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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1983) 2 CLR 345
1983 December 15
[A. LOIZOU, DEMETRIADES, SAVVIDES, J J.]
THE ATTORNEY-GENERAL OF THE REPUBLIC,
Appellant,
v.
1. MARIOS MICHAEL CONSTANTINOU YIALLOURIS.
2. KYRIACOS MICHAEL CONSTANTINOU YIALLOURIS.
ALIAS KOULLIS,
Respondents.
(Criminal Appeals Nos. 4403-4404).
Criminal Procedure—Appeal against sentence by the Attorney-General of the Republic—Court of Appeal empowered to substitute one type of sentence with another—Section I45(3)(b)(i) of the Criminal Procedure Law, Cap 155.
Criminal Law—Sentence—Inadequacy—Three months' imprisonment, suspended for three years, for obtaining goods and credit by false pretences—13 other outstanding cases for offences of inter alia, threatening violence, stealing, forgery and obtaining credit by false pretences taken into consideration—Sentence manifestly inadequate—Increased to one year's imprisonment.
Criminal Procedure—Trial in criminal cases—Previous convictions — To be properly proved and recorded by the Court.
The respondents pleaded guilty to two counts of the offences of obtaining goods by false pretences and obtaining credit by false pretences and they were each sentenced to three months' imprisonment, suspended for three years, on the first count and to £200 fine on the second count. Respondent 2 pleaded guilty to a count of forgery and was sentenced to pay a fine of £150. In addition to the above offences the respondents pleaded guilty to various offences in 13 outstanding cases in which they were charged of threatening violence, sending a message by telephone which was of a menacing character, common assault, stealing, obtaining credit by false pretences, forgery, criminal trespass, public insult and disorderly conduct. These offences were taken into consideration in passing sentence on the application of the accused and with the consent of the prosecution.
The Attorney-General of the Republic appealed against the above sentences on the ground that they were insufficient viewing the seriousness of the offences for which the respondents were found guilty and the severity of the sentence provided for by the law as well as the multitude of offences taken into consideration and the character of the respondents as revealed by all these offences.
Section 145(2) of the Criminal Procedure Law, Cap. 155, which covers the case of an appeal against sentence by an accused person, provides that "the Supreme Court may increase, reduce or modify the sentence", and section 145(3) which deals with an appeal against sentence by the Attorney-General provides that "the Supreme Court may, (i) increase the sentence, (ii) dismiss the appeal". Counsel for the respondent drew, the attention of the Court to the difference in the wording of the two subsections and submitted that in view of this difference and particularly the omission of the word "modify" from subsection 3 this Court has no power to change the character of the sentence but only to increase for example a monetary sentence into a bigger monetary one or a sentence of imprisonment into a longer sentence but not to substitute a sentence of fine with one of imprisonment.
Respondent 1 was 33 years of age, married with two minor children and respondent 2 was 26 years old. Although reference was made to the existence of previous convictions during the last five years no details of these convictions appeared on the record and the respondents were treated by the Court of Appeal as first offenders.
Held, (1) that the word "increase" to be found in para (b)(i) of section 145(3) of Cap. 155 has been consistently understood by this Court,—more so, to say the least, since Independence and the enactment of section 25(2) of the Courts of Justice Law 1960, (Law No. 14 of I960)—as empowering it on appeal to substitute one sentence with another; accordingly the contention of counsel should fail.
(2) That though this Court should be very slow in disturbing sentences imposed by trial Courts and it should abstain from doing so unless there are sufficiently strong grounds, that is, they are either manifestly excessive or inadequate or wrong in principle, in the present case considering the seriousness of the offences in respect of which the two respondents were found guilty on their own plea and the number of outstanding offences admitted to have been committed by them and taken into consideration by the trial Judge in passing sentence, the persistence in their commission and the threatening conduct of the respondents that it was at times exhibited especially when demand for payment from them was made and paying due regard to their personal circumstances and the time that has passed since the commission of the offences, and the anxiety suffered because of the suspension for a long time of this appeal, this Court has come to the conclusion that the sentence imposed by the learned trial Judge was manifestly inadequate in the circumstances; accordingly the appeal will be allowed and the sentences be increased by substituting those imposed with the following:
Respondent 2— One year's imprisonment on counts I (Accused No. 1) and 3 to run concurrently. No sentence passed on count 2.
