(1967) 2 CLR 277
1967 October 19
[*277]
[VASSILIADES, P., TRIANTAFYLLIDES AND HADJIANASTASSIOU JJ.]
COSTAS GEORGHIOU PANTAZIS,
Appellant,
v.
THE POLICE,
Respondents.
(Criminal Appeal No. 2953)
Criminal Law-Common assault contrary to section 242 of the Criminal Code, Cap. 154-Sentence-Appeal-Excessive sentence-Provocation-Behaviour of appellant provoked by behaviour of complainants-Sentence reduced as being wrong in principle and manifestly excessive.
Criminal Procedure-Appeal-Sentence-Appeal against sentence-Sentence reduced-See above.
Assault-Common assault-Sentence-See above.
Sentence-Excessive sentence-See above.
The facts sufficiently appear in the judgment of the Court whereby the sentences imposed were reduced as being excessive and wrong in principle.
Appeal against sentence.
Appeal against sentence imposed on the appellant who was convicted on the 29th September, 1967 at the District Court of Famagusta (Criminal Case No. 4683/67) on two counts of the offence of common assault, contrary to s. 242 of the Criminal Code Cap. 154 and was sentenced by Pikis, D.J., to pay a. fine of £40 on count 1 and a fine of £30 on count 2.
J. Kaniklides, for the appellant.
M. Spanos, Counsel of the Republic, for the respondents.
The judgment of the Court was delivered by:
VASSILIADES, P.: This is an appeal against sentence. The appellant, a driver in the employment of a transport company, aged 41, and a married man, was charged before the District Court of Famagusta for slapping a child of [*278] about 8 years of age, and pushing off her mother aged about 43. He was charged of common assault on two counts under section 242 of the Criminal Code; and pleaded guilty to both counts.
Addressing the trial Judge in mitigation, counsel for the appellant stated that his client slapped the little girl because she had repeatedly beaten his (appellant’s) adopted little daughter aged just over 5. The appellant, counsel added, complained to the elder child’s mother for her daughter’s treatment of his old little girl, and had also reported the matter to the teacher of the two children on earlier occasions, but neither the elder child’s mother nor the teacher intervened to stop the elder child from this persistent terrorising of his little girl. Failing effective intervention from the mother and teacher of the elder child, the appellant reported the matter to the Police, who, however, also declined to intervene.
When his little girl came crying to him that afternoon, after an assault by the elder girl, counsel said, the appellant slapped twice the elder girl to stop her interfering with his own little girl. And, when he went to the elder child’s mother to tell her about it, the mother became aggressive and called his adopted little girl a bastard. Thereupon the appellant got more angry and pushed the elder child’s mother off, giving rise to the second charge.
Counsel, moreover, informed the Court that the appellant was a first offender, the breadwinner of a family and expressed his apologies for losing control over himself under the provocation from the complainants.
The learned trial Judge adjourned the case till the following morning to consider sentence, directing that the accused be kept in custody in the meantime.
The following day the learned trial Judge sentenced the appellant to £40 fine or two months imprisonment in default for slapping the little girl; and £30 fine or 40 days imprisonment in default, for pushing off the mother. The trial Judge gave, his reasons for this sentence. “It is obvious, he said, that accused took it upon himself to punish both complainants for their reprehensible behaviour towards his adopted child. The Court has a duty to punish such behaviour and protect citizens from such uncivilised attacks”. The learned trial Judge added that he took into consideration that the appellant bad no previous convictions and that he “probably felt very bitter for the behaviour of the complainants towards his child”. [*279]
The appeal is taken on the ground that in the circumstances the sentences imposed on the appellant are manifestly excessive. Addressing this Court today, learned counsel for the appellant submitted that apparently the trial Judge did not take sufficiently into account the provocation from the complainants and the failure on the part of the mother and teacher of the older girl to take steps for stopping her from ill-treating and terrorising the younger girl. Also, the refusal of the police to do anything about it.
In these circumstances, Mr. Spanos for the Police, quite rightly in our opinion, stated that he could not support the sentence of the trial Court. Provocation is, undoubtedly, a circumstance which must be taken into consideration in passing sentence in cases of this nature. There can be no doubt that the behaviour of the appellant was provoked by the behaviour of the complainants; and that the appellant had already taken other reasonable steps to protect his little child, which he was not only entitled to protect, but he had both the moral and the legal duty to do so. It seems to us that this was not taken sufficiently into account by the trial Judge in measuring the sentence.
In the circumstances of this case, we are unanimously of the opinion that the sentences imposed are to that extent wrong in principle and in any case manifestly excessive this appeal is, therefore, allowed. Exercising our powers under section 145 (2) of Cap. 155, we reduce the sentences to £10 fine or one month’s imprisonment in default on count 1; and £5 fine or 14 days imprisonment in default on count 2. Both fines payable within a month. The order for costs to stand; in default of payment 7 days imprisonment.
Appeal allowed. Sentences
reduced as above. Order for
costs not disturbed.
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