Criminal appeal against excessive sentence dismissed; wife's forgiveness and child welfare arguments rejected by Supreme Court.

[*1149] 1968 October 17

(VASSILLADES, P., TRIANTAFYLLTDES, JOSEPHTDES, JJ.)

APPELLATE JURISDICTION

Nicos Demetriou,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No.3033).

Criminal Law - Assault causing actual bodily harm contrary to section 243 of the Criminal Code Cap. 154 - Sentence of six months' imprisonment - Appeal against sentence as being manifestly excessive - Sentence affirmed - Approach of Court of Appeal in appeals against sentence.

Criminal Procedure Law Cap. 155, section 147(1) - Directions made thereunder for the sentence to run from the date of conviction.

Appellant in person.

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

JUDGMENT

The Judgment of the Court was delivered by: -

VASSILIADES. P.:

The appellant was charged in the District Court of Limassol with aggravated assault on his wife on June 23? 1968. He

pleaded guilty to the charge and was sentenced to six months' imprisonment.

The learned trial Judge described the assault as brutal; and referred to a similar previous conviction of the appellant which, coupled with the circumstances of the present case, led him to the

conclusion that the appellant was a man [*1150] of violent character. The appeal is taken on the ground that A the sentence imposed is manifestly excessive.

The approach of this Court to such an appeal has been stated in several earlier cases. The responsibility of measuring the sentence rests primarily with a. trial Court. If the sentence so imposed is challenged on appeal, the appellant has to show that the trial Court misdirected itself either on the facts or on the law; or that, it allowed itself to be influenced by matter which is irrelevant to the sentence.

The appeal must be argued on the record or upon other relevant matter properly put before the Court. Likewise, any submission that the sentence was manifestly excessive in the circumstances of a particular case, has to be based on the record. (See Tryfona v. The Republic (1961) C.L.R. p. 246; Karaviotis v. The Police

(1967) 11 J.S.C., p. 1264; Georghiou v. The Police (1967) 11 J.S.C. p. 1270).

The appellant before us, conducted his case in person and his main argument, is that his wife (the complainant in the charge) has now forgiven him and that she is now present in Court to support his plea for leniency. He also pleaded the welfare of his two minor children who depend, he said, on the earnings of their parents.

Having given this case all due consideration, we have not been persuaded that we should disturb the sentence imposed by the trial Judge. We hope that the forgiveness of the wife is genuine; and that the appellant will remember in future, her attempt to help him in this appeal. On the other hand the most effective way of discouraging conduct of this kind on the [*1151] part of a husband, inclined to use such violence against his A wife, is to make him bear the consequences of such conduct. This will, moreover, show practically to the wife that she is entitled to the full protection of the law against a grave assault from her husband in her own home.

Giving to the wife’s plea for leniency as much weight as we can in this case, and accepting the appellant's assurances that he has really repented for his conduct, we have decided to make use of our powers under section 147(1) of the Criminal Procedure Law (Cap. 155) and in view of the fact that the appellant has already served almost six weeks from his sentence, we have decided to direct that the sentence should be made to run from the date of conviction.

In the result, this appeal is dismissed with directions that the sentence shall, run from the date of conviction.

Order in terms.