Cyprus Supreme Court allows appeal against excessive fine for carrying a gas weapon in a suitcase.

[*372] 1965 April 16

(VASSILIADES, TRIANTAFYLLIDES, JOSEPHIDES, JJ.)

APPELLATE JURISDICTION

Peter Graham Mackintosh Beecroft,

Appellant,

v.

The Police,

Respondents.

Criminal Appeal No.2766).

Criminal Law - Sentence - Manifestly excessive - Offence against the Firearms Law, Cap.57 (as amended) - Sentence of imprisonment - To he resorted to by the Court if, after due consideration, reaches the conclusion that no other sentence is appropriate in the circumstances - Fine sufficient in the circumstances of this case.

Charge:

Count 1: Carrying a weapon designed for the discharge of gas, contrary to section 3(1)(c)(2)(b)* of the Firearms Law, Cap.57, as amended by Law 11 of 1959.

Count 2: Possessing explosives, contrary to section 4(4)(d) of the Explosive Substances Law, Cap.54.

Sentence and date:

On count 1: £200 fine or in default 18 months imprison ment. Fine payable forthwith. 22.3.65.

On count 2: £10 fine or in default 6 weeks imprisonment. Fine payable forthwith. 22.3.65.

Grounds of appeal:

(a) The sentence is manifestly excessive.

(b) The learned trial judge addressed his mind to the case of Police v. Marley and allowed himself to [*373]

be influenced by that case when that case was in no way comparable either in substance or in gravity with the present case.

(c) The learned trial Judge misdirected himself as to the gravity of this particular offence in view of all the facts adduced.

(d) The learned trial Judge erroneously failed to take into account the defensive aspect of the weapon, and/or pay sufficient attention to this fact.

(e) The prosecution communicated to the learned trial Judge information concerning the possible use of the weapon which were never established and on which no charges were framed.

(f) In passing sentence the learned trial Judge failed to take into account the financial circumstances of the appellant, and were it not for the generosity of his employers advancing the fine which the appellant will now have to pay back, the appellant would have had to serve a term of imprisonment.

(g) As the learned trial Judge had found the offence did not warrant a term of imprisonment the fine awarded was tantamount to a term of imprisonment.

(h) Despite saying to the contrary the learned trial Judge could not have taken into account sufficiently the mitigating facts advanced on behalf of the appellant, all of which showed completely the innocent intentions of the appellant and his complete ignorance of the law,

(i) The Appellant reserves the right to add to these grounds when the full notes of the case have been received.

St. G. McBride, for Appellant.

Ach. Prangos, Counsel of the Republic, for the Respondents.

JUDGMENT

VASSILIADES. J.: This is an appeal from the sentence imposed on the appellant in the District Court, [374] mainly on the ground that in the circumstances, the sentence is manifestly excessive. It is, we think, abundantly clear that the charge as amended, is, in fact, the charge intended to be brought against the appellant; the correct charge on the facts of the case. It is also clear to us that such facts do not justify a sentence of imprisonment. Quite rightly, we think, the trial Judge avoided it. This Court takes the view that a sentence of imprisonment should only be resorted to, if the Court, after due consideration, reaches the conclusion that no other sentence is appropriate in the circumstances. In this particular case, a fine is clearly sufficient to meet the case.

This is a kind of weapon which, as far as we are able to say, is the first of its kind to find its way to the courts in Cyprus. This case, therefore, cannot be fairly connected with the prevalent offence of carrying fire arms which, in the conditions now prevailing in the Island, must be considered on quite a different footing, although an offence under the same section of the Law. But for the present conditions, we feel that for carrying this kind of instrument in one’s suitcase, in the circumstances in which the appellant in this case v/as carrying it, no court in Cyprus would impose a severe sentence. Taking into consideration all the circumstances as they appear on record, including the fact that the article in question was being carried in a suitcase in the boot of the car, by a young foreigner, who had been in the Island for a very short while, we think that an appropriate fine would be sufficient to meet the case. The fine imposed is, we think, manifestly excessive. [*375]

In varying the sentence, we take into consideration the fact that tho accused has been kept in custody for four days in connection with this case, which together with a fine of £20 on count 1, would, in our opinion, be sufficient punishment in the circumstances. We would, therefore, allow the appeal and substitute the sentence of £200 on count 1, accordingly. As to the second count, we think that the carrying of this ammunition was so connected with the offence of carrying the pen itself as to fall in the same set of circumstances which make up the offence in the first count. We think that, in the circumstances, the sentence imposed on count 1 covers the whole case and we would not pass an additional sentence on this count.

In the result, the appeal is allowed; the sentence of £200 is substituted by one of £20 fine on the first count; and no sentence on the second count. The exhibits, of course, have been rightly forfeited under the Order of the trial Court.

Appeal allowed.

Sentence varied

accordingly.

* As amended in the course of hearing of the Appeal.

Vide Marley v. The Republic, (Appeal), published in (1964) 2 J.S.C., p.66. [*373]