Supreme Court allows appeal against sentence for young first offender stealing, setting aside imprisonment for probation.

[*179] 1969 January 31

(VASSILIADES, P., JOSEPHIDES, STAVRINIDES, JJ.)

APPELLATE JURISDICTION

Georghios Ioannou Skoullou

alias “Kotsiras”,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No. 3060).

Criminal Law - Sentence - Six, months imprisonment for stealing, contrary to sections 255 and 266(b) of the Criminal Code Cap. 154 - Appellant’s back-ground not before trial Judge - Appellant young and first offender - Social Investigation Report highly desirable - Sentence of imprisonment set aside and substituted by a Probation Order.

Criminal law - Young offenders - Sentence of imprisonment - Social Investigation Report - Desirability that trial Judges should have before them a social investigation report if they are minded to impose a sentence of imprisonment.

L. Clerides, for the Appellant.

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

JUDGMENT

The Judgment of the Court was delivered by: -

VASSILIADES, P.: Upon a plea of guilty to a charge for stealing, and a sentence of six months imprisonment imposed upon him by the trial Judge, the appellant took the present appeal against conviction and sentence.

In the course of the argument, learned counsel abandoned the appeal against conviction. And having [*180] heard the appeal until that stage, we have no doubt, in our mind that counsel took the proper course, in the circumstances. So, what is left is the appeal against sentence. It is a sentence of six months imprisonment imposed on the appellant, a young man of

24 and a first offender, for stealing from a dwelling house a transistor of the value of £11.

What was stated at the trial Court on his behalf, in mitigation, was that the appellant went into a co-villager’s house, trusting that the latter would not mind as they were on friendly terms, took the transistor to his own house and when interrogated by the police latter on the same day, admitted having taken the transistor, giving the explanation that he did not think that he would be misunderstood for taking it. When he realized that he did something wrong from the presence of the police, the appellant expressed his apologies; same as he did later in Court.

This plea was, in a way, inconsistent with the plea of guilty for stealing; but we have to take the position from the plea on the record, as the appeal against conviction has been abandoned; and we are now dealing with the appeal against sentence. The resulting position presents some difficulty; but there are certain facts which throw light on the matter: there is no allegation that the transistor was found concealed; it is conceded by the prosecution that the appellant, immediately upon being questioned by the police, admitted having taken it; it is not disputed that he explained his conduct by his friendly relations with the people living in the house: and that he said that he did not think that he would be “misunderstood”. In the circumstances, even if we take, the position [*181] from the recorded plea, we are still left with the undisputed surrounding circumstances which make the case of such a nature that a sentence of imprisonment is questionable.

The trial Judge, according to his note, taking into consideration that the offence of stealing from a dwelling house is punishable with imprisonment of five years, was of the opinion that appellant’s friendly relations with the complainants made the case more serious, because the appellant took advantage of that fact. And the Judge took the view that “despite the fact that accused is a first offender”, the proper punishment to be imposed was one of imprisonment.

With all respect to the learned Judge, we think that if he was minded to impose a sentence of imprisonment in such circumstances, it was highly desirable that before doing so he should have before him a social investigation report, as suggested in the cases to which we

have been referred by counsel for the appellant: Stylianou and two Others v. The Republic 1961 C.L.R.p. 265; and the other case of the Attorney-General v. Stavrou and Others

1962 C.L.R. p. 274 at p. 277.

The question now is whether this Court has sufficient reasons for interfering with the sentence imposed by the trial Court or not. We certainly think that, in the circumstances of this case, for a first offender of the age of the appellant, a sentence of imprisonment would be desirable only if it were to serve any of the purposes of such a sentence; and if imprisonment were unavoidable. We take the view that the learned trial Judge should not have decided on this point without having fully before him the background of the accused; and [*182] was highly desirable in the circumstances in the absence of it that an investigation report we are inclined to think that the sentence should not be sustained; and we are unanimous in our decision to set it aside.

The question now arises what is the appropriate sentence in the circumstances? And whether we should now, at this stage, call for an investigation report. We think that as the appellant has served part of the sentence of imprisonment imposed on him (about two and a half months now) no question arises of a fresh sentence of imprisonment in the present case; and that the best course is to make a probation order for one year, on the usual terms and conditions, under the Probation of Offenders Law, Cap. 162, upon the signing of which the appellant shall be released. The supervising Court, to be the District Court of Kyrenia.

Appeal against sentence allowed. Sentence of imprisonment set aside and Probation Order made in above terms.

Appeal against sentence

allowed; sentence of imprisonment

set aside; probation order

made in above terms.