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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1986) 2 CLR 134
1986 June 20
[A. LOIZOU, DEMETRIADES, PIKIS, JJ.]
AHMET HASSAN ZREKA AND OTHERS,
Appellants,
v.
THE REPUBLIC,
Respondent,
(Criminal Appeals Nos. 4705, 4707,
4708, 4709, 4710, 4711, 4713, 4719)
Sentence—Possession of controlled drugs (14 tons and 420 kilograms of cannabis resin)—Appellants not the master-minds, but their role in the commission of the offence a material one—Five years' imprisonment—Upheld.
The appellants were found guilty upon their own plea for possessing controlled drugs, namely fourteen tons and four hundred and twenty kilogram's of cannabis resin, with intent to supply them to other persons, contrary to ss. 2, 6(3), 30, 31 and 38 of Part II of the First and Third Schedules to the Narcotic Drugs and Psychotropic Substances Law 29/77 as amended by Law 67/83 and s. 5 of the Criminal Code, Cap. 154, as amended by s. 3 of the Territorial Waters Law 45/64.
At midnight of the 29.7.85 two small boats were sighted side by side at a distance of 10 miles from cape Pyla. The one was immediately stopped, but the other tried to escape, whilst from its deck sacks were being thrown into the sea. At about the same time another boat was noticed loaded with sacks which, upon that boat being approached, were also being thrown into the sea.The appellants were all on the two boats which were found to carry the sacks in question. In all 359 sacks were picked from the sea and found to contain the aforesaid quantity of cannabis resin.
The Assize Court sentenced the appellants to five years' imprisonment. The Assize Court found that the sailing of the three boats had been master-minded by four persons, who are not among the present appellants, but who were also prosecuted and fifth person referred to as Baker.
Appellants' complaint was that the Assize Court failed to meet out sentences that reflected the individual participation of the appellants in the commission of the offence.
Held, dismissing the appeals: (1) The Assize Court went in detail into the part played by each appellant in the commission of the offence and distinguished the culpability of those who master-minded the offence from that of the appellants, though, and rightly so, pointed out that the appellants' participation could not be insignificant, but a material one.
(2) This Court has repeatedly emphasized the seriousness of this kind of offences. Cyprus cannot be allowed to be turned into a transit camp for the horrible trade of narcotics. The possession, trafficking of and dealing with narcotics is a social evil against which a relentless war has to be waged. The Courts have to impose severe; sentences of imprisonment to stamp out this social evil.
Appeals dismissed.
Appeals against sentence.
Appeals against sentence by Ahmed Hassan Zreka and Others who were convicted on the 3rd December, 1985 at the Assize Court of Famagusta (Criminal Case No. 3455/ 85) on one count of the offence of unlawfully possessing controlled drugs contrary to sections 2, 6(2), 30, 31 and 38 of the Narcotic Drugs Law, 1977 (Law No. 29./77) and on one count of the offence of possessing controlled drugs for the purpose of supplying them to others contrary to sections 2, 6(3), 30, 31 and 38 of the above law and were sentenced by Papadopoulos, P.D.C., Constantinides, S.D.J. and Arestis, D.J. to five years' imprisonment on the latter count with no sentence being passed on the first count.
Appellants in Criminal Appeals 4705 and 4708 appeared in person.
C. Saveriades, for appellants in Criminal Appeals 4707, 4709, 4710, 4711, 4713 and 4719.
A. Frangos, Senior Counsel of the Republic, for the respondents.
Cur.adv. vult.
A. Loizou J. read the following judgment of the Court. The appellants were found guilty on their own plea of counts 3 and 4 on the information and sentenced by the Assize Court of Larnaca on the latter count to five years' imprisonment. No sentence was passed on them in respect of count 3.
They had, along with the remaining accused with whom they were jointly charged, entered a plea of not guilty, but in the course of the trial, with the leave of the Court, they changed their plea to one of guilty. The Assize Court, however, deferred imposing sentence until after the conclusion of the trial of those co-accused who had persisted in their plea of not guilty. In this way it had the advantage of acquainting itself with all the facts of the case as emanating from the evidence adduced and in the light of the findings made thereon. In addition it had the advantage of appreciating the extent of the contribution of each co-accused to the commission of the offence or offences for which they had all been charged.
Count 4, in respect of which the appellants were sentenced is for possessing controlled drugs, namely fourteen tons and four-hundred and twenty kilogram's of Cannabis Resin with the intent of supplying same to other per-sons, contrary to Sections 2, 6(3) 30, 31, and 38 of Part II of the First and Third Schedules to the Narcotic Drugs and Psychotropic Substance Law, 1977, (Law No. 29 of 1977), which came into force by virtue of Notification 137/79, as amended by Law No. 67 of 1983, and Section 5 of the Criminal Code, as amended by Law 3 of 1962 and section 3 of the Territorial Waters Law, 1964, (Law No. 45 of 1964).
