2C.L.H. 1989February20 (SAWIDES, KOURR1S.BOYADJIS JJ ) THEREPUBUC, Appellant, ν PARISCHARALAMBOUS GEORGHIOU, Respondent (CriminalAppeal No 5050) Sentence — Impnsonment — Suspension — The Sentence of Impnsonment (ConditionalSuspension inCertain Cases)Law1972 (Law 95/72)— The nature of a suspended sentence of impnsonment — Pnnciples governing the exercise of the discretion 5 of atnalCourt indeciding whether tosuspend impnsonment Sentence — House breakingcontrarytosection 291 and292(a)and 255 of the Cnminal Code Cap 154— Jewellery valued at £8,529 stolen — Co-operation ofrespondent withthepoliceresultinginthe recovery of allbutsomejewellery valuedat£356 — Cleanrecord — 10 At the time of the commission of the offence the respondent operated underpsychologicalpressure— Twoyears' impnsonment suspended for threeyears on condition thatthe respondent will not commit acnme dunngsuchpenod punishable withimpnsonment — Appeal againstsentence bytheAttorney-General ongroundthatitis 15 manifestly inadequate, dismissed 20 25 The respondent committedthe aforesaid offence dunng thenight ofgoodSaturdaywhentheownersofthe Housewereattendingthe Church Service Heimmediatelyleft, togetherwith his girlfnend,a black-woman whomhe intends tomarryandtheir childto Greece, wherehewas apprehended andsentbacktoCyprus After aninitial attempttoconcealhisguilt,heco-operatedwiththepolice Such co operation resultedintherecovery of themostpartof the jewellery The owners forgave the respondent The Social Welfare Report showed that the respondent had a difficult childhood, and that he w a s facing problems,asboth hisandhisgirlfriend's familywereop posed tothemarriage 31 Republicv. Georghlou
(1989)Held, dismissing the appeal:
(1)The offence in question is quite serious.The Courts frequently impose longtermsof imprisonment. The prevalence of such offence is such as to call for deterrent sentences. The issue, in thisappeal isnot the imprisonment, butits suspension. 5
(2)A suspended sentence of imprisonment is still a sentence of imprisonment. ACourt should first decide whether imprisonment is the appropriate sentence, and if yes, then to ponder whether to suspend itor not.
(3)Insuspending thesentence inquestion thetrialCourtfollowed 10 the principles laid down in Demetriou v. The Republic
(1974)2 C.L.R. 45.Indeed the respondent had a clean record, he wasatthe timeofthecommissionoftheoffence operatingunderpsychological pressure; hisrepentance wasexpressed by hisconfession, resulting in the discovery of most of thestolen property and the complainant 15 and hiswife forewent anyclaiminrespect thereof. Appeal dismissed. Casesreferredto: Christofidesv.TheRepublic
(1970)2 C.L.R. 78; Pullenand Another v. The Republic
(1970)2C.L.R. 13; 20 Demetriou v.The Republic
(1974)2C.L.R.
- Appeal against inadequacy of sentence. Appeal by the Attorney-General of the Republic against the inadequacy of sentence passed on Paris Ch. Georghiou the accused in Criminal Case No. 26444/88 of the Assize Court of 2 5 Nicosia {Artemis, P.D.C., G. Nicolaou, S.D.J, and M. Photiou, D.J.) whereby he was sentenced to two years' imprisonment suspended for three years on a charge of house breaking contrary to sections 291,292(a) and 255 of the Criminal Code, Cap.
