(1982) 2 CLR 23
[*23] 1981 October 27
[L. LOIZOU, MALACHTOS AND DEMETRIADES, JJ.]
GEORGHIOS MICHAEL SOLOMOU AND TWO OTHERS,
Appellants,
v.
THE REPUBLIC,
Respondent.
Criminal Appeal Nos. 4245,
4246 and 4248).
Military Offences-Sentence-Failure to enlist hi the National Guard-Section 22(a) of the National Guard Laws 1964 to 1979-Two years’ imprisonment, the maximum sentence provided by the law-Appellants witnesses of Jehovah, falling to enlist because enlistment contrary to their religious beliefs-Mitigating factors-Appellants of good character and relatively young-Imposition of maximum sentence not warranted by the facts of the case-Offence a: continuing ore-Reduction of sentence in order to give appellants another chance to reflect and reconsider their position.
Criminal Law-Sentence-Maximum term of sentence-Should be reserved for the worse possible example of the offence concerred.
The appellants pleaded guilty to the offence of: failing to present themselves for enlistment in the national Guard and each of them was sentenced to two years’ imprisonment, which was the maximum sentence provided by the Law. They were all witnesses of Jehovah and their failure to enlist was because they considered that enlistment was contrary to their religious beliefs. Appellant in, Appeal 4245 was 22 years old and bad one previous conviction for a similar offence in 1978 when he was sentenced to pay a fine of £30. Appellant in Appeal 4246 was 25 years [*24] old and he, also, had a previous conviction in which he was sentenced to five months’ imprisonment; he was married and had an infant child. Appellant in Appeal 4284 was 19 years old and had no previous convictions. They were all men of good character otherwise, but they showed no sign of repentance with regard to the above offence they have committed.
Upon appeal against sentence:
Held, that the maximum term of sentence should b reserved for the worse possible example of the offence concerned, though this does not mean that the maximum term must never be imposed; that although the appropriate sentence in these cases is a sentence of imprisonment the maximum sentence provided by the law was not warranted by the facts of the case because there we some mitigating circumstances such as the fact that they were of good character, their relatively young ages and the fact that one of them was married with an infant child; that as these offences are continuing offences and the sentence of imprisonment will not absolve the appellants of their liability to serve in the National Guard, the appeals will be partly allowed and the sentences of all three appellants be reduced thus giving them another chance to reflect and reconsider their position; accordingly the sentence of appellant in Appeal No. 4245 will be reduced to nine months, that of appellant in appeal 4246 to 15 months and that of appellant in 4248 to five months.
Appeals partly allowed.
Per curiam: It is quite clear that the reason why the appellants refused to enlist in the National Guard is that to do so and take up arms is contrary to their religious convictions. There may come a day when the need for conscription will no longer be pressing and sincere conscientious objectors may be exempted from military service or may be given the choice of doing alternative non-combatant service but until such time comes and so long as the present law remains in force all [*25] citizens liable for military service are bound to enlist and serve.
Cases referred to:
Bitar and Another v. Police (1980) 2 C.L.R. 225 at p. 226.
Appeals against sentence.
Appeals against sentence by Georghios Michael Solomou and two others who were convicted on the 24th July, 1981 and on the 18th August, 1981 by the Military Court sitting at Nicosia (Case Nos. 190/81, 191/81 and135/81), of the offence of failing to present themselves for enlistment contrary to section 22(a) of the National Guard Laws 1964 to 1979 and were sentenced to two years imprisonment.
E. Vrahimi (Mrs.) for the appellants in Criminal Appeals 4245 and 4246.
E. Efstathiou, for the appellant in Criminal Appeal 4248.
St. Tamassios, for the respondent in all appeals.
L. LOIZOU J. gave the following judgment of the Court. This judgment concerns three appeals which we have heard separately this morning. The three appellants were convicted on their own plea for offences contrary to section 22(a) of the National Guard Laws 1964 to 1979, in that when their age group was called up for service in the National Guard, they failed to present themselves for enlistment.
In the case of the appellants in Appeals Nos. 4245 and 4246, the charge against them contained three counts relating to three different occasions when they were called up, whereas in the case of the appellant in Appeal No. 4248, one count. Each appellant pleaded guilty to each offence and each of them was sentenced to two years imprisonment; in the case of the first two for each count but it was ordered that the terms should [*26] run concurrently. They now appeal against the sentence passed upon them.
The grounds of appeal in the first two appeals are that the sentence is excessive, that the Court did not take seriously into consideration the social investigation report, and that the Court did not give sufficient weight to the fact that to enlist in the National Guard is contrary to their religious beliefs as they are Witnesses of Jehovah. In the last appeal, No. 4248, the ground of appeal is that the sentence was manifestly excessive.
It is quite clear that the reason why the appellants refused to enlist in the National Guard is that to do so and take up aims is contrary to their religious convictions. There may come a day when the need for conscription will no longer be pressing and sincere conscientious objectors may be exempted from military service or may be given the choice of doing alternative non-combatant. service but until such time: comes and so long as the present law remains in force all citizens liable for military service are bound to enlist and serve.
We now come to the sentence imposed. The appellant in Appeal No. 4245 is 22 years old and. has one: previous conviction for a similar offence in 1978, when he was sentenced to pay a fine of £30.-.The appellant in Appeal No. 4246 is 25 years old and he also, has no previous conviction in 1978 in. which he was sentenced to five months imprisonment. This appellant is married and has an infant child. The appellant in Appeal No. 4248 is 19 years old and has no previous conviction. All three appellants are described as men of good character otherwise.
It is true to say that with regard to the offences which they have committed, they showed no sign of repentance. In fact we think that they left no doubt in the mind of the Court that their intention is not to enlist in the National Guard because of their religious beliefs. We have no reason to doubt that [*27] they are sincere in their beliefs but unfortunately for them, their religious beliefs is not among the grounds that exclude them from military service; as the law flow stands. But the Military Court imposed upon these appellants the maximum sentence that the law provides, although there were some mitigating circumstances such as the fact that they were of good character, their relatively young ages and the fact that the appellant in Appeal No. 4246 is married with an infant child and the appellant is Appeal No. 4248 is a first offender, although, with regard to this last appellant, it does appear that in the course of the hearing before the Military Court, at his own request, or on a request made on his behalf, he was given a chance to comply by enlisting, which he refused to take.
The principles with regard to maxim-urn sentence have been reviewed by this Court in a number of cases. We need only mention a fairly recent case, that of Bitar and another v. The Police, (1980) 2 C.L.R. p. 225. At p. 226 it was held 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.
In Thomas Principles of Sentencing, 2nd Ed., at p. 32, it is stated that “the maximum, particularly where it was relatively low, was appropriate to the worst example of the offence normally encountered in practice, rather than a hypothetical worst example which might never occur.”
Although we consider that the appropriate sentence in these cases is a sentence of imprisonment, we do not think that in the present appeals the maximum punishment provided by the Law was warranted by the facts of the case. As these offences are continuing offences and the sentence of imprisonment will not absolve the appellants of their liability to serve in the National Guard, we are inclined to the view that we should partly allow the appeals and reduce the sentences of all three appellants, thus giving them another chance to reflect and reconsider their position.
In the light of all the circumstances, the sentence of the appellant in Appeal No. 4245, Georghios Michael Solomou, [*28] is reduced to nine months. That of the appellant in Appeal No. 4246, Christakis is Nicola Papacharalambous, is reduced to 15 months; and that of the appellant in Appeal No. 4248, David Yiannaki Droushioti, is reduced to one of five months imprisonment.
Appeals partly allowed.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο