Illegal possession of arms warrants imprisonment, but genuine pre-detention repentance allows suspended sentence.

[*180] 1976 March 6

(PIKIS, AG. P.D.C. )

IN THE DISTRICT COURT OF FAMAGUSTA SITTING

AT LARNACA

Police

v.

Andreas Antoniou Mouzouris,

Accused.

(Criminal Case No. 2813/75).

Firearms and explosive substances - Possession - Sentence - Gravity of offence - Illegal possession of arms and explosives constitutes a direct danger to the well-being of society and threatens its foundation - Sentence of imprisonment called for - Two years' imprisonment - Mitigating factors - Repentance manifested before detention - Member of illegal organization EOKA B - Truly repenting about his previous participation in its activities - Taking the stand that weapons and explosives in the possession of this organization should be surrendered - And taking practical steps in that direction by intending to deliver the arms and explosives at his house to the Police - Execution of sentence suspended for three years.

Sentence

- Sentence of imprisonment - Suspension.

Insp. Chr. Economides,, for the Prosecution.

Accused present, in person.

JUDGMENT

The following judgment was delivered by:-

PIKIS, AG. P.D.C.: The accused pleaded guilty [*181] to two charges, namely (a) possession of explosive substances, including two hand grenades, and (b) receiving a portable wireless set, worth £361f knowing the same to have been stolen, The gravity of the offences, is manifest from the maximum punishment provided by law and I need not elaborate on the subject.

The case before me presents a number of distinct features and I propose to refer in detail to the facts of the case. In his plea in mitigation and subsequently on oath, when the accused came forward to testify in support of allegations made from the dock, he confessed that he was a member of EOKA B, an organization that he described as treasonous and one that has brought ruin and destruction to Cyprus. He informed the Court that the explosive substances and wireless set were the property of this illegal organization and described the circumstances under which the forbidden articles came in his possession. In his testimony, he stated that on 29th September 1975 a conference of sect on leaders of EOKA B was held at Xylophagou to discuss the reaction of the organization to Government appeals for the surrender of arms and explosives. The accused maintained that he and two others disagreed with the course of action suggested by the area leader of EOKA B. According to the accused this leader, whose name he disclosed in the course of his evidence, was suggesting that they should keep their arms and explosives in defiance to the Government appeal whereas he and two [*182] other attendants suggested that the organization should be dismantled and the weapons should be delivered to the Government. The accused declared his intention to surrender arms and explosives to the Government and walked out of the conference, followed by two others. Later that evening he and his colleagues brought to his house the explosives and the portable set, subject matter of these proceedings, intending to deliver them the following day to the Government authorities. Then the accused proceeded to make a delivery of bread at Vrysoulles. On his return the following morning to his village he found his house surrounded by the police who had, in the meantime, with the co-operation of the wife of the accused, discovered the existence of the articles in question.

It is the case for the accused that those members of EOKA B who opposed his surrendering weapons to the Government were responsible for divulging information leading to the police searches. Inspector Koues, the officer in charge of the information section of the Famagusta police division, confirmed, in his evidence, that information reached the police authorities as to the presence of explosives at the house of the accused on the afternoon of 29th September 1975, through a person that had no connection with EOKA B; he was unable, however, to say under what circumstances their informant came in possession of the relevant Information and whether such information reached him through an EOKA B channel. Mr. Koues was likewise unable to confirm whether a meeting [*183] of EOKA B members did take place at Xylophagou on 29th September 1975, but did confirm that on subsequent occasions not only was the accused instrumental in helping the police recover three weapons but took a dominant part in instigating a number of EOKA B members to co-operate with the authorities and give up weapons in their possession. Many of the supporters of EOKA B refused to listen to the accused, accusing him of being a Government agent. Inspector Koues agreed with the allegation of the accused that he promised the latter to do everything in his power to have criminal proceedings against the accused suspended.

I believe that before proceeding to measure the sentence to be imposed I must make my findings on the facts before me, considering that the facts of a case are of primary importance in determining the sentence to be chosen.

In the light of the evidence before me I cannot exclude that a meeting of EOKA B members did take place at Xylophagou on 29th September 1975, neither do I exclude the allegation that accused, having truly repented about his previous participation in the activities of the illegal organization EOKA B, did take the stand that weapons and explosived in the possession of this organization should be surrendered to the authorities and took practical steps in that direction, intending to deliver the arms and explosives collected at his house to the [*184] police. There is a serious possibility, in these circumstances, that those who opposed the course of action he had chosen to take, tipped, in an indirect way, the police about it, hoping thereby to avert other EOKA B members from following the same course of action in view of the consequences that accused could be expected to face if caught in possession of explosives and weapons. The repentance of the accused and the extent of it are evident from what followed afterwards, in particular his open canvassing for the surrender of weapons and explosives illegally held and his unqualified condemnation of EOKA B.

My findings make my task a difficult and a fine one. There is no doubt that the accused committed serious crimes for which the legislature has provided long terms of imprisonment, indicating thereby the gravity of the offences. The Courts have repeatedly stressed that the illegal possession of arms and explosives constitutes a direct danger to the well-being of society and threatens its foundations. Time and again it has been said that sentences of imprisonment are called for to deal adequately with crimes of this nature. This case is no exception, on a consideration of the gravity of the offence, and the appropriate sentence is, in my judgment, a sentence of 2 years’ imprisonment on each count to run concurrently.

However, I believe I should suspend the execution of this sentence in accordance with the provisions of Law 95/72, for the following reasons:- [*185]

A sentence of imprisonment is not normally suspended where the nature of the crime is such as to require the imposition of a deterrent sentence. And most certainly crimes relating to the unlawful possession of arms and explosives require the imposition of deterrent sentences. However, justice is never blind in its path and the discretionary powers of the Court should, in every case, be exercised in a way furthering the interests of justice. I believe that I have before me a case. of a person who has genuinely repented and whose repentance was manifested before his detention; and, for obvious reasons, this is quite different from a case of repentance after arrest. To impose a deterrent sentence in these circumstances might make it difficult for persons in the position of the accused from coming forward and making a clean breast of it. In fact to impose a sentence of immediate imprisonment might, in my view, well serve the purposes of those who opposed the accused in his condemnation of EOKA B and his decision voluntarily to surrender arms and explosives to the authorities; and that would be very unfortunate.

I had occasion to examine the principles upon which the discretion to suspend sentence should be exercised in Criminal Case 2002/75, Larnaca District Court, and need not repeat in detail what had been said there, Suspending a sentence of imprisonment is not a new mode of punishment but a new mode of executing a sentence of imprisonment. It is a sentence of imprisonment in every sense of the word except that it is not executed forthwith.

I believe I would be failing in my duty if I [*186] refrained from commenting on some very alarming revelations made in the course of these proceedings. These revelations are that there are still groupings of EOKA B that persist in the illegal possession of fire-arms and explosives and in the furtherance of their illegal pursuits. I believe I am voicing the feelings of all law-abiding citizens if I say that law and order will not be firmly established until these groups are dissolved and arms and explosives illegally possessed are recovered by the authorities. It is monstrous that EOKA B should still function as an illegal organization despite the tragedy of Cyprus, to which they contributed so very much.

In the result, the accused is sentenced to two years' imprisonment on each count, the sentences to run concurrently. The execution of the sentence is suspended for three years on condition that accused shall commit no crime punishable with imprisonment in the meantime.

The accused is addressed in terms of section 3(3), Law 95/72. The portable wireless set to be restored to the owners. Other exhibits to be forfeited.

Accused sentenced to two years' imprisonment.

Execution suspended for three years.