- R. Petridou (Mrs.), Counsel ofthe Republic B, forthe appellant. 30 E.Efstathiou with C. Kamenos,for the respondent. SAWIDES J. gave the following judgment of the Court. Thisis an appeal by the Attorney-General of the Republic under section 145
(3)(b) of the Criminal Procedure Law, Cap. 155 against the sentence of two years' imprisonment, suspended for three years, 3 5 imposed upon the respondent by the Assize Court of Nicosia on a 32 2 C.L.R. Republic v. Georghlou Sawldee J. chargeofhousebreakingcontrarytosections291,292(a)and 255 of theCriminal Code, Cap. 154. The facts of the case are briefly as follows:Therespondent, a25yearoldbuilderpleaded guiltybefore the 5 AssizeCourt of Nicosia ona charge of house breakinginthatona date unknown between the9th April, 1988,and 10thApril,1988, at Strovolos, in the District of Nicosia, during the night, that is between 23 p.m. and 2 a.m. broke and entered intothe houseof Theophiios Theophilou with intent to commit a felony therein to 10 wit,tosteal,and infact stolevariousjewellery ofthetotal valueof £8,529.-, property ofthe saidTheophiios Theophilou. The crime was committed in fact on the night of the Holy Saturday whilst the complainant and hisfamily were absent from the house having gone tothe church for the night Easter Service. 15 Therespondent knewthewhereabours ofthehouseasthewifeof the complainant, who isa welfare officer, was taking.care of the respondent and was trying to help him and his family in their financial andsocialdifficulties and, forsuchpurposehehadvisited the house several times. He managed to get into the house by 20 breaking the shutters of one of the bedroom windows and after entering therein he stole various jewellery of the total value of £8,529.-. The respondent disposed of some of the jewellery in Cyprusand withthemoney hecollected he left Cyprusfor Athens withthewoman withwhom hewascohabiting andhisnewly bom 25 child tovisithiscousin and from there they went tocertain Greek islands. He disposed of a small part of the jewellery there and whilst he was attempting to sell a gold sovereign in Crete the policesuspected him,arrested himand after communicating with the police in Cyprus they sent him to Cyprus where, upon his 30 arrival,·he was arrested. Uponhisarresthisexplanation tothepolicewasthathe bought the jewellery which he sold in Greece from a person whom he only knew by his small name but shortly afterwards he gave a statement to the police and admitted having committed the 35 offence and he handed over to the police allthejewellery which hehadleftbehind inCyprus.Inhisstatementtothepolicehegave a full account both concerning the surrounding circumstances of the offence as well as the persons to whom he sold some of the jewellery and at the sametime he expressed his repentance. 33 Savvide·J. Republicv.Geotgbioa
(1989)The jewellery was returned to the complainant with the exception of jewellery to the value of £356- which could not be traced and for which the complainant stated ;othe police that he had no claim and that both he and his wilt: having taken into consideration the personal circumstances of the tespondent had forgiven him. 5 The respondent is a first offender and he iscohabiting with a black woman from Uganda whom he intends to marry and with whom he has a child now a few monthsold. Inawelfare officer's report, which was produced before the Assize Court, mention is 10 made of the difficult life the respondent had during his childhood with his family where his father frequently ill-treated him and forced him todiscontinue education togotowork.Alsothesocial problemshe wasfacing asaresult ofhiscohabitation withablack woman to the marriage of whom both his family and her family 15 objected and also the problems he was facing to find a home for himself and hisfamily due tothe colour of hiswife. ThetrialCourtina carefully consideredjudgment dealtwiththe seriousness of the offence which they treated as a prevalent offence and found that in the circumstances the proper sentence 20 for such offence was imprisonment for two years. Then they proceeded to consider whether in the circumstances of the case and. bearing in mind the fact that the sentence imposed did not exceed two years, the case was a proper one to suspend the sentence. The Court bearing in mind the report of the welfare 25 officer that at the time of the commission of the crime the respondent wasoperating underpsychologicalstress,thefact that he had no previous convictions, his conduct after his arrest by admitting the offence and making a clean breast about it and delivering to the police the jewellery which he had hidden in 30 Cyprus and also giving a detailed account as to the persons to whom he had disposed some of