Respondent 1— One year's imprisonment on the first count.
(Accused No. 2) No sentence passed on the second count as arising out of the same set of facts and as the component parts of the first count form part and parcel of the second one.
Appeal allowed.
Observations: We would have expected when the prosecution relies on previous convictions to have them one by one read out to the accused and the Court record them, if the accused admits them or in case he does not, do so only if they are properly proved to the satisfaction of the Court. A general reference in the record makes the task of this Court, which has to decide a case on appeal on the facts as appearing in the record difficult.
Cases referred to:
Attorney-General of the Republic v. Kouppis and Others, 1961 C.L.R. 188;
Attorney-General of the Republic v. Kouppi, I R.S.C.C. 115;
Attorney-General of the Republic v. Vassiliotis alias Kaizer
and Another (1967) 2 C.L.R. 20;
Improvement Board of Kaimakli v. Sevastides (1967) 2 C.L.R.177
Vine Products Board v. Touttoulla; (1982) 2 C.L.R. 112;
Municipality of Larnaca v. Madellas (1982) 2 C.L.R. 177.
Appeal against sentence.
Appeal by the Attorney-General of the Republic against the inadequacy of the sentence imposed on the respondents who were convicted by the District Court of Limassol (Case No.18817/82) of the offences of obtaining goods by false pretences contrary to sections 279, 298 and 20 of the Criminal Code, Cap. 154, of obtaining credit by false pretences contrary to sections 301(a) and 20 of the Criminal Code, Cap.154 and of forgery contrary to sections 331, 333(c), 335 and 20 of the Criminal Code, Cap. 154 and were sentenced by Fr. Nicolaides, Ag.S.D.J. to three months' suspended sentence of imprisonment for a period of three years, and to a fine of £200.- each on count 2 and respondent 2 to pay £150.- fine on count 3.
A. Vassiliades, for the appellant.
G. Cacoyannis, for the respondents.
Cur.udv. vult.
A. LOIZOU, J. read the following judgment of the Court. This is an appeal by the Attorney-General of the Republic under section 137(1)(b) of the Criminal Procedure Law, Cap. 155, against the sentences imposed on the two respondents by the District Court of Limassol on the ground that such sentences were insufficient viewing the seriousness of the offences for which they were found guilty and the severity of the sentence provided for by the law as well as the multitude of offences taken into consideration and the character of the respondents as revealed by all these offences.
The two respondents together with ex accused No. 3, their employee, were prosecuted before the District Court of Limassol, charged, and on their plea found guilty for the following offences:-
"STATEMENT OF OFFENCE
Obtaining goods by false pretences, contrary to sections 297, 298 and 20 of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The accused No. 1 and 2 on the 22nd day of December, 1981, at Limassol in the District of Limassol by false pretences and with intent to defraud, did obtain from StellakisAndronikou of Nicosia in his capacity as the salesman of "Andreas &MariosChristofides" 10x12 bottles of "FAMOUS GROUSE" whisky, value at £574, the false pretences being in substance and to the effect that Accused 1 issued to the StellakisAndronikoucheque No. 35-12562 drawn by the Bank of Cyprus in the name of Andreas &MariosChristofides for the sum of £100 as in advance for the purchase of the said goods pretending the said cheque was good and valid one, whereas in fact and in truth the account of Accused No. 1 had no money.
STATEMENT OF OFFENCE
Obtaining credit by false pretences, contrary to sections 301(a) and 20 of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The Accused No. 1 & 2 on the 22nd day of December, 1981 at Limassol, in the District of Limassol, in incurring debt or liability to StellakisAndronikou of Nicosia, did obtain credit to the sum of £574 from the said StellakisAndronikou by false pretences.
