(1989)l989Apnll4 (SAWIDES HJITSANGARRIS B0YADJ1S J J ) ANDREAS IGNATIOU, Appellant, ν 5 THE 0 U C E , Respondent (Cnminal Appeal No 5126) Sentence — Appeal — Pnnctplesgoverning interferenceby the Courtof appeal Sentence — Affraycontrarytosection89 of the CnminalCode, Cap 154 and disturbancecontrary to section 95 of the same code — Three months' impnsonment for thefirstand one month for thesecond and 5 activationof suspended sentence of impnsonment of two months imposed for assaultoccasioningactualbodilyharm — Inthepartic ularcircumstancesof thiscase, the sentence ismanifestly excessive. The wife of the appellant left him, taking the children of the mamage with her She co-habited with her boyfriend A number of incidents followed leading to the conviction of the appellant for the aforesaid assault, which he committed on his wife 10 The commission of the sub-judice offences took place when the appellant visited his wife's place of work in order to discuss family problems The wife's boyfnend came in and, there followed an 15 argument, followed by an invitation by the boyfnend of thewife of the appellant -togo outandsettle theirdifferences» (Πάμεν έξω να λογαριαοτοόμεν) -Therefollowed thecommission of the offences. ThetnalCourtmisdirected itselfintothinkingthattheappellant went to the wife's place of work,inorderto«re-claim» herfrom herboy- 2 0 fnend Most of appellant's previous convictions resulted from the grudge emanating from his wife's behaviour The Court of Appeal reduced thesentence of two month'simpnsonmenttoasentence of one month,did notpass asentence onthesecond count,butleft the activation of the suspended sentence unaffected 25 Appeal allowed 80 2CUR. Ignattouv.Police Casesreferredto: TryfonaaliasAlouposv. TheRepublic, 1961C.L.R. 246; Karaviotisandothersv. ThePolice
(1967)2C.L.R.286; Georghiouv.ThePolice
(1967)2C.L.R. 292; 5 Demetriouv.ThePolice
(1968)2C.L.R. 127; Leandrouv.ThePolice
(1971)2C.L.R.37; Kyprianouv.TheRepublic
(1971)2C.L.R. 158; Philippouv. Republic
(1983)2C.L.R. 245; Iroasv.TheRepublic
(1966)2C.L.R.116. 10 Appealagainst sentence. Appeal against sentence byAndreas Ignatiou whowasconvictedonthe20thMarch,1989attheDistrictCourtofPaphos{CriminalCaseNo.4934/88) on one countof the offence of affray contrarytosection 89ofthe Criminal Code, Cap. 154and one count 15 oftheoffence ofdisturbance contrarytosection20oftheCriminal Code, Cap. 154 and was sentenced by Miltiadous, D.J. to concurrenttermsofthreemonths'imprisonment andonemonth'simprisonment respectively. Appellant appeared in person. 20 A. M. Angelides, Senior Counsel of the Republic, for the respondents. SAWIDES J. gave the following judgment of the Court. The present appeal is directed against a sentence of three months'. imprisonment on a count charging the appellant with affray 25 contrary tosection 89oftheCriminalCode,Cap. 154(first count) and asentenceofone month'simprisonment onacount charging him with disturbance contrary to sections 95 and 20 of the same Law (second count) both torun concurrently, imposed upon him bytheDistrictCourtofPaphosafterhehad pleaded guiltytosuch 30 offences. The appeal isalsodirected against the order of the trial Court reactivating his suspended sentence of two months' imprisonment imposeduponhimon 17thMarch,1988,forassault occasioningactualbodily harm. 81 SawhtesJ. IgMtloa v.Police
(1989)Thecircumstances of thecommission of theoffences are shortly as follows: The appellant (accused 2 on the charge) together with his wife (accused 3) and her boyfriend (accused 1) were jointly charged with affray (count
(1))anddisturbance (count
(2)) towhich theyall pleaded guilty. 5 The appellant and his wife had been livingseparately as their marriage hadbroken down anumberofyearsago andhiswife was co-habiting with her boyfriend, accused 1, having left the family home and having taken the children of the marriage with her. 10 There were frequent quarrels between the appellant and his wife in respect of family matters which resulted to the commission by the appellant of a number of offences mainly assaults and affrays which led tohisconviction. Inrespect of one of them,thatofassa ultoccasioning actualbodily harm,he was sentenced onthe 17th 15 March, 1988, to two months' imprisonment suspended for three years. The wife of the appellant was employed at theAgapinor Hotel atPaphos.Onthe6thJune, 1988, theappellant went tothe place of heremployment for thepurpose,according totheprosecution, 20 of discussing with her some family problems in connection with theirchildren. Whilst there,accused 1, the person with whom his wife co-habited arrived there together with the motherof appel lant'swife. There was a row between them inthecourse of which accused 1 provoked the appellant by saying: «Let us go our to 25 clear out difference». (Πάμε έξω να λογαριαστούμε).They all went out of the hotel where the offences, to which all three ac cused pleaded guilty took place. Ithas been the allegation of the appellant before us thatinthecourse of such affray hismother-inlaw intervened and stabbed him with a clasp knife, a fact which 30 learned counsel fortherespondent,infairness totheappellantad mitted. ' ThetrialJudge, bearing inmindthefact thatbothaccused 1and the appellant had a number of previous convictions, imposed a sentence of three months' imprisonment on each one of them in 35 respect of count 1andonemonth'simprisonentoncount
(2),both sentences torunconcurrently.Alsohetookintoconsiderationthat both of them had previous suspended sentences of imprisonment theperiod ofsuspension of whichhadnotexpired and reactivated half of the imprisonment on the 1st accused (from six months to 40 three months)and thewhole of thetwo months'imprisonment of .82 2C U R . Ignatiouv.Police SawideeJ. appellant, such imprisonment to run after the expiration of the termofimprisonment imposed inthepresent case. Thefirstaccusedfiledalsoanappealagainsthissentencewhich, withthe leave of the Court, withdrew on the date ofthe hearing. 5 10 The learned trialJudge indealing with the facts of the case for the purpose ofsentence said, interalia,the following: «As it emanates from the facts of the case, the second accused isthelawful husband ofthethirdaccused whodesertedhimand co-habitswiththefirstaccused and indemanding her from him, they got mixed up in an affray and caused disturbance.» Wewish topoint outatthisstagethatwhat ismentioned bythe learned trial Judge that the appellant went there to demand his wife from the first accused isinconsistent with the facts as related 15 bythe prosecution which attributed thevisitoftheappellant tohis wife asbeinga visitfor discussing family problems. In the course of such discussion the first accused arrived there and shouted out to the appellant to get out of the hotel for the purpose of settling their differences. Thiswas,inthe circumstan20 ces,obviously an insinuation fora fight which infact followed. Counsel fortheappellant inaddressingthetrialCourtinmitigation made reference totheproblemsthe appellant had encountered due to the breakdown of the marriage, the desertion of his wife, her taking with hertheir children and depriving him of them 25 and her co-habitation with her lover.The conduct of hiswife, he added, had led him tothe commission of the offences appearing inthe listwhichareattributabletosuchconductand alltook place after 1985when his wife deserted him whereas before such date hehad aclean record. 30 35 The learned trialJudge after makingextensive reference to the previousconvictions oftheappellant concluded as follows: «Ihave carefully examined all the facts of the case before me and have taken into consideration what learned counsel fortheaccusedsaid inmitigationand Ihavereachedtheconelusionthattheonlyappropriatesentence foraccused
(1)and
(2)isthat of imprisonment. Bearing in mind the facts of the case, the personal circumstances of the accused and the long criminal record of accused
(1)and
(2)Isentence them ....» 83 S a w i d e e J. Ignatiou v.Police
(1989)Noreason isgiven bythelearned trialJudge whyinthecaseof thefirstaccused hissuspended sentences ofsixmonths'imprisonment forshop-breaking and stealing wasreactivated foronly part of it(three months)and inthecase oftheappellant hissuspended sentence of two months' imprisonment for assault occasioning bodilyharm wasreactivated forthewhole term. 5 Itiswell settled by our case law that primary responsibility for assessing sentence lieswiththe trial Court and thisCourt willnot interfere, on appeal, withthesentence asassessedbyatrialCourt excepton one of theaccepted grounds,vizthatthetrialCourthas 10 acted inamannerwhichiswronginprinciple,orthatthesentence ismanifestly excessive ortheCourthasmisdirected itself astothe essential facts orasto the law.(See,interalia, TryfonaaliasAloupos v.TheRepublic, 1961C.L.R.246;Karaviotis&Othersv.The Police
(1967)2 C.L.R. 286; Georghiou v. The Police
(1967)2 15 C.L.R.292;Demetriou v. ThePolice
(1968)2 C.L.R.127; Leandrouv.ThePolice
(1971)? C.L.R.37,38;Kyprianouv.The Republic
(1971)2C.L.R. 158,161; Philippou v. TheRepublic
(1983)2C.L.R. 245). Useful reference maybemadeinthisrespecttothecaseofIroas 20 v. TheRepublic
(1966)2 C.L.R. 116whereatpage 118the followingwere stated: «The Court ofAppealwillonlyinterfere withasentence so imposed, if iUsmade toappear from the record that the trial Court misdirected itself either on the facts or the law;or,that 25 the Court, in considering sentence, allowed itself to be influenced bymatterwhichshould notaffect thesentence;or,if it ismade to appear that the sentence imposed is manifestly excessive inthe circumstances of theparticular case.» Learned counsel for the respondent conceded inthiscasethat 30 there was provocation on the part of the first accused and that most o'f appellant's previous convictions do in fact relate to the grudge hehad withhiswife and herdesertion ofthe family home takingthe children with her to co-habit with accused 1. Alsothat the appellant, inthe course of the affray besides hiswife and her 35 lover,hadalsotofacetheattackofhismother-in-lawwho stabbed him. Itisapparent from the record that there was a misdirection by thelearnedtrialJudge onthefactsandinparticularastothecause oftheaffray. Fromthefactsbefore himtheprovocationofaccused 40 84 2 C.L.R. Ignatiou v. Police Sawide» J.
(1)wasapparent but the trialJudge instead found that thevisitof the appellant to the hotel was for the purpose of demanding his wife from accused
(1)with whom she wasco-habiting and not as stated bytheprosecution thatthevisitoftheappellant wasfor the 5 purpose of discussing with his wife family matters. Besides such misdirection we find that inthe circumstances of the present case thesentence imposedontheappellant ismanifestly excessiveand that we should interfere with it. The sentence on count
(1)is,therefore, reduced to one of one 10 month's imprisonment and we pass no sentence on count
(2). As to the order for reactivation of the two months' imprisonment we find no reason tointerfere withtheorder ofthetrialCourt and we leavesuch orderasitstands. Theappealisallowedandthesentenceisreduced accordingly. 15 Appeal allowed. Sentence reduced toone month. 85