thejewellery as a resultof which most of them were recovered, came to the conclusion that all these factors militated for the suspension of the sentence of imprisonment and they made an order accordingly suspending 35 the sentence for a period of three years on condition that he will notcommit any crime punishable with imprisonment dunng such period. Also they made a probation order for a period of two years. In the course of her address learned counsel for the appellant 40 pointed out that appellant did not consider a sentence of two 34 2 C.L.R. Republic v.Georghiou S a w l d e e J. years' imprisonment asinsufficient ormanifestly lowbutwhatshe was challenging was the order suspending such sentence. She stressed the fact thatcrimesof thisnature have become prevalent and a real menace to society and that the circumstances under 5 which itwas committed renders it more serious bearing in mind the fact that the respondent broke and entered the house of personswho had been helping him and stoletherefrom jewellery of considerable value. She stated that this offence in tne circumstances may be considered as a well planned offence and 10 that the Court was wrong in finding that the psychological condition of the respondent had anything to do in the case and wrongly took such factor into consideration. Counsel also submitted that the deterrent element in cases of this nature wasa matter which should have been taken intoconsideration and that 15 personal circumstances should not have been allowed to supersede the seriousness of the offence and concluded that the nature of the offence and all surrounding circumstances did not justify anordersuspending the sentence of imprisonment. Learned counsel for the respondent laid stress tothe principle 20 thattheresponsibilityofmeasuringtheappropriate sentence must rest with the trial Court and the Supreme Court will not interfere with a sentence on appeal unless there are sufficient reasons for such intervention. Counsel submitted that in the present case there are no 25 sufficient reasons for such intervention as the Assize Court gave sound reasons forsuspending the sentence which are in linewith the principlesapplicable tosuspended sentences. Counsel drew the attention of the Court to the contents of the tworeportspreparedbythedepartmentofSocialServicestheone 30 which was before the Assize Court and the second prepared on thedirectionsofthisCourt,andinparticularthedifficult childhood the appellant had, the problems he encountered both with the family of his prospective wife and his own family resulting from theirobjection tohismarriage,thecolourdiscrimination problems 35 he came across in his efforts to secure a home for his family, his increased responsibilities resulting from the birth of hischild and the opinion expressed in both reports about the respondent, his repentanceandeagernesstocooperatewiththeprobation officer. He also laid stress to the young age of the respondent, his clean 40 criminal record, hisconfession coupled with the delivery of most of the articles stolen and also the fact that the complainants had 35 S a w i d e · J. Republic v.Geoighlou
(1989)forgiven him and forewent any claim for the small quantity not recovered inthe expectation that thiswillhelp him inhislife with his- new family. Counsel lastly invited the Court to dismiss the appeal and approve the sentence imposed upon the respondent bytheAssize Court. Housebreaking is a very serious offence and falls within the category of felonies and when committed at night, as in the present case, it entails imprisonment of up to ten years. It has always been treated so by the Courts and long terms of imprisonmentshave frequently been imposed.Duringthelastfew 10 years it has become one of the prevalent offences and a social menacetothewelfare ofthelawabidingcitizens,underminingthe law and order in society. Itishigh time that offences of this type should be faced with severepunishmentswhichwould operateas a deterrent for the commission of such offences. 15 The approach of this Court to appeals against sentence iswell settled in a line of cases. The responsibility for measuring appropriate sentence must rest primarily with the trial Court. Sentencing isindeed adifficult and delegate function ofthe Court intheexerciseofitscriminaljurisdiction.Itmustbeperformed with 20 due care; but this Court will not interfere with a sentence on appeal unless there are sufficient reasons for such intervention. (Reference may be made in this respect to Christofides v. The Republic
(1970)2C.L.R. 78atp.80;Robert Pullenand Another v. The Republic
(1970)2 C.L.R. 13 and the cases referred to 25 therein). In the present appeal we find that a sentence of two years' imprisonment, lenient as itmay be, isnot manifestly lowand the Assize Court was not wrong in this respect. What is in issue however before us isnot the term of such imprisonment but the 30 order suspending the sentence foraperiod ofthreeyears. The power to suspend a sentence of imprisonment found its way in our legislation for the first time under s.ll of the Military Criminal Code and Procedure Law, 1964 (Law 40/64). It was introduced into our criminal law generally by the Sentence of 35 Imprisonment (Conditional Suspension in Certain Cases) Law 1972 (Law 95/72) by which the circumstances under which a sentence may be suspended are defined. A sentence may be suspended under Law 95/72 if it does not exceed two years imprisonment and under theMilitaryCriminalCode and Practice 40 36 5 2CUR. Republic v. Geoighlou Savvfdes 4. Law, as amended, in respect of offences punishable by imprisonment for lessthanfiveyears. InSentencing inCyprus byG.M. Pikiswereadthe followingat p.12 onthequestion ofsuspended sentence: 5 10 «Ourlegislationonsuspendedsentencesismodelledonthe corresponding English legislation. Courts in England have repeatedly emphasized that a suspended sentence of imprisonment isa sentence of imprisonment in every sense except that its execution ispostponed. Therefore, the court mitstdecideinthefirst place,asamatterofprinciple,whether a sentence of imprisonment isjustified and then ponder over the possibility ofsuspension.Asuspended prison sentence is notan altermativetoprobation noraspecies of probation.» In Demetriou v. The Republic
(1974)2 C.L.R. 45, the Court 15 analysedtheprinciplesupon whichasentencemaybe suspended unders.11oftheMilitaryCriminalCodeandreferred forguidance totheprovisionsof s.100ofthe Greek MilitaryCode enumerating the factors that should bear with the Court in the exercise of its discretion. In the English text of the judgment at pp. 49-50 20 TriantafyHides, P.,had thistosay: 25 30 35 «AsitisobviousthatLaw40/64wasdrafted onthe basisof corresponding provisions in force in Greece, it is useful to refer to section 100 of the Criminal Code in Greece, which laysdownthefollowingcriteriainrelationtothesuspensionof asentence. Itreadsasfollows (intranslation):'Suspension of sentence may be granted if from an examination ofthecircumstancesinwhichtheoffence was committed, and inparticularinviewof what caused it,the past life, and the character of the convicted person, the court is of the opinion that it is not necessary for him to servethesentenceinordertobedeterredfrom committing other criminal acts. In forming such an opinion the court must take, also into consideration the conduct of the offender after the offence, and especially any repentance shown, and the willingness to make reparation for the consequences ofthe offence'» The above principles were infact followed bythe trialCourtin the presentcase. The respondent has a clean criminal record. This factor was 37 S a w l d e e J.
(1989)Republic v. Georghlou taken intoconsiderationbythetrialCourt.AlsothetrialCourttook into consideration the fact that the respondent at the time of the commission of the offence was operating under psychological distress due tothe problems which he encountered as a resultof the colour of his prospective wife and his newly bom child, a 5 matter which is bom out from the report of the office of the Director of Welfare, Services. The personal and family circumstances of an accused person are matterswhich should be taken intoconsideration byaCourtandinthepresentcasethetrial Court was right in taking into consideration such circumstances. 10 We also agree with the trial Court that the repentance of the respondent expressed inhis confession tothe police inwhich he made a clean breast of the commission of the offence which resulted to the discovery of most of the jewellery stolen with the exception of a small part of it for which the complainant and his 15 wife in an effort to help the respondent in his family conditions forewent any claim,should be taken into consideration. ThetrialCourt concluded as follows: «Finally, having taken all these matters into consideration we find that we can, exercising the utmost leniency, to 20 suspend the sentence of imprisonment toafford the accused theopportunitytofacehisproblemsandestablishhisrelations with his new family and to settle in his employment. So we afford himthisopportunitytoestablish theprerequisitesfora decent lifeforhimselfandhisfamilywhicheveryhumanbeing 25 deserves.» We find nothing wrong in the approach of the Court in the present case and we have come to the conclusion that the trial Courtproperlyexerciseditsdiscretion insuspendingthe sentence ofimprisonment. In'the result the appeal failsand ishereby dismissed. Appeal dismissed. 38 30