The maximum sentence provided by Law for such an offence is 14 years' imprisonment. The facts of the case were found by the Assize Court in its judgment given in the case of the remaining co-accused who had entered a plea of not guilty. At midnight of the 29th July, 1985, an extensive operation was mounted by the appropriate forces of the Republic in the sea-area of Ayia Napa, near Cape Pyla. The Cyprus Navy vessel "Salamis" and the Marine Police Motor-launches "Aphrodite" and "Kimon" manned with members of the Marine Police and of the Mobile Unit for Immediate Action (MMAD), were patrolling the area. At about 9:50 a.m. on Saturday the 20th and at a distance of ten miles from Cape Pyla, there were observed proceeding westwards in a course parallel to the coast, two small boats side by side. The one was stopped by Police launch "Kimon" whereas the second did a 1800 degrees turn and started sailing away at full speed whilst from its deck, sacks were being thrown into the sea. The Navy vessel "Salamis" pursued the boat, called it to stop through its loud-speaker system and fired warning shots in the air. Eventually she caught up with her and arrested her nine miles from the coast of Cyprus whilst the crews of the other launches picked up the sacks thrown into the sea and went through the procedure of arrest of the ships and their crews.
At that time from a helicopter of the British Forces from the British Sovereign Bases, Superintendent of Police P. 35 HadjiLoizou, in charge of the Narcotics Squad of the Cyprus Police Force, noticed at a distance of ten miles from the shore another boat loaded with sacks which, upon that boat being approached by the motor-launch "Aphrodite", were being thrown into the sea.
In all 359 sacks were picked and found to be of a weight of 14 tons and 420 kgms containing a substance which on being analysed at the Government laboratory it was ascertained to be Cannabis Resin.
The present appellants were all on the two boats which were found to carry the sacks in question. The master of the one of these two boats was the appellant in Criminal Appeal 4708, ex-accused 13 and of the other boat, ex-accused 9, a boy of seventeen from Turkey who on account of his age was sentenced to three years' imprisonment, and he has not appealed against the sentence imposed on him. In the first boat to be stopped no narcotics were found. It had five people on board amongst them its master Hassem Eid, ex-accused 5, against whom the Attorney-General of the Republic entered a nolle prosequi and was called as prosecution witness 1, at the trial, and Ramez Metanos Licha excused.
The sailing of the three boats in the territorial waters near its shores was, as found by the Assize Court, the execution of i conspiratorial scheme which had been conceived by four persons, who are not among the present accused but who also were prosecuted, and a certain person referred to as Baker.
In passing sentence on the present appellants the Assize Court found that a differentiation had to be made as regards the sentence to be imposed upon the various accused depending on the role of each one played in relation to the rest who were only the crew members on the boats and said:-
"Indeed it appears that accused 6 to 17 who were 30 crew members on the boats were only executor organs a matter that has to be reflected by differentiation in the sentence to be imposed. Here, however, we should probably note, that we do not agree with the submission, that the role of these members of the crews 35 was insignificant. It was secondary with regard to the master-minds but it was a substantial role in the execution of the conspiratorial scheme. Counsel of the accused have referred to the personal circumstances of each one of them and we approach the subject of the assessment of sentence having in mind all that they have mentioned. In particular the fact was stressed that ex-accused 9, is only seventeen years old."
The Assize Court then proceeded to deal with aspects of health pertaining to ex-accused 1 and 14 and went on to say that having carefully weight the facts they approached the subject of the sentence cognizant of their duty to impose a sentence proportionate to the seriousness of the offence and which would also operate as a deterrent factor in the repetition of similar offences.
On appeal before us learned counsel for the appellant—the two appellants not represented by counsel had hardly anything to say—has argued the case on the ground that the Court failed to meet out sentences that reflected the individual participation of the appellants in the commission of the offence in question.
Far from agreeing with the submission, we are of the view that the Assize Court went in detail into the part played by each appellant in the commission of the offences and addressed their mind to every consideration relevant to the determination of sentence. One distinction to which they laid emphasis was the difference between the culpability of those who master-minded the commission of the offence and secondary parties in which class the appellants belong, though the Assize Court, and rightly so, pointed out that their role could not be insignificant but a material one in the accomplishment of this grand scale criminal venture. This is reflected in the sentences passed on the appellants and other co-accused, but we feel we should not say more as there are appeals pending both against conviction and sentence and we should not be taken as prejudging any of the issues raised therein.
We avail ourselves, however, this opportunity to point out that on several occasions we emphasized the seriousness of these offences of trading in or trafficking of narcotics and that our Courts in the discharge of their duty, not only to the inhabitants of this island but also to people in other countries have to impose severe sentences of imprisonment to stamp out this social evil, showing on the one hand their abhorrence to this crime which is a matter of international concern and on the other hand that Cyprus could not be allowed to be turned into a transit camp for this horrible trade.
The possession, trafficking of and dealing with narcotics is a social evil against which a relentless war has to be waged at all times at all places by all.
For all the above reasons the appeals are dismissed but we cannot help saying that on the whole the sentences imposed are on the side of leniency.
Appeals dismissed.