(1980) 2 CLR 225
[*225] 1980 September 15
[TRIANTAFYLLIDES, P., L. LOIZOU, HADJIANASTASSIOU, JJ.]
ISSAM S. BITAR AND ANOTHER,
Appellants,
v.
THE POLICE,
Respondents.
(Criminal Appeal Nos. 4144-45).
Criminal Law—Sentence—Stealing, obtaining goods by false pretences and causing malicious damage—Sentences of one year's and three years’ imprisonment on appellant 1 and 2, respectively— Mitigating factors—Young age and clean past record of appellants —Confession of offences and discovery of stolen articles as a result—Appellants foreigners from Lebanon and suffering psychologically because of anomalous situation in their country—Imposition of maximum term of sentence on appellant 2 not warranted— No sufficient weight given to fact that appellant 1 a very young person with a clean past record who was led astray by appellant 2—And to the need of not discouraging people from confessing their own crimes out of fear of grave consequences following confessions—Sentences reduced.
Criminal Law—Sentence—Maximum term of sentence—Imposition— Principles applicable.
Criminal Law—Sentence—Confession of crimes by accused—Undesirability of discouraging such confession by imposition of heavy sentences.
The appellants pleaded guilty to the offence of stealing a golden bracelet valued at C£150 and appellant 1 was sentenced to one year’s imprisonment and appellant 2 to two years’ imprisonment. In passing sentence the Court took into consideration a case of stealing by both of them, another case of stealing by appellant 1, a case of obtaining goods by false pretences by appellant 2 and a case of malicious damage caused by appellant 2. Both appellants were foreigners from Lebanon and they [*226] were rather young, being nineteen and twenty-four years old, respectively. They were persons with clean past records; and they have confessed to all the above offences and the articles involved in the said offences have been discovered and returned to their lawful owners and a result of information supplied by the appellants. They were both persons who have suffered psychologically as a result of the anomalous situation which has been prevailing in Lebanon for quite a long time in the recent past. The sentence passed on appellant 2 was the maximum that could be imposed by the trial Court.
Upon appeal against sentence:
Held, (1) that the maximum term should be reserved for the worse possible example of the offence concerned, though this does not mean that the maximum term must never be imposed; that a maximum sentence could be imposed only if all hope of reforming the accused and protecting society from him by any lesser period of imprisonment has been lost; that in the light of these principles and in view of the clean past record and the relatively young age of appellant 2, as well as of the fact that he has confessed to all the offences in respect of which he has been punished, this was not one of those exceptional cases in which it was warranted to impose on him the maximum of the sentence that could be passed by the trial Court; and that, therefore, the sentence will be reduced to two years’ imprisonment.
(2) That no sufficient weight was given by the trial Court to the fact that appellant 1 is a very young person, indeed, with a clean past record, who was, obviously, led astray by appellant 2; that a shorter term of imprisonment would be sufficient to punish him for what he has done and to enable him to become a good citizen once again, without having to spend too much time in prison at such young an age as his; and that, therefore, the sentence passed upon him will be reduced to eight months’ imprisonment.
Held, further, that in deciding to interfere with the sentences this Court has paid due regard, also, to the need not to discourage people from confessing their own crimes out of fear of the grave consequences following such confessions; and that this aspect [*227] of assessing sentence was not given sufficient weight by the trial Court in the present instance.
Appeals allowed.
Cases referred to:
Brian v. The Police (1970) 2 C.L.R. 162 at p. 164;
Kakouris v. The Police (1972) 2 C.L.R. 42 at p. 44;
Marley v. The Republic, 1964 C.L.R. 143 at p. 146.
Appeal against sentence.
Appeal against sentence by Issam S. Bitar and another who were convicted on the 14th May, 1980 at the District Court of Nicosia (Criminal Case No. 9001/80) on one count of the offence of stealing contrary to sections 255, 262 and 20 of the Criminal Code Cap. 154 and were sentenced by Artemides D.J. to one year’s and three years’ imprisonment each, respectively.
E. Efstathiou, for the appellant.
V. Aristodemou, Counsel of the Republic, for the respondents.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following judgment of the Court. The appellants have appealed against the sentences of one year’s and three years’ imprisonment, as from May 10, 1980, which were passed upon them, respectively, by the District Court of Nicosia when they pleaded guilty to the offence of stealing a golden bracelet valued at C£150.
On the application of the appellants and with the consent of the prosecution there were taken into consideration, in passing sentence on them, the following offences:
A case of stealing by both of them, another case of stealing by appellant 1, which was an offence of a, more or less, trivial nature, a case of obtaining goods by false pretences by appellant 2, and a case of malicious damage caused by appellant 2 which is, also, an offence of a trivial nature.
Both appellants are foreigners from Lebanon and they are rather young, being nineteen and twenty-four years old, respectively.
They are persons with clean past records in Cyprus. [*228]
They have confessed to all the offences to which they have pleaded guilty and the bracelet which they have stolen, as well as another piece of jewellery involved in the other offence of stealing by both of them which was taken into consideration, have been discovered and returned to their lawful owners as a result of information supplied by the appellants.
It is an unfortunate fact, which cannot be overlooked, that both the appellants are persons who have suffered psychologically as a result of the anomalous situation which has been prevailing in Lebanon for quite a long time in the recent past.
It has been submitted on their behalf that the sentences passed upon them are manifestly excessive in the special circumstances of this particular case and in view of the strong mitigating factors which militate in favour of the appellants.
We cannot accept that the fact that both appellants are foreigners was a reason for imposing lesser than otherwise sentences on them. In Brian v. The Police, (1970) 2 C.L.R. 162, this Court stated the following (at p. 164):-
“The appellant stressed that being a foreigner in this country he is suffering more severely the effects of a prison sentence, because, inter alia, there are no relatives or friends of his here to visit him in prison. This Court has, on previous occasions, accepted that, indeed, the effects of imprisonment for a foreigner are more onerous (see Wheeler and Others v. The Police, 1964 C.L.R. 83 and Marley v. The Republic, 1964 C.L.R. 143). As it was, however, pointed out then this is not a reason for us to interfere with a sentence of imprisonment; it is only a matter to be weighed in each case by the appropriate authority of the State, and at the proper time, during the currency of a term of imprisonment, in the same way as good conduct in prison and. other relevant considerations are weighed in deciding whether or not to grant a remission of sentence.”
What we find to be a legitimate complaint on the part of appellant 2 is that there was imposed on him the maximum of the sentence of imprisonment that could be imposed by the trial Court in the present instance. As pointed out by Thomas on Principles of Sentencing, 2nd ed., p. 31, the maximum term should be reserved for the worse possible example of the offence [*229] concerned, though this does not mean that the maximum term must never be imposed. In Kakouris v. The Police, (1972) 2 C.L.R. 42, this Court has observed (at p. 44) that a maximum sentence could be imposed only if all hope of reforming the accused and protecting society from him by any lesser period of imprisonment has been lost.
In the light of the above, and in view of the clean past record and the relatively young, age of appellant 2, as well as of the fact that he has confessed to all the offences in respect of which he has been punished, we do not think that this was one of those exceptional cases in which it was warranted to impose on him the maximum of the sentence that could be passed by the trial Court and, therefore, we have decided to reduce it from a sentence of three years’ imprisonment to one of two years’ imprisonment.
As regards appellant 1 we are of the opinion that no sufficient weight was given by the trial Court to the fact that he is a very young person, indeed, with a clean past record, who was, obviously, led astray by appellant 2.
We think that a shorter term of imprisonment would be sufficient to punish him for what he has done and to enable him to become a good citizen once again, without having to spend too much time in prison at such young an age as his.
We have, therefore, decided to reduce the sentence passed upon him from one year’s imprisonment to eight months’ imprisonment.
In deciding to interfere with the sentences passed upon both appellants we have paid due regard, also, to the need, which was stressed in Marley v. The Republic, 1964 C.L.R. 143, 146, not to discourage people from confessing their own crimes out of fear of the grave consequences following such confessions. We are of the opinion that this aspect of assessing sentence was not given sufficient weight by the trial Court in the present instance.
For all the above reasons these appeals are allowed and the sentences passed upon the appellants are reduced accordingly.
Appeals allowed.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο