(1983) 2 CLR 178
[*178] 1982 April 29
[TRIANTAFYLLIDES, P., DEMETRIADES, SAVVIDES JJ.]
ANDREAS POURLS AND OTHERS,
Appellants,
v.
THE REPUBLIC,
Respondent.
(Criminal Appeals Nos. 4013-4019).
Criminal Law—Sentence—Disparity of sentence as a ground of appeal—It may be raised even when sentences have been passed on different accused by different Courts—Pleas of guilty—Proper to give credit for that by passing a more lenient sentence than those passed upon the appellants who had not pleaded guilty.
Criminal Law—Sentence—Offences relating to the Coup d'etat of 1974—Whether the fact that others who have committed similar crimes have not been brought before the Courts can be taken into account as a ground for reducing the sentences passed upon the appellants.
Criminal Law—Sentence—Mitigating factors—Repentance—Belated repentance not a mitigating factor.
Criminal Law—Sentence—Using armed force against the Government and carrying war or a warlike undertaking—Concurrent sentences ranging from fourteen to seventeen years' imprisonment—Sustained.
The appellants, who were found guilty of the offences of having used, between 15th July and 17th July 1974, armed force against the Government of the Republic, contrary to section 41 of the Criminal Code, Cap. 154 and of having, during the same period of time, carried on war or a warlike undertaking, contrary to section 40 of Cap. 154 complained that the sentences passed upon them were manifestly excessive and wrong in principle. [*179]
Appellant 1, who was found by the Assize Court to have played a leading role in the commission of both the aforementioned offences, was sentenced to seventeen years' imprisonment in respect of each count, to run concurrently, and all the other appellants were sentenced, likewise, to fourteen years' imprisonment.
Counsel for the appellants mainly contended;
(1) That the sentences which were passed upon the appellants are excessive when they are compared with the sentence (nine years' imprisonment) which was passed by another Assize Court on another accused (Michael Vikis) after having been found guilty on his own plea of an offence contrary to the aforesaid section 41 of Cap. 154, which was committed in the course of practically the same events in respect of which all the present appellants were found guilty of offences contrary to such section 41.
(2) That though during the abortive coup d' etat of 15th July 1974 many other persons in Cyprus committed offences such as those committed by the appellants and yet these other persons have never been prosecuted and, therefore, the appellants, by being severely punished, were victimized for what all those other persons have done and for which they themselves were never punished.
Prior to the conclusion of the proceedings before the Court of Appeal some of the appellants stated unreservedly that they have repented for what they have done and denounced their criminal conduct in explicit terms.
Held, that though the issue of disparity of sentences can be raised, if special circumstances justify such a course, even when sentences have been passed on different accused by different Courts in the present instance there does not exist substantial disparity of sentences as between the appellants in this case and the aforementioned Vikis in the other case; that once Vikis had pleaded guilty it was proper to give him credit for that by passing upon him a more lenient sentence than those passed upon the appellants. [*180]
(2) That it is not really accurate to say that the appellants are the only persons who were prosecuted and punished for offences in the course of the coup d'etat of 1974; that many others have, also, been likewise prosecuted and punished, though it is, indeed, correct that even many more have been allowed to go about scct-free; that recently, on 22nd April 1982, the House of Representatives has adopted a resolution calling on the Government to take all necessary steps so that there should be brought before the Courts in order to be tried, and if found guilty, to be punished, all those who are burdened with crimes before, during and after the said coup d'etat; therefore, it is very probable that the reasons for complaint by the appellants in this respect will in the end be considerably diminished, if not completely eradicated; that consequently, this Court cannot take into account, as a ground for reducing the sentences passed upon the appellants, the fact that others who have committed similar crimes have not yet been brought before the Courts.
(3) That though it is correct that repentance is an element which, in a proper case, may be taken into account in mitigation of sentence there cannot be attributed any real weight to the very belated statements of repentance which were made on behalf of appellants 2, 4, 5, 6 and 7, because they instructed their counsel to make such statements practically at the very end of the proceedings in these appeals and only after this Court had pointed out that until that very late time they had not manifested any sort of repentance at all.
(4) That in the light of the principles governing the intervention of this Court on appeal in matters of sentence (see, inter alia, Azinas v. Police (1981) 2 C.L.R. 9 at pp. 128-129), there is no reason to interfere with the sentences passed on any one of the appellants and, therefore, the appeals of all the appellants must be dismissed.
Appeals dismissed.
Cases referred to:
R. v. McPhee [1980] Crim. L.R. 445;
R. v. Tilbrook and Sivalingam [1978] Crim. L.R. 172;
R. v. McClurkin, 1 Cr. App. R.(S.) 67; [*181]
R. v. Begg [1981] Crim. L.R. 423;
R. v. Stroud, 65 Cr. App. R. 150;
Constantinou v. The Republic (1976) 2 C.L.R.105 at pp. 109-110;
Iacovou v. The Republic (1976) 2 C.L.R.114, at pp. 128-131;
Foulias v. The Police (1978) 2 C.L.R.56 at p.58;
Ktimatias v. The Republic (1978) 2 C.L.R.82 at pp. 99-101;
Koufou v. The Police (1979) 2 C.L.R.134 at p.136;
Azinas v. The Police (1981) 2 C.L.R.9 at pp. 138-141;
Theodorou v. The Police (1979) 2 C.L.R.191 at p.194;
Nicola v. The Police (1980) 2 C.L.R.202 at p.204;
Charalambous v. The Police (1981) 2 C.L.R.182 at p.185;
Constantinides v. The Police (1981) 2 C.L.R.209 at p.211.
Appeals against sentence.
Appeals against sentence by Andreas Pouris and others who were convicted on the 9th March, 1979 at the Assize Court of Limassol (Criminal Case No. 22534/77) on one count of the offence of procuring an alteration of the Government of the Republic contrary to section 41 of the Criminal Code Cap. 154 and on one count of the offence of carrying on war or warlike undertaking contrary to section 40 of the Criminal Code Cap. 154 and were sentenced by Loris, P.D.C. Hadjitsangaris, S.D.J, and Chrysostomis, D.J. as follows:- a) Accused 1 to seventeen years' imprisonment on each count; b) Accused 2-7 fourteen years' imprisonment each on each count; the sentences to run concurrently.
A. Eftychiou, for appellants 1 and 3.
M. Christophides, for appellants 2, 4, 6 and 7.
P. Solomonides, fot appellant 5.
M. Kyprianou, Senior Counsel of the Republic, for the respondent.
Cur. adv. vult. [*182]
TRIANTAFYLLIDES P. read the following judgment of the Court. In these appeals, which are being heard together in view of their nature, the appellants, who were found guilty of the offences of having used, between 15th July and 17th July 1974, armed force against the Government of the Republic, contrary to section 41 of the Criminal Code, Cap. 154 (see count 1 in the information) and of having, during the same period of time, carried on war or a warlike undertaking, contrary to section 40 of Cap. 154 (see count 2 in the information) complain that the sentences passed upon them are manifestly excessive and wrong in principle.
Appellant 1, who was, rightly in our opinion, found, by the Assize Court which tried the appellants, to have played a leading role in the commission of both the aforementioned offences, was sentenced to seventeen years' imprisonment in respect of each to run concurrently, and all the other appellants were sentenced, likewise, to fourteen years' imprisonment.
In passing sentence the trial Court pointed out that it was dealing with two offences for which the maximum sentence was life imprisonment and stated that it took into account all the personal circumstances of each appellant and had given due weight to all that had been submitted in mitigation of punishment by counsel for the appellants.
The trial Court stressed that it regarded the offences concerned as very serious and as meriting punitive sentences which would, also, deter others from committing such offences in future.
One of the main arguments which was put forward by counsel for the appellants in the present proceedings before us was that the sentences which were passed upon the appellants are excessive when they are compared with the sentences which were passed upon the accused, by another Assize Court, in criminal Case No. 22535/77, in the District Court of Limassol. Out of the five accused persons in that case four of them pleaded guilty to offences of carrying firearms unlawfully and they were sentenced to terms of imprisonment ranging from three years to five years and another accused in that case (who was accused 1) -Michael Vikis-was sentenced to nine years' imprisonment, after having been found guilty on his own plea of an offence contrary to the aforesaid section 41 of Cap. 154, which was committed in the course of pactically the same events in respect of which all the [*183] present appellants were found guilty of offences contrary to such section 41.
