clr/1989/1989_2_61.pdf

(1966)2 C.L.R. 116 citedwithapproval. 20 Sentence —Mitigating factors—Confession to police and plea of guilty—Should carrylittleweight, when there isinfactlittleother alternativetothe accused. 25 In this case the respondent, who was among the spectators of a football match,enteredthesecurelyenclosedfootball ground during an incident, arising out of protests of the players of the one team 'againstaparticulardecisionoftherefereeandassaultedthereferee. 61 Police v. loannou

(1989)The tnal Judge treated as mitigating factors the fact that the respondent was at thetimeundertheinfluence of dnnk,thefactthat the referee did notsustain actualbodily harmandthefacts thatthe accused confessed his cnme tothe police and pleaded guilty tothe charge Inthe light of such factors and of therespondent'spersonal circumstances, thetnalJudge imposed on theaccused a fine of £40 and bound him over in the sum of £200 for two years to keep the peace 5 Hence this appeal Held, allowing the appeal

(1)The pnnciples governing 10 interference with a sentence on appeal on the ground that it is inadequate are thesame with those applicable incase of appeal on the ground that it is excessive This Court will not interfere, unless The tnal Courtmisdirected itself on thefacts or thelaw, or allowed itself to be influenced by a matter, which should not affect the 15 sentenceor when thesentence ismanifestly excessive

(2)Inthiscase thetnalCourtfailed togivesufficient weight tothe senousness of theoffence Thisincludesthefact of theinterruptionof the match, whereby thousands of people were disappointed Both the tnal Court and this Court may take judicial notice of the 20 prevalence of these offences

(3)The fact thatno actual bodily harmresulted from theassault is not a mitigating factor, because, if it had resulted, the respondent would have been guilty of amoresenous cnme(section243 of Cap 154) 25

(4)Drunkenness is sometimes treated as a mitigating factor, sometimesas anaggravating factor, incommonassault cases itisnot a mitigating factor

(5)A confession to the police should carry little weight in cases, where thereisnootherreasonable alternativeopentotheaccusedas 30 in this case, where the cnme was committed before thousands of people Appeal allowed Six weeks' impnsonment on respondent Cases referredto 35 Attorney-General ν Vasiliotis

(1967)2 CLR 20, Afxenti *Iroas> ν TheRepublic

(1966)2 C L R 116, Attorney-General ν Mavrokefalos

(1966)2 C L R 93, R ν Morton [1908] 1Cr App Rep 225, Pohtisν ThePolice

(1973)2 CLR 2Π, 62 4 0 Policev.loannoo 2CUR. SmithandAnotherv. ThePolice

(1969)2CL.R.139; Kourrisv.ThePolice

(1970)2CL.R. 53; R.v. Paton 11082] CnmL.R. 58; R.v. Lindtey[1980]2Cr App.Rep. (S}3; 5 R.v.BradWy[1980]2Cr.App.Rep. (S)12R.v.Cingell[l9ei0] CnmL.R.

1. Appealagainst inadequacy of sentence. Appeal by the Attorney-General of the Republic against the inadequacy of the sentence passed on the accused bythe Distnct 10 Court of Limasso!(N.Nicolaou. Ag.S.D.J.) in Criminal O s e No 30918/88 whereby he was sentenced to nay £40.- fine nno w^s further bound overinthesumof£200.-fortwoyearsononecoun*. of the offence of common assault contrary to section 242 o f the Criminal Code, Cap.
2. 15 M. Kyprianou, Senior Counsel of the Republic, for tnt* appellant. Respondent appeared in person. Cur.adv vult DEMETR1ADESJ.:Thejudgment of theCourtwillbedelivered 20 by Boyadjis, J. BOYADJIS J.: On December 27, 1988 the respondent appeared in the District Court of Limassol charged on one count of common assault contrary tosection 242 of the Criminal Code, Cap. 154,asamendedbyLawNo. 166of 1987 Hewasconvicted 25 on hisown plea of guiltyand wassentenced topaya fine of £40 He was further bound over in the sum of £200 for two years to keep the law. Exercising hisrightsunder section 137(l)(b) of the Criminal Procedure Law, Cap. 155,the Attorney-General of the Republic now appeals against the aforesaid sentence on the 30 ground that itismanifestly inadequate. The case derives from a shameful incident which occurred on the afternoon of December 26, 1988, in the Tsirion Stadium, at Limassol, during the course of a football match between the two LimassolteamsofAELandAPOLLON.Therespondent, whoisa 35 married man and the father of three children, employed asa taxi driver, and who has no previous convictions during the last 10 63 Boyacjjie Λ. Police v. I o a n n o n

(1989)years, was one of the spectators who crowded the stadium to watch thegame Thesecond partof thegame hadjustbegan when an incident had occurred between two rival players as a result of which the referee showed a red card to the player of APOLLON team Other players of that team approached the referee 5 protesting against his decision The referee started withdrawing backwards Itwas at thisstage that,from the area reserved for the spectators where he was supposed to be, the respondent found himself within the securely enclosed football ground How and when he managed to do that remained unexplained He ran 10 towards the referee and using his hand gave a blow on the referee's head and continued his running in an unsuccessful attempttoescape theconsequences ofhisact Hewas arrestedon the spot by the police As a result of the violent blow which he received thereferee fell ontheground Therespondentwas atthe 15 time undertheinfluence of largequantityof alcohol which hehad consumed with fnends atlunchtime As a result of this disgraceful incident thegame was interrupted Learned counsel for the respondentsubmitted tothetnaljudge that his client's case was not one of hooliganism in football 20 matches but it was an unfortunate and isolated case of common assault largely due to the respondent's intoxication Fortunately, he added, the assault did not occasion any bodily injury to the victim Heconcluded his plea for leniency by invoking the family obligations and the clean record of therespondent during thelast 25 10 years ThetnalCourtrecordedthereasons forwhich itimposed onthe respondent the sentence challenged by this appeal It nghtly descnbed the offence which the respondent had committed as a senous one It made particular reference to two aggravating 30 circumstances First, that he had entered the enclosed ground where the match was played and where he had no nght to be Secondly, he assaulted thevictim whilstthelatterwas carrying out his duties as the referee of the game It then referred to the following four mitigating factors which it took into account in 35 measuring the appropriate sentence First, that the respondent acted under the influence of dnnk Secondly, the charge against the respondent was one for common assault which did not occasion any actual injury to the victim Thirdly, the respondent made an immediate admission and entered a plea of guilty tothe 40 charge And fourthly, thepersonal andfamily circumstancesofthe respondent towhich we have already referred 64 2 C.L.R. Police v. loannou Boyadjis J. Learned counsel for the appellant submitted that, in assessing theappropriatesentence,thetrialCourtmisdirecteditselfastothe principles applicable in that: (i) it omitted to attribute sufficient weight to the seriousness of the offence and to the need of 5 deterrence; (ii)itwas influenced by matters which should not, in the circumstances of this case affect the sentence and (iii) it attributed to circumstances which constitute mitigating factors greaterweightthantheydeserve.Theresultofthe misconception, counsel added, wasforthetrialCourttoassessandimposeon the 10 respondentasentence whichismanifestly inadequate.He further submitted thatthetrialCourtcouldandshouldtakejudicial notice of the fact thatviolent behaviour in football grounds has become prevalent phenomenon. He concluded by inviting us, in reassessingthesentence,totake ourselvesjudicial notice ofthe fact 15 that assaults and other violent behaviour are of common recurrence in football matches. Therespondentisnotrepresented bycounsel inthisappeal. He refused anoffer ofthe Court toappoint forhimadefence counsel at the expense of the State if he so wished. He made a short 20 statementinhisown defence givingemphasistohisbad financial condition during the last years and to the fact that he has been declaredbankrupt. Heconcluded byprayingfortheindulgenceof the Court. In the case of the Attorney-General of the Republic v. 25 Neophytos Nicola Vasiliotis