STATEMENT OF OFFENCE
Forgery, contrary to sections 331, 333(c), 335 & 20 of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The Accused No. 1 & 3 between the 22nd day of February, 1982 and 8th day of June, 1982, at Limassol, in the District of Limassol, with intent to defraud one StellakisAndronikou of Nicosia, did forge a document, to wit, a payment receipt, by introducing into the said document, without authority matter which if it had been authorised would had altered the effect of the said document, to wit, they (Accused) added to the said payment receipt the figure '5' in front of the figure '20' thus making the said receipt to be for the sum of £520 instead of £20 and added also 'ypolipontim.01124 £54.000 mils'".
There were also criminal proceedings pending in respect of a number of outstanding more or less offences which the two respondents admitted to have committed and with the consent of the prosecutor the Court was asked and indeed did take them into consideration in passing sentence. In the course of relating briefly those facts inevitably, reference will be made to the facts of all those outstanding offences so taken into consideration that they do not emerge from the particulars given.1
The two appellants are brothers and they jointly manage a place of entertainment known as "FARAOH" in Limassol, whereas ex accused No. 3 worked for them as a cashier. On the 22nd December, 1981, the complainant who is a sales manager of the firm "Andreas &MariosChristofides" importers of whisky of the brand "FAMOUS GROUSE" at the request of the first respondent visited their place of entertainment and they purchased whisky to the value of £574, for which they issued a cheque on the Bank of Cyprus for the sum of £100, and a receipt was given to thern for that payment. It was later discovered that the bank account which was kept by the first respondent was overdrawn beyond the permissible limit and had not been used since November 1981. When this cheque was not honoured by the bank the complainant visited the two respondents, informed them about it and asked them to pay him the £100, and give him £20, every time he would come to Limassol. The two respondents issued to the complainant a cheque for £40, and gave him £20, in cash. The new cheque again was not honoured and when he asked them to pay him they told him that he had been paid off. When they were arrested a receipt was found in their possession which had been forged by the second respondent and ex accused 3, by changing the figure of £20, into £520. Until the date of the trial with the exception of the amount of £60, no other sum was paid.
In case number 18818/82 the two respondents are charged with the following offences which they admitted to have committed.
"STATEMENT OF OFFENCE
First Count
Threatening violence, contrary to section 91(c) of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The accused No. 1 on a date to the Prosecution unknown during the months of January-February, 1982, at Limassol in the District of Limassol, with intent to cause one PhivosChristouHasabis of Limassol to omit to do an act which the said PhivosChristouHasabis was legally entitled to do, did threaten him with injury to his property by saying to him in substance and to the effect the following: 'MIN TA YAZIS MAZI MAS DIOTI EMIS ME MIA POMPA OPOS INE TA GAZIA STO DIPLANO IKOPEDO MPOROYMEN NA KAMOMEN OLOKLl.RO TO TETRAGONO HARTOMANIA KE NA MIN MAS XANAENOHLISIS'.
STATEMENT OF OFFENCE
Second Count
Sending a message by telephone which was of menacing character contrary to section 22(a) of the Telegraphs Law, Cap. 305 as amended by Law 62 of 1962.
PARTICULARS OF OFFENCE
The accused No. 1 on a date to the Prosecution unknown during the months of January-February, 1982, at Limassol, in the District of Limassol, did send a message by telephone to PhivosChristouHasabis of Limassol which was of menacing character.
STATEMENT OF OFFENCE
Third Count
Threatening violence, contrary to section 91(c) of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The accused No. 2 on a date to the Prosecution unknown, during the months of January-February, 1982, at Limassol, in the District of Limassol, with intent to cause one PhivosChristouHasabis of Limassol to omit to do an act which the said PhivosChristouHasabis was legally entitled to do, did threaten him with injury to his person by saying to him in substance and to the effect the following EGO TONKERON TON FASARTON ESKOTOSA ANTHROPOID".
