another v. Republic A. Lolzou P. Theevidence adduced wasdealtwith extensivelybytheAssize Court in itselaborate judgment and itrejected the version of the appellant that he had an honest and bona fide belief that by assistingthesaidco-accused, totradeinnarcotics,hewasactingas apoliceinformer, andtherefore, hewasexonerated ashe claimed ofany liability. Wehavenoreasontointerferewiththefindingsoffactmadeby the trial Court and the conclusions drawn thereon which are duly warranted by the totality of the evidence adduced. The defence, 10 therefore, under section 10 of the Criminal Code was rightly found nottobeavailabletothisappellant onthefactsofthiscase. Theappeal, therefore, against conviction fails. Asregardshisappealagainstsentence,considenngthetrendof sentencing incasesofnarcoticsasaffirmed bythisCourt on appeal, 15 and the gravity of the offences of dealing with cocaine which belongstothecategoryofharddrugswhichcanbringnothingbut death to the prospective users and indeed victims of such cruel and murderous trade,wefindthatthesentence imposed was not excessivebut indeed a lenient one. 20 Itistime that for thiscategory of offences, takingdue noticeof thefact thattheLegislator, hasincreasedthesentences regarding these offences, Courts should be minded to impose heavier sentences taking, naturallyintoaccount,notonlytheirgravitybut alsotheirprevalenceandthedesiredaimofdiscouraging«visitors» 25 toCyprusfrom usingitsterritoryasaplaceofeitherdealingsin,or transhipment of narcotics. The appeal therefore against sentence is also dismissed. It is with reluctance that we have not increased the sentence, but this approach shouldnotbetakenasaprecedentthatthisCourtwillnot 30 be ready to do so, in a proper case in the future, in order to demonstrate itsabhorrence for such offences. Appeal dismissed. 99