(1967)2C.L.R. 20,itwassaidthatin itsapproach toanappeal againstsentence ontheground thatitis manifestly inadequate, the Supreme Court follows the same principles applicable to appeals against sentence on the ground that itismanifestly excessive. Reference isthen made to the case 30 of Afxenti *hoas»v. The Republic

(1966)2 C.L.R. 116, where theseprinciples,consistentlyappliedeversince,werelaiddownin the following termsatp. 118: 35 40 «This Court has had occasion to state more than once in earlier cases, that the responsibility of imposing the appropriate sentence in a case, lieswith the trial Court. The Court of Appeal will only interfere with a sentence so imposed, ifit ismade to appear from the record that the trial Court misdirected itself either on the facts or the law;or, that the Court, in considering sentence, allowed itself to be influenced bymatterwhichshouldnotaffect thesentence;or, ifitismade toappearthatthesentence imposed is manifestly excessive inthe circumstances of the particular case.» 65 B o y a d P · J· Police v.loaanou

(1989)We are unanimously of the opinion that the trial Court misdirected itself asto theprinciples which must guidethe Court in administering the Criminal Law and in imposing sentence, in that: (a)itfailed to give sufficient weight to the seriousnessof the offence in the circumstances in which it was committed by the 5 present respondent, which include the fact that the result of his behaviour was the interruption of the football match with the consequent disappointment of the thousands of peaceful supporters of both teams who paid their ticketsand entered the stadiumrightfullyexpecting to enjoy the game from beginning to 10 end. It also failed to pay sufficient heed to the need that the sentence should carry sufficient deterrent effect on persons who cannot control their behaviour in public gatherings, especially football grounds,atatimethatviolentbehavioureitherintheform of isolated incidents or of hooliganism, isbecoming increasingly 15 common.Thetrialcourt,andeventhisCourtonappeal,maytake judicial notice, virtute officio, of the prevalence of this kind of offences in football matches. See in this respect the case of 77ie, Attorney-General of the Republic v. YiannacosP. Mavrokefalos

(1966)2 C.L.R. 93. 20 The trial Court has also erred in treating as a mitigating circumstance the fact that the common assault committed by the respondentdidnotoccasiontothevictimanyactualbodily injury, and in allowing to be influenced thereby in itsassessment of the appropriate sentence. Ifthe assault had occasioned to the victim 25 actual bodily injury, the respondent would be charged with the more serious offence of assault occasioning actual bodily harm under section 243 of the Criminal Code, which carries the maximum punishment of imprisonment forthreeyears,insteadof one year provided for insection242under whichtherespondent 30 has been convicted. Thereare many cases,likethe present one, where the same set of circumstances constitute two distinct offences, one less serious and one more serious, with the only difference that there isan additional circumstance which though present in the latter case is absent in the former case. Such 35 additional circumstance, usuallyisintheform ofthespecial capacityunder which the offender acts,or in the form of a particular intention whichhehasindoingtheact,orintheform ofparticular resultswhichthesameunlawful actbringsabout.If,becauseofthe absence of this particular circumstance, the offender ischarged 40 withthelessseriousoffence, he cannot, upon hisconviction, rely in mitigation of sentence on the absence of this additional circumstance. 66 2 C.L.R. Police v. loannou Boyadjls J. As far as sentencing is concerned, drunkenness is sometimes treated as a mitigating factor, sometimesasan aggravating factor and sometimes as a neutral factor. Decided cases here and in England donotclearlyestablish inwhichoffences orunderwhich 5 circumstances drunkenness amounts to either mitigation or to aggravation or, is simply ignored. In cases where intoxication affects the guilty intention which the offender must have, it operates as a mitigating factor. See for instance Rex v. Morton [1908) 1 Cr.App.R.225,acaseconcerned withburglarious entry 10 inahouse, TassosSawa Politisv.ThePolice

(1973)2C.L.R.211, a case concerned with the offence of stealing a motor-cycle, and FrancisKenneth Smith andAnother v.ThePolice