Respondent No. 2, who was accused No. 1 at the trial admitted to have committed the two offences contained in case No. 18819/82 which were also taken into consideration by the Court, and which are the following:
"STATEMENT OF OFFENCE
First Count
Threatening violence, contrary to section 91(c) of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The accused on a date to the Prosecution unknown between the 1st and 16th day of August, 1981, at Limassol, in the District of Limassol, with intent to cause one Robert Yenovkian of Limassol to omit to do an act which the said Robert Yenovkian was legally entitled, to do, did threaten him with injury to his property by saying to him in substance and to the effect the following: 'DEN THA PIASIS TIN SYSKEVIN SOU NA FYGIS POUDAME, PROSEXE AN ERTHO STO MAGAZI SOU THA SOU TA KAMO ISIA-ISIA'.
STATEMENT OF OFFENCE
Second Count
Common Assault, contrary to section 242 of the Criminal Code, Cap. 154 as amended by Law, 4 of 1974.
PARTICULARS OF OFFENCE
The accused on a date to the Prosecution unknown, between the 1st and 16th day of August, 1982, at Limassol, in the District of Limassol, did unlawfully assault one Robert Yenovkian of Limassol."
In case No. 18820/82 the two respondents were charged as follows:
"STATEMENT OF OFFENCE
First Count
Stealing, contrary to sections 255, 262 and 20 of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The accused between the 16th and 17th day of December, 1981, at Limassol, in the District of Limassol, did steal 50 golden pounds of MAKARIOS III, valued at £2,200.-the property of GeorghiosChristouPapadopoullos of Limassol.
STATEMENT OF OFFENCE
Second Count
Stealing, contrary to sections 255 and 252 of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The accused No. 1 between the 16th and 17th day of December, 1981, at Limassol, in the District of Limassol, did steal a checking for counterfeit dollars machine, valued at £25.-, the property of GeorghiosChristouPapadopoullos of Limassol".
Likewise this case was also taken into consideration.
In case No. 18821/82 they were charged as follows:
"PARTICULARS OF OFFENCE
The accused during the month of February, 1982, at Limassol in the District of Limassol, in incurring debt or liability to one Christoforos Costa Sisamos of Limassol, did obtain credit to the amount of £120.- from the said Christoforos Costa Sisamos of Limassol, by false pretences".
In case No. 18822/82 they were charged as follows:
"STATEMENT OF OFFENCE
First Count
Stealing, contrary to sections 255, 262 and 20 of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
In the District of Limassol did steal 41x12 bottles of White Horse whisky, valued at £232.-, 51x24 bottles 1/2 whisky White Horse, valued at £315.-, 21 x48 bottles of 1 /4 of White Horse whisky, valued at £130.-, 1x12 bottles of Champ., valued at £55.200 mils, 6 bottles, of LOGAN whisky, valued at £39.- 6 bottles of Cream of Menthe, valued at £34.-, 6 bottles of B. Campari, valued at £39.900 mils, two bottles of NAPOLEON brandy, valued at £23.300 mils and three bottles of GLEN ELGIN whisky, valued at £22.050 mils, all amounting to £890.450 mils, the property of KyriakosYianniManousios of Kato Polemidhia".
In case No. 18823/82 respondent 1 was charged as follows:
"STATEMENT OF OFFENCE
First Count
Obtaining credit by false pretences, contrary to section 301(1) of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
In the District of Limassol in incurring debt or liability to one CostakisDemetriouPanayides of Nicosia, did obtain credit to the amount of £50.- from the said CostakisDemetriouPanayides of Nicosia, by false pretences.
STATEMENT OF OFFENCE
Second Count
Stealing, contrary to sections 255 and 262 of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The accused No. 1 between the 22nd day of April, 1982 and the 17th day of May, 1982, at Limassol, in the District of Limassol, did steal the sum of £48.-, the property of HaralambosLavidhas of Nicosia".
