|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1980) 2 CLR 96
1980 March 26
COSTAKIS COSMA NONI,
v.
THE REPUBLIC,
Respondent.
(Criminal Appeal No. 4121).
Military offences—Sentence—Four months' imprisonment for failing to enlist in the National Guard—Appellant of young age, a first offender, of good character and in the last year of his studies in a Secondary School—Though sentence not wrong in principle, period of imprisonment ought to be such as to fit appellant's personal circumstances and special facts of this case and appellant be given the chance to complete last year of his studies—Sentence manifestly excessive—Reduced.
The appellant pleaded guilty to the offence of failing to enlist in the National Guard and was sentenced to four months' imprisonment. He was born in 1960 and besides being a first offender and of good character it was established before the military Court that he was a student of the 2nd Technical School of Nicosia being in the third and last year of his studies.
Upon appeal against sentence counsel for the appellant submitted that the Military Court did not give due weight to the fact that the appellant was in the third and last year of his studies and, furthermore, that he might be exempted from military service had he applied properly to the Minister of Interior and Defence to this effect.
Held, that although the sentence of imprisonment which was imposed on the appellant is not wrong in principle, and this Court is in agreement with the Military Court that the offence which he has committed is indeed of a serious nature, yet, on the other hand, the period of his imprisonment ought to be such as to fit his personal circumstances and the special facts of this case; that the appellant being of young age, a first offender and of good character, should be given the chance to complete the last year of his studies; that, therefore, a sentence of four months' imprisonment in the present case is manifestly excessive and so it should be reduced in a manner enabling the appellant, who has been in prison for more than one month to be released today.
Appeal allowed.
Appeal against sentence.
Appeal against sentence by Costakis Cosma Noni who was convicted on the 21st February, 1980 by a Military Court sitting at Larnaca (Case No. 332/79) on one count of the offence of failing to enlist in the National Guard, contrary to section 22(l)(a) of the National Guard Laws 1964 to 1978 and was sentenced to four months' imprisonment.
E. Efstathiou, for the appellant.
Cl. Antoniades, Counsel of the Republic, for the respondent.
MALACHTOS J. gave the following judgment of the Court. The appellant has appealed against the sentence of four months imprisonment as from 21.2.1980 imposed on him by a Military Court sitting at Larnaca, after he pleaded guilty to the offence of failing to enlist in the National Guard contrary to section 22(1)(a) of the National Guard Laws 1964 to 1978.
The appellant, who comes from Xylophagou village of the Famagusta District, was born in 1960 and according to section 4(1) of the National Guard Laws, belongs to the 1978 Class. On the 9th day of January, 1979, he was called up for conscription but he failed to do so.
On the 26th June, 1979, he was arrested and when formally charged he replied that he did not present himself for conscription due to the fact that he is a Martyr of Jehova and for this he had no obligation to join the National Guard.
Besides being a first offender and of good character it was established before the Military Court that the appellant was a student of the 2nd Technical School of Nicosia being in the third and last year of his studies.
The Military Court in imposing the sentence of four months imprisonment on the appellant, after referring to the offence as a very serious one, concluded at page 14 of the record as follows:
"You come today and you tell us that you are a student and through your counsel you ask us to take this into consideration so that no sentence of imprisonment should be imposed on you, which, as you say, will ruin your future. We regret but we do not accept this view of yours.
We take into account that you are of young age and that you have got a clean criminal record and for this we shall be very lenient with you but we cannot but impose on you a sentence of imprisonment".
Counsel for the appellant submitted that the Military Court, as it appears from its judgment, did not give due weight to the fact that the appellant was in the third and last year of his studies and, furthermore, that he might be exempted from military service had he applied properly to the Minister of Interior and Defence to this effect.
Although we are of the opinion that the sentence of imprisonment which was imposed on the appellant is not wrong in principle, and we are in agreement with the Military Court that the offence which he has committed is indeed of a serious nature, yet, on the other hand, we think that the period of his imprisonment ought to be such as to fit his personal circumstances and the special facts of this case. We are of the view that the appellant being of young age, a first offender and of good character, should be given the chance to complete the last year of his studies.
We have, therefore, reached the conclusion that a sentence of four months imprisonment in the present case is manifestly excessive and so it should be reduced in a manner enabling the appellant, who has been in prison for more than one month to be released today.
For the reasons stated above, this appeal is allowed accordingly.
Appeal allowed.