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ÐÁÃÊÕÐÑÉÏÓ ÄÉÊÇÃÏÑÉÊÏÓ ÓÕËËÏÃÏÓ
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(1980) 2 CLR 126
1980 May 17
[TRIANTAFYLLIDES, P., L. LOIZOU, HADJIANASTASSIOU, JJ.]
ANASTASSIS SAVVA,
Appellant,
v.
DIRECTOR OF SOCIAL INSURANCE SERVICES,
Respondent.
(Criminal Appeal No. 4137).
Criminal Law—Sentence—Failure to pay social insurance contributions—One month's imprisonment—Appellant's bad record of seventeen similar previous convictions—Significance—Seriousness of the offence—Mitigating factors—Payment of contributions before commencement of trial—Offences committed due to grave financial difficulties—Sentence reduced.
Social insurance—Failure to pay social insurance contributions—Sentence.
The appellant pleaded guilty to a count charging him with failure to pay social insurance contributions amounting to C£99 and was sentenced to one month's imprisonment. He, also, pleaded guilty to four other counts charging him with similar offences but no sentence was passed on him in relation to such counts. Between December 1974 and May 1979 the appellant has committed seventeen similar offences in respect of which he was sentenced to pay fines of various amounts but he has never been sent to prison.
Upon appeal against sentence:
Held, (after dealing with the seriousness of the offence and appellant's bad criminal record and its significance—vide p. 128 post) that though this was a case in which a sentence of imprisonment was called for and consequently the sentence is not wrong in principle the trial Judge failed to attribute due weight to the fact that the appellant on the same day on which he was taken before the Court, and before the commencement of his trial, paid off all the amounts in respect of which he was being charged; that this was a very strong mitigating factor indicating that the institution of criminal proceedings against the appellant had served well its purpose of securing the payment of the contributions due by him to the Social Insurance Fund and other similar Funds and it showed, also, that the appellant is a man who has full cognizance of his relevant responsibilities and does not have to spend a whole month in prison in order to be reformed; that, moreover, the Judge rejected without sufficient cause the allegation that appellant committed the offences with which he was charged, as well as those in respect of which he was convicted in the past, due to financial difficulties; that financial difficulties are a factor which may be properly taken into account in reducing a sentence in an appropriate case; and that, accordingly, the sentence will be reduced in such a way so that the appellant will be released to-day.
Appeal allowed.
Cases referred to:
"Machi" Ltd., v. Senior Insurance Officer (1967) 2 C.L.R. 305;
HjiNicolaou v. Police (1976) 2 C.L.R. 63 at pp. 69-70.
Appeal against sentence.
Appeal against sentence by Anastassis Savva who was convicted on the 28th April, 1980 at the District Court of Larnaca (Criminal Case No. 3241/80) on one count of the offence of failing to pay social insurance contributions, contrary to sections 3(a), 4(1)(2)(3), 6(4), 8(1), 57(c), 64(1)(2)(3)(4)(5)(8) and 68 of the Social Insurance Laws, 1972-1979 and regulations 5, 7, 8, 9 and 10 of the Social Insurance (Contributions) Regulations, 1972-1976 and was sentenced by Michaelides, D.J. to one month's imprisonment.
E. Efstathiou, for the appellant.
Cl. Antoniades. Counsel of the Republic, for the respondent.
Cur adv vult.
TRIANTAFYLLIDES P. read the following judgment of the Court. The appellant appeals against the sentence of one month's imprisonment which was passed upon him when he pleaded guilty to a count charging him with failure to pay, between March 4, 1980, and March 7, 1980, social insurance contributions in respect of the months of December 1979, and January 1980, amounting to C£99. He has, also, pleaded guilty to four other counts charging him with similar offences, but in relation to them the trial Court did not pass any sentence.
Counsel for the appellant has argued that a sentence of imprisonment, in the present instance, was a manifestly excessive sentence and wrong in principle.
Unfortunately, it is not the first time that the appellant has appeared before a Court in relation to offences of this nature; between December 18, 1974, and May 1, 1979, he has committed seventeen similar offences in respect of which he was sentenced to pay fines of various amounts, but he was not, as yet, sent to prison.
We have duly weighed the serious nature of the offences to which the appellant has pleaded guilty in the present instance, and of the offences in respect of which he has been convicted in the past; in this respect we agree with the views of Josephides J. in "Machi" Ltd. v. Senior Insurance Officer, (1967) 2 C.L.R. 305. Nor do we lose sight of the bad criminal record of the appellant; and as regards the significance of his previous convictions we share the view expressed by one of us, L. Loizou J., in HjiNicolaou v. The Police, (1976) 2 C.L.R. 63, in the following passage (at pp. 69-70):-
"The sentence imposed in a case is certainly a sentence for violation of the law in that case and nobody can be punished for a second time for the same offence; but previous convictions constitute an element which is of great importance in measuring punishment and should be taken into consideration by the Court, because they constitute an indication of the attitude and respect of the accused towards the laws of the State."
We are in agreement, therefore, with the learned trial Judge that this was a case in which a sentence of imprisonment was called for; consequently, we cannot regard it as a sentence which is wrong in principle. On the other hand, we are of the opinion that the trial Judge has failed to attribute due weight to the fact that the appellant on the same day on which he was taken before the Court, and before the commencement of his trial, paid off all the amounts in respect of which he was being charged by means of count 1—in relation to which he was sentenced to imprisonment—and by means of the other four similar counts. This was, indeed, a very strong mitigating factor indicating that the institution of criminal proceedings against the appellant had served well its purpose of securing the payment of the contributions due by him to the Social Insurance Fund and other similar Funds; and it showed, also, that the appellant is a man who has full cognizance of his relevant responsibilities and does not have to spend a whole month in prison in order to be reformed as the Judge seemed to think.
Furthermore, in our view, the Judge rejected without sufficient cause the allegation of counsel, who appeared for the appellant before him, that the appellant committed the offences with which he was charged, as well as those in respect of which he was convicted in the past, due to grave financial difficulties; and financial difficulties are a factor which may be properly taken into account in reducing a sentence in an appropriate case (see, in this respect, Thomas on Principles of Sentencing, 2nd ed., pp. 207-209).
In the light of all the foregoing we have, in the end, decided to interfere with the length of the sentence which was passed upon the appellant and to show to him all possible leniency, trusting that in future he will do his utmost to avoid finding himself in an unfortunate situation such as the present one. The appellant was sentenced to one month's imprisonment as from April 28, 1980, and he was kept in custody between the date on which he has pleaded guilty, that is on April 25, 1980, and the date on which he was sentenced, that is on April 28, 1980.
Bearing in mind all the time which the appellant has already spent in custody and in prison in relation to the present case, we have decided to reduce his sentence of imprisonment in such a way so that he will be released today.
This appeal is, therefore, allowed accordingly.
Appeal allowed.