And jointly with ex accused 3 on a third count as follows:
"STATEMENT OF OFFENCE
Third Count
Forgery, contrary to sections 331, 333(a), 335 and 20 of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The accused on the 27th day of August, 1982, at Limassol, in the District of Limassol, with intent to defraud one HaralambosLavidhas of Nicosia, did make a false document purpurting to be what in fact was not, to wit, they (accused) made a receipt that HaralambosLavidhas of Nicosia owed to PHARAOH night club the sum of £420.- which sum of money was received by the said HaralambosLavidhas for the payment of an armonio".
In case No. 18825/82 the two respondents jointly with ex accused No. 3 were charged and admitted having committed the first count thereof which is the following:
"STATEMENT OF OFFENCE
First Count
Stealing, contrary to sections 255, 262 and 20 of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The accused on the 31st day of December, 1981 at Limassol, in the district of Limassol did steal the articles as shown on the attached appendix, to the total value of £477.475 mils, the property of GeorghiosDemosthenous of Limassol".
In case No. 18826/82 respondent 2 jointly with ex accused 3, were charged on a number of counts for forgery contrary to sections 331, 333(c) and 335 of the Criminal Code, Cap. 154. The complainant in that case was a client of the respondents, he was having drinks and signing receipts. The two respondents had printing work done by the complainant and they owed to him an amount of about £1,138, whereas the complainant owed them about £500. When he asked for a settlement of the accounts they produced to him the receipts he had signed which had their figure forged so that they would make up an amount equal to what they owed to him.
In case No. 18827/82 the two respondents were charged as follows: .
"STATEMENT OF OFFENCE
First Count
Obtaining credit by false pretences, contrary to sections 301(a) and 20 of the Criminal Code,: Cap. 154.
PARTICULARS OF OFFENCE
The accused on the 11th day of September, 1981, at Larnaca in the district of Larnaca, in incurring debt or liability to OTHON GALANOS & SON LTD., did obtain credit to the sum of £1,138.- from the said OTHON GALANOS & SON LTD., by false pretences".
In case No. 18828/82, respondent 2 was charged as follows:
"STATEMENT OF OFFENCE
Sending a message by telephone which was of menacing character, contrary to section 22(a) of the Telegraphs Law, Cap. 305 as amended by Law, 62 of 1962.
PARTICULARS OF OFFENCE
The accused on the 28th day of May, 1981 at Limassol, in the district of Limassol did send a message by telephone to one ChristoforosHaralambousMalakasas of Limassol which was of menacing character".
In case No. 18829/82 the two respondents were charged as follows:
"STATEMENT OF OFFENCE
First Count
Threatening violence, contrary to section 91(c) of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The accused No- 1 on a date to the Prosecution unknown, during the month of January, 1981, at Limassol, in the District of Limassol with intent to cause one NeophytosAristedouHeracleous of Limassol to omit to do an act which the said NeophytosAristedouHeracleous of Limassol was legally entitle to do, did threaten him with injury to his person by saying to him in substance and to the effect the following: 'MIPOS KAMIS TETIO PRAGMA KE MOU NEKATOSIS DIKASTIRIO GIATI ALIMONO SOU'.
STATEMENT OF OFFENCE
Second Count
Threatening violence, contrary to section 91(c) of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The accused No. 2 on a date to the Prosecution unknown, during the month of January, 1981, at Limassol, in the District of Limassol, with intent to cause one NeophytosAristedouHeracleous of Limassol to omit to do an act which the said NeophytosAristedouHeracleous was legally entitled to do, did threaten him with injury to his person by saying to him in substance and to the effect the following: 'EAN KINISIS AGOGI TOU ADELFOU MOU THA SOU VALO MIAN POMPOUAN KE NA SE ANA-TINAXO OPOU DJIAN EVRISKESE' ".
