Criminal appeal dismissed; sentence for death by want of precaution held not manifestly excessive.

[*1364] 1971 July 1

(TRIANTAFYLLIDES, P., HADJIANASTASSIOU,

A. LOIZOU, JJ. )

APPELLATE JURISDICTION

Kekkos Eliades,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No. 326l).

Criminal Law - Sentence - Four months imprisonment and one year's disqualification for causing death by want of precaution - Criminal Code Cap. 154 s. 210 - Mitigating factors duly taken into account by trial Court - Sentence imposed held to be necessary in the particular circumstances of this case - Its length not such as to entitle Court of Appeal to say that it is manifestly excessive.

Criminal Law

- Sentence - Assessment - The particular circumstances of the case to be borne in mind.

Sentence - See under "Criminal Law".

T. Papadopoullos, for the Appellant.

A. Frangos, Senior Counsel of the Republic, for the Respondents.

JUDGMENT

The judgment of the Court was delivered by:-

TRIANTAFYLLIDES, P.: In this case the appellant, having been convicted on his own plea of the offence [*1365] of causing, death by want of precaution, contrary to section 210 of the Criminal Code, Cap. 154, appeals against the sentence imposed on him by a District Judge in Famagusta; such sentence being four months’ imprisonment and one year's disqualification as a driver.

The salient facts, as stated in the judgment, are, briefly, as follows:-

On the 10th September, 1970, in the early evening, the appellant was driving his Mercedes car (No.BJ343) on the main Nicosia-Famagusta road, in the direction of Famagusta. Between the 13th and l4th milestones his car collided with an oncoming Scoda car (No.CR837) and as a result a passenger in that car was killed. The appellant suffered extensive injuries, was hospitalized for four months and has remained partly incapacitated for life.

The main submission which was put forward by learned counsel for the appellant is that the trial judge was labouring under the mistaken view that the collision took place while the appellant, having swerved to his righthand side of the road, was seeking to overtake a bus which was proceeding ahead of him and that he attempted to do so at a place where there is a curve; in fact, according to counsel's submission, the appellant, being under the impression that the Scoda car was crossing to his own side of the road, tried to avoid an impending collision by swerving to his right but, before he had time to reach the edge of the road and so get out of the way of the Scoda car, that car and his own collided. [*1366]

On the basis of the record before us, including evidence given before the appellant changed his original plea of "not guilty" to one of "guilty", we are of the opinion that the finding of the trial judge that the collision occurred while the appellant was about to overtake the bus was correct; and as is to be derived from such evidence the appellant sought to overtake the bus on a curve without being able to see whether the road ahead was clear; even if while attempting to overtake the bus he found himself faced with the Scoda car, which was coming from the opposite direction, and, in the agony of the moment, he tried his best to avoid a collision, this does not, in our opinion, point to a picture of what happened different than that set out in the judgment before us, but, on the contrary, it is quite consistent with it.

It was, also, argued on behalf of the appellant that no sufficient weight was given by the trial Court to certain mitigatirg factors, viz. that the appellant is a first offender, married, has a child, and that he was seriously injured himself as a result of the collision. We cannot agree that this is so: The trial judge did refer expressly to all these factors and it is obvious that he took them duly into account before deciding that the proper sentence was one of imprisonment coupled with an order of disqualification. It is quite correct that in assessing sentence in a case there have to be borne in mind its own particular circumstances (see e.g. Kouma v. The Police, (1967) 9 J.S.C. 1098, and Aras v. The Police,

(1968) 3 J.S.C. 159); applying duly this [*1367] principle we are of the view, like the Court below, that this was a case in which a sentence of imprisonment and a disqualification order were necessary; and we do not think that the length of either of them is such as to entitle us to say that the sentence passed on the appellant is manifestly excessive.

This appeal has, therefore, to be dismissed; in the light, however, of the personal circumstances of the appellant we have decided to make an order that the sentence of imprisonment and the period of disqualification should run from the date when they were imposed by the trial Court.

Appeal dismissed.