It has to be noted that Vikis pleaded guilty whereas all the appellants chose not to plead guilty and they were, eventually, convicted after a very long trial. Vikis then appealed against sentence but, later on, he abandoned his appeal, while all the appellants have appealed against conviction, as well as sentence, and when their appeals came up before us appellants 2, 4, 5, 6 and 7 abandoned their appeals against conviction and chose to pursue only their appeals against sentence, whereas the appeals of appellants 1 and 3 were heard both as regards conviction and sentence.
It must be stressed that all the appellants in the present case were perfectly entitled not to plead guilty at their trial and to appeal against both conviction and sentence and they should not, in the least, be penalized for having done so.
Since, however, they have invoked, in arguing their appeals against sentence before us, the principle that disparity of sentences should be avoided as much as possible we have had to refer to the different courses which they, in the present case and Vikis, in the other case, have, respectively, chosen to adopt in meeting the accusations that they had committed offences contrary to section 41 of Cap. 154 in relation to the same events
It appears to be advisable that a sentence of imprisonment which would have otherwise been imposed for a particular offence after a conviction preceded by a trial should be shortened so as to reflect the fact that the accused has pleaded guilty. In R. v. McPhee, [1980] Crim. L.R. 445, a sentence was reduced by half in order to give credit for the fact that the appellant had pleaded guilty; and the summary of the report of that case reads as follows:
"R. v. MCPHEE: Donaldson L.J., Kilner Brown and Wood JJ.: March 10, 1980. The appellant and co-accused were charged with burglary of a cafe in which goods to a total value of £1, 200 were stolen. The appellant had eleven previous convictions, and had recently experienced several noncustodial measures as well as imprisonment. His co-accused was' slightly older, and has been sentenced to a [*184] term of imprisonment, suspended, only three weeks before the present offence. The appellant pleaded guilty and was sentenced to 12 months' imprisonment; his co-accused pleaded not guilty and was sentenced by another judge, after conviction by a jury, to twelve months' imprisonment also. Decision: the only thing that could be said in support of the appeal was that the appellant, who had pleaded guilty, had received the same sentence as his co-accused, who had put the public to the expense of a trial. If this was the correct disposal, no one would get any credit for pleading guilty. The court considered that the co-accused should have been sentenced to two years' imprisonment, while the appellant's sentence could not be criticised, but the appellant had a real and justified sense of grievance. The court would not interfere in every case of disparity, but in the present case it was justified in reducing the appellant's sentence to six months".
Useful reference may be made, too, to the cases of R. v. Tilbrook and Sivalingam, [1978] Crim. L.R. 172 and R. v. McClurkin, 1 Cr. App. R. (S.) 67.
Also, the McPhee case, supra, and the case of R. v. Begg, [1981] Crim. L.R. 423, seem to indicate that the issue of disparity of sentences can be raised, if special circumstances justify such a course, even when sentences have been passed on different accused by different Courts and, thus, the view that arguments based on disparity of sentences will only be entertained where the sentences concerned were imposed on the same occasion by the same Court-which was expressed in R. v. Stroud, 65 Cr. App. R. 150-is no longer invariably and unexceptionally followed irrespective of any special circumstanses that may exist.
The principle regarding disparity of sentences has already been considered on many previous occasions by this Court in cases such as Constantinou v. The Republic, (1976) 2 C.L.R. 105, 109-110, Iacovouv. The Republic, (1976) 2 C.L.R. 114, 128-131, Foulias v. The Police, (1978) 2 C.L.R. 56, 58, Ktimatias v. The Republic, (1978) 2 C.L.R. 82, 99-101, Koufou v. The Police, (1979) 2 C.L.R. 134, 136 and Azinas v. The Police (1981) 2 C.L.R. 9, 138-141.
In the present instance we cannot find that there exists substantial disparity of sentences as between the appellants in [*185] this case and the aforementioned Vikis in the other case, in that Vikis was sentenced to only nine years' imprisonment in respect of the offence against section 41 of Cap. 154 whereas appellant 1 was sentenced to seventeen years' imprisonment and the other appellants to fourteen years' imprisonment in respect of practically the same offence, which was committed in the course of the same events; in our opinion, once Vikis had pleaded guilty it was proper to give him credit for that by passing upon him a more lenient sentence than those passed upon the appellants.