This case arose out of the wish of the complainant, who was a partner in the business of the two respondents and withdrew from the partnership, to bring an action in order to recover certain money from the business and he was threatened as per the charge.
In case No. 18830/82, respondent No. 2 was charged as follows:
"STATEMENT OF OFFENCE
First Count
Criminal Trespass, contrary to section 280 of the Criminal Code, Cap. 154.
PARTICULARS OF OFFENCE
The accused on the 21st day of April, 1982, at Limassol in the district of Limassol did enter into an office of the Electricity Authority of Cyprus in the possession of DemetriosVasiliou of Limassol, with intent to annoy.
STATEMENT OF OFFENCE
Second Count
Common Assault, contrary to section 242 of the Criminal Code, Cap. 154 as amended by Law 4 of 1974.
PARTICULARS OF OFFENCE
The accused on the 21st day of April, 1982 at Limassol, in the District of Limassol, did unlawfully assault one DemetriosVasiliou of Limassol.
STATEMENT OF OFFENCE
Third Count
Public Insult, contrary to section 99 of the Criminal Code, Cap. 154 as amended by Law 4 of 1974.
PARTICULARS OF OFFENCE
The accused on the 21st day of April, 1982, at Limassol, in the District of Limassol, in a public place, to wit, in the office of the Electricity Authority of Cyprus, did insult one DemetriosVasiliou of Limassol with the words Pezevengi, gamimene' in such a manner as would be likely to provoke any person present to commit an assault.
STATEMENT OF OFFENCE
Fourth Count
Disorderly conduct, contrary to section 188(d) of the Criminal Code, Cap. 154 as amended by Law 4 of 1974.
PARTICULARS OF OFFENCE
The accused on the 21st day of April, 1982, at Limassol, in the District of Limassol, in a public place, to wit, in the pay office of the Electricity Authority of Cyprus, did conduct himself in a manner likely to cause a breach of the peace".
In case No. 18831/82 respondent No. 2 is charged as follows:
"STATEMENT OF OFFENCE
First Count
Sending a message by telephone which was grossly offensive and of menacing character, contrary to section 22(a) of the Telegraphs Law, Cap. 305 as amended by Law 62 of 1962.
PARTICULARS OF OFFENCE
The accused on the 26th day of January, 1982 at Limassol in the district of Limassol did send a message by telephone to one KlitosYiannakas of Limassol which was grossly offensive and of menacing character".
Counsel for the respondent has drawn the attention of the Court to the difference in the wording of subsection 2 and subsection 3(b) of section 145 of the Criminal Procedure Law, Cap. 155. Subsection 2, which covers the case of an appeal against sentence by an accused person, provides that "the Supreme Court may increase, reduce or modify the sentence", whereas in determining an appeal by or with the sanction of the Attorney-General from a judgment on the ground that the sentence was insufficient, paragraph (b) of subsection 3 provides that "the Supreme Court may, (i) increase the sentence; (ii) dismiss the appeal".
It was argued that in view of this difference in the wording and particularly the omission of the word "modify" from paragraph (b) of subsection 3 of the said section, this Court has no power to change the character of the sentence but only to increase for example a monetary sentence into a bigger monetary one or a sentence of imprisonment into a longer sentence but not to substitute a sentence of fine with one of imprisonment or to take away the suspended character of a sentence of imprisonment.
We do not subscribe to this view. The word "increase" to be found in para, (b)(1) of section 145(3) has been consistently understood by this Court,—more so, to say the least, since Independence and the enactment of section 25(2) of the Courts of Justice Law, 1960 (Law No. 14 of 1960)—as empowering it on appeal to substitute one sentence with another and this is apparent in a number of cases to some of which brief reference may be made.