(1969)2 C.L.R. 189, alsoconcerned withstealing and causing malicious damage toaboat,DemetrisMichaelKourrisv.ThePolice

(1970)2 C.L.R. 15 53,where asentence ofthree years' imprisonment imposed on a blind man of65 years ofage, convicted on a count charging him withaggravatedassaultwhich hecommitted whilstbeingdrunk,is the only decision that we could trace where drunkenness was treatedasamitigatingfactorinassaultcases.VassiliadesP.saidthe 20 following atp.56 ofthe report: 25 30 35 40 «The trial Judge does not seem to have· taken into consideration the state of appellant's mind at the material' time.The appellant wasobviously inastate of drunkenness. Drink may, as a rule, not afford a legal defence; but it is a condition which must be taken into consideration as one of the factsofthecase.Itmustcertainlybetaken intoaccountin measuringsentence.Itmaybeareasonforimposingaheavier sentence .or a lighter one, depending on the relevant circumstances ineach case.» In the chapter on Mitigation in his book Principles of Sentencing, D.A.Thomaswritesthefollowingconcerningdrinkat p. 209: «While intoxication is associated with a wide variety of offences, it is rarely recognised as a substantial mitigating factor when standing alone. In Kirkland a man of 21 with no previous convictions was sentenced to three years' imprisonment for setting fire to the home of hisformer employer. The Court accepted that the appellant was 'normally a level-headed young man' and that 'this offence came tobe committed because theappellant had had far too much to drink'; however, the offence was such that three years was the lowest term which would adequately reflect its 67 BoyadjlsJ . Police v. loannou

(1989)gravity,and 'thecourtsdonotnormallytakedrunkennessinto account as a mitigating factor'. The sentence was upheld. In Kirk the appellant wassentenced to four years for stabbinga man in a fight, following his ejection from a club.The Court accepted that 'the appellant had too much to drink' but 5 upheld the sentence with the comment that 'whatever the situation, there was no justification for drawing a knife'. In Drever a man ofprevious good character broke intoa house in the early hours of the morning and raped the occupant, a single woman in her late fifties. Despite evidence that the 10 appellant had been drinking heavily during the evening before the offence, theCourt refused tovaryhissentence of seven years' imprisonment. Drunkenness, while having little or no independent mitigating effect, may add some marginal weight to other 15 more substantial mitigating factors.» InSentencing Lawand Practice,byC.K.Boyle and M.J.Allen, 1985Edition,weread the following atp.275: «Drunkenness, it would appear, will not be regarded as a mitigating factor {Paton [1982] Crim. L.R. 58), and hasbeen 20 described as anaggravating factor {Lindley[1980]2Cr.App. R. (S)3 Bradley [1980]2Cr.App.R. (S)12).» InR. v.Paton (supra)theappellant, ayoungman of22yearsof age, pleaded guilty to robbery and assault with intent torob. He had stolen 5p.from ayoungman whom hehadthreatened witha 25 knife and had punched him in the stomach. One hour later he threatened an elderly man with a knife demanding money from him.Heranawaywhenthemanretaliatedbythreateningtohitthe appellant withabottle.Atthetimeoftheoffence theappellantwas drunk. It was held that the offences were very serious and that 30 «anyone who takes a knife to another person in the course of a robberywouldgetnomercy,whetherhewasdrunkatthetimeor not.» The decision inPaulLindley (supra) affords an instance where drink was regarded as an aggravating matter. The charge against 35 the appellant was that he had in his house unlawfu'. sexual intercourse with his step daughter and her friend, both aged 14 whilstunder the influence ofdrink. Reference insomedetailshouldlastlybemadeonthesubjectof drunkenness to the decision in the case ofJohn William Bradley 40 68 2C.L.R. Policev. loannou BoyadJI· J. (supra), where the appellant, a youth of 18 of previous good character, punched a police officer in the face as the officer was arresting him on suspicion of stealing from a bookshop. He punchedasecond police officer when hewas takentoadetention 5 room.Hewas drunkatthetimeof theoffences. Hewas sentenced to six months' imprisonment. Holding that the sentence was entirely correct,the Lord Chief Justice said thefollowing atρ 13: 10 15 20 «The appellant, as Ihave indicated, received six months' immediateimprisonment.ThisCourtfinds nothinginthecase to indicate thatthatsentence was otherthanentirely correct. Itis said that he was in drink. So he was. But the day is long past when somebody can come along and say Ίknow Ihave committed these offences, but I was full of drink.' Ifthedrink isinducedby himself,thenthere isnoanswer atall. Itissaidit isoutof character.So itwas. Hehasacleancharacter.Hehas noprevious convictions atall. Itwas said thatheisagood son of hismotherandhe has a number of otherskillsas a citizen. The plain fact is thaton thisafternoon he behaved himself in such a manner as to make it absolutely imperative that some suitable condign punishmentshould be imposed upon him.Thatwas done andthe appeal isdismissed.» Itfollows from the above thattheself imposed drunkenness of the respondent, which in the circumstances of the present case stands alone, deserves very little, if any, weight as a mitigating 25 factor. By applying the recent English approach, it deserves no weight atall. Yet, judging from the fact that, in its reasons for the sentence imposed, the trial Courtmade more thanonce specific reference to the drunkenness of the respondent as a mitigating factor, and from the kind of sentencewhich itultimately imposed 30 on the respondent, it is evident that it had attributed to the respondent's plea of drunkenness undue weight. The trial Courthas also erred inattributing undueweight tothe fact, asitputit,thattherespondentconfessed hisguilt immediately to thepolice and totheCourt. Although some allowance should 35 be made in all cases where an accused person pleads guilty,the confession tothepolice andthepleaof guilty of therespondentin this case must be evaluated in the light of the fact that he committed the offence in the eyes of thousands of persons and, though itwas evident thatitwas impossible for himsuccessfully to 40 deny hisguilt, hisfirst reaction tohis arrest by thepolicemen who had chased him was to let him go. A confession made in the 69 Boyadjla J. Police v. loannou

(1989)present circumstances, where no other alternative isopen to the offender, should carry very littleweight as a mitigating factor for the simple reason that the principle that sentences, even for seriousoffences, should notbesuch astodiscouragepeople from making a clean breast of what they have done, when they are 5 arrested by the police and from helping the police to undo the consequences of their law-breaking or to bring to justice their accomplices, has no application. For all the above reasons we are satisfied that, in assessing sentence inthepresentcase,thetrialCourthaserredtoomuch on 10 thesideofleniencyand thatthesentence which ithasimposed is so manifestly inadequate and wrong in principle that has to be reconsidered under the provisions of section 145

(2)of the Criminal Procedure Law, Cap. 155. By attributing the proper weight to all relevant factors 15 applicable in this case including all matters personal to the re^Dondent which, however, should not be allowed to outweigh the requirement of properly applying the law, we have reached the conclusion that a sentence of immediate imprisonment is inescapable. Only a sentence of imprisonment would meet the 20 requirement ofindicatinginthemostpracticalwaytheseriousness of the offence in the circumstances in which the respondent has committed it and of acting as deterrent to other potential offenders, Regarding the term of the sentence we think that it is not 25 necessary that it be long. We agree in this respect with the judgment ofLordLaneC.J.inR. v.Gingell[1980]Crim.L.R.661, which appears to suggest that shorter sentence of imprisonment, incasesofviolence,maysuffice wheretheoffence canbeseen,as in the present case, as an isolated and spontaneous occurrence 30 and not as associated with hooliganism. A term of 6 weeks' imprisonment out of the maximum of 52 weeks' imprisonment provided bylaw is,inourview, sufficient. We,therefore,allowtheappeal,setasidethesentence imposed by the trial Court and we substitute it with a sentence of 35 imprisonment forsixweeksto ru»from today. Appeal allowed. Sentence of the District Court substitutedas above. 70