Counsel for the appellants has also submitted that during, the abortive coup d'etat of 15th July 1974 many other persons in Cyprus committed offences such as those committed by the appellants and yet these other persons have never been prosecuted and, therefore the appellants, by being severely punished, were victimized for what all those other persons have done and for which they themselves were never punished.
It is not really accurate to say that the appellants are the only persons who were prosecuted and punished for offences in the course of the coup d'etat of 1974. Many others have also been likewise prosecuted and punished, though it is, indeed, correct that even many more have been allowed to go about scot-free.
We have noted, however, that recently, on 22nd April 1982. the House of Representatives has adopted a resolution calling on the Government to take all necessary steps so that there should be brought before the Courts in order to be tried, and if found guilty, to be punished, all those who are burdened with crimes before, during and after the said coup d'etat; therefore, it is very probable that the reasons for complaint by the appellants in this respect will in the end be considerably diminished, if not completely eradicated. Consequently, we cannot take into account, as a ground for reducing the sentences passed upon the appellants, the fact that others who have committed similar crimes have not yet been brought before the Courts; and, of course, if, eventually, it transpires that the aforementioned resolution of the House of Representatives is not given effect to, then the appellants may resort to addressing petitions to the President of the Republic for [*186] any partial remissions of their sentences which he may deem appropriate.
A matter to which we have given careful consideration in dealing with these appeals is that whereas appellants 1 and 3 until the very end of the hearing before us did not choose to express their regret, remorse or repentance for the crimes which they have committed, the remaining appellants stated unreservedly, immediately prior to the conclusion of the proceedings before this Court, that they have repented for what they have done and denounced their criminal conduct in explicit terms.
It is correct that repentance is an element which, in a proper case, may be taken into account in mitigation of sentence (see, for example, Theodorou v. The Police, (1979) 2 C.L.R. 191, 194, Nicola v. The Police, (1980) 2 C.L.R. 202, 204, Charalambous v. The Police, (1981) 2 C.L.R. 182, 185 and Constantinides v. The Police, (1981) 2 C.L.R. 209, 211; and, see, also, in this respect, Thomas on Principles of Sentencing, 2nd Ed., p.217, as well as Pikis on "Sentencing in Cyprus" (1978), p.27).
In the present case, however, we cannot attribute any real weight to the very belated statements of repentance which were made on behalf of appellants 2, 4, 5, 6 and 7, because they instructed their counsel to make such statements practically at the very end of the proceedings in these appeals and only after this Court had pointed out that until that very late time they had not manifested any sort of repentance at all. We regard, therefore, their purported repentance as nothing more than an afterthought on their part, to which they resorted in a last minute effort to avoid the severe consequences of the criminality of their conduct in respect of which they have been convicted and sentenced. Of course, we do not doubt at all the good faith of their advocates in conveying to us the repentance of their clients, but what matters is not the good faith of their counsel but the sincerity of the remorse of the appellants which, in our view, in the circumstances in which such remorse has been expressed, is really extremely dubious.
We have considered, also, all the arguments of counsel for the appellants as regards the evidence adduced in this case, which were put forward in an effort to minimize as much as [*187] possible the extent of the participation and involvement of the appellants in the commission of the offences of which they were convicted. We have reached the conclusion that even after every allowance would have been made in favour of any particular appellant as regards his exact activities during the period of time in question there remains beyond doubt the fact that each appellant, in committing the offences of which he was convicted, did not involve himself in only one particular incident, but participated over the aforesaid period in a series of very serious criminal ventures, with the result that it may be said that each one of them involved himself in the commission of the offences concerned not once but repeatedly; and thus he committed a lot of other crimes for which he was not prosecuted separately.
In the light of the principles governing the intervention of this Court on appeal in matters of sentence, as such principles have been repeatedly expounded by this Court, and very recently too in the Azinas case, supra (at pp. 128-129), we see no reason to interfere with the sentences passed on any one of the appellants and, therefore, the appeals of all the appellants are dismissed.
Appeals dismissed
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