In the case of The Attorney-General of the Republic v. Kyriacos Nicola Kouppis& Others, 1961 C.L.R. 188, the three accused were sentenced to a fine on charges relating to carrying and use of firearms and explosives. The appeal by the Attorney-General against the said sentence imposed on each accused was allowed and the sentence was, as put by Zekia, J., "varied and a sentence of six months' imprisonment" was "substituted". (See also The Attorney-General of the Republic v. Kouppi, 1 R.S.C.C. 115).
In the case of The Attorney-General v. Vassiliotis, alias Kaizer and Another (1967) 2 C.L.R., p. 20, a sentence of fine for stealing was set aside and sentence of imprisonment substituted thereof.
In the case of the Improvement Board of Kaimakli v. Seva-stides (1967) 2 C.L.R., p. 117, an appeal by the prosecuting authority against sentence as being manifestly inadequate taken under section 25(2) of the Courts of Justice Law 1960 with the sanction of the Attorney-General under section 137(1)(b) of the Criminal Procedure Law, the sentence of £25.- imposed by the trial Court was altered so as to contain also a demolition order for the part of the building constructed without the necessary permit in respect of which the respondent was prosecuted and convicted on such count. Likewise in the case of Vine Products Board v. Demetra A. Touttoula (1982) 2 C.L.R. 112, an uprooting order was made on appeal under the Vines Industry (Regulation and Control) Law, 1965, and more recently in the case of the Municipality of Larnaca v. PetrosMadellas (1982) 2 C.L.R. p. 177, where on appeal a demolition order under the Streets and Buildings Regulation Law was added to the sentence imposed by the trial Court.
Respondent 1 is 33 years of age, married with two minor children and respondent 2 is 26 years old. In addition to their own family obligations they support their aged parents. They had been running this night club "Pharaoh" for nine months but they did not do very well in their business and that was apparently the cause of all the trouble. Although reference is made to the existence of previous convictions during the last five years and that respondent 1 had three previous convictions and respondent 2 four, yet no details, as there ought to be given, appear on the record. We would have expected when the prosecution relies on previous convictions to have them one by one read out to the accused and the Court record them, if the accused admits them or in case he does not, do so only if they are properly proved to the satisfaction of the Court. A general reference in the record makes the task of this Court, which has to decide a case on appeal on the facts as appearing in the record, difficult' and in all fairness to the two respondents we might as well say now that we intend to treat them for all intents and purposes as first offenders.
The two respondents were each sentenced on the first count to three months' imprisonment suspended for a period of three years, and on the second count to £200.- fine and on the third count respondent 2 was ordered to pay £150.- fine. In respect of this count ex accused 3 was ordered to pay £100.- fine. The costs amounting to £22.550 mils were ordered to be paid in equal shares by the three accused.
We do not intend to restate the principles upon which this Court will interfere with sentences. Suffice it to say that this Court should be very slow in disturbing sentences imposed by trial Courts and it should abstain from doing so unless there are sufficiently strong grounds, that is, they are either manifestly excessive or inadequate or wrong in principle.
In the present case we have considered the seriousness of the offences in respect of which the two respondents were found guilty on their own plea and the number of outstanding offences admitted to have been committed by them and taken into consideration by the trial Judge in passing sentence, the persistence in their commission and the threatening conduct of the respondents that it was at times exhibited especially when demand for payment from them was made. We have paid due regard to their personal circumstances and the time that has passed since the commission of the offences, and the anxiety suffered because of the suspension for a long time of this appeal, and we have come to the conclusion that the sentence imposed by the learned trial Judge was manifestly inadequate in the circumstances. We allow the appeal and we, therefore, increase the sentences by substituting those imposed with the following:
|
Respondent 2 (Accused No. 1) |
One year's imprisonment on counts 1 and 3 to |
|
— run concurrently. No sentence passed on count 2. | |
|
Respondent 1 (Accused No. 2) |
One year's imprisonment on the first count |
|
— No sentence passed on the secondcount as arising out of the same set of facts and as the component parts of the first count form part and parcel of the second one. |
Costs of prosecution to be paid out of public funds.
Appeal allowed.