(1975) 2 CLR 124
1975 September 11
[*124]
### [*125]
### [*126]
This is an English translation of the judgment in Greek appearing at pp 124 - 126, ante.
Military Offences-Sentence-Eighteen months’ imprisonment for desertion-Section 29 of the Military Criminal Code and Procedure Law, 1964 (Law 40 of 1964)-Appellant appearing without counsel and unable to place all mitigating factors-No “social investigation report” asked for by trial Court-Medical report placed before Court of Appeal-Had it been placed before Military Court its contents would have contributed to a serious extent in reducing sentence-Sentence reduced on this ground.
Sentence-Military Offences-See under “Military Offences”.
Appeal against sentence.
Appeal against sentence by Michael Costi Nicolaou who was convicted on the 13th June, 1975 at the Military Court sitting at Nicosia (Case No. 130/75) on one count of the offence of desertion contrary to section 29 of the Military Criminal Code and Procedure Law, 1964 (Law 40/64) and was sentenced to eighteen months’ imprisonment.
E. Efstathiou, for the appellant.
Chr. Tselingas, for the respondent.
The judgment of the Court was delivered by :-
TRIANTAFYLLIDES, P.: The appellant appeals against the sentence of eighteen months’ imprisonment imposed on him by the Military Court for the offence of desertion, contrary to section 29 of the Military Criminal Code and Procedure Law, 1964 (Law 40/64). [*127]
In imposing sentence the trial court took into consideration, on an application by the appellant, three other similar offences committed by him, as well as a. pending charge against him in respect of the offence of shooting with a service firearm without good reason.
The appellant, who is 21 years old, appeared before the Military Court without the assistance of counsel and thus he was unable to place fully before such court all personal mitigating factors; moreover, the Military Court did not ask for a “social investigation report”, as it should be done in every case where the possibility of imposing a sentence of imprisonment on a young person is contemplated.
Today his counsel has placed before us a report from the Phychiatric Institutions at Athalassa, dated 2ndSeptember, 1975; the material part of such report reads as follows (in English translation):-
“From the history and the clinical examination it appears that he is a mentally backward person (I.Q. 72) with personality disorders characterized by pronounced immaturity and inadequacy, emotional instability, maladaptation, irritability, and he sometimes acts in an impulsive manner because of his reduced intelligence and inhibitions.
During his military service he did not, as a rule, cause any serious problems, but later on, while he was serving as a reservist, he developed ‘reduced adaptability in relation to his duties as a soldier, as well as reduced tolerance of various situations in the army, due to the special war conditions, to his basic disturbance of personality and to his mental backwardness which borders on stupidity. Because of his diminished judgment and inhibitions he developed impulsive behaviour which resulted in frequent desertions. We are of the opinion that this person must be relieved of his military duties and should be referred for this purpose to the Examination of Physical Fitness Committee.”
We are sure that had this report been placed before the Military Court its contents would have contributed to a serious extent, in reducing the sentence imposed on[*128] the appellant; with this view has agreed, too, very, fairmindedly, counsel who appears today for the Republic.
In the circumstances we are of the opinion that the sentence imposed on the appellant should be reduced to four months’ imprisonment only.
The appeal is allowed accordingly.
Appeal allowed.
Sentence reduced.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο