Supreme Court dismisses appeal against conviction and sentence for possessing a revolver, allowing sentence delay due to prosecution delay.

[*148] 1970 February 3

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

APPELLATE JURISDICTION

Nicos Charalambous Terlas,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No. 3143).

Firearms - Possessing revolver - Section 4(1) (2) (b) and 27 of the Firearms Law Cap. 57 as amended by Law 11 of 1959 - Conviction resting on evidence of accomplices - Trial Court's findings satisfactory - Upheld.

Criminal Law - Sentence - Fifteen

months' imprisonment for possessing revolver - Section 4(1)(2)(b) and 27 of the Firearms Law Cap. 57 as amended by Law 11 of 1959

- Not excessive having regard to appellant's character and to his previous convictions.

Court of Appeal - Sentence - Court of Appeal will not interfere with a sentence on appeal unless the appellant can show sufficient reasons for intervention.

Trial in Criminal Cases - Delay in prosecuting - May affect sentence to be imposed.

Delay in prosecuting case - May affect sentence to be imposed.

E. Efstathiou, for the Appellant.

C. Antoniades, Counsel of the Republic, for the Respondents.

JUDGMENT

The judgment of the Court was delivered by:-

VASSILIADES, P.: The appellant, a young taxi driver of 25 years of age, was convicted on November 22, 1969, [*149] in the District Court of Nicosia, up on a charge preferred by the Police, for possessing a revolver without the required permit, contrary to the relevant provisions of the Firearms Law, Cap. 57; and was sentenced to 15 months' imprisonment. He now appeals against both his conviction and sentence.

The appeal against conviction is taken on the ground that the findings of the trial court, resting mainly on the evidence of an accomplice and other persons of similar character connected with the offence, arc unsatisfactory; and the conviction based upon such findings should be set aside. The appeal against sentence is taken on the ground that for an unserviceable and practically useless revolver, regarding the possession of which there was more than a year’s delay in filing a prosecution, a sentence of 15 months’ imprisonment is manifestly excessive.

The short facts of the case are that the Police, acting on information, called one of the accomplices to the station who, apparently, helped them to find in his (the accomplice’s) house, the revolver in question, together with five rounds of ammunition. The articles so found were produced at the trial; and are now before us as exhibit 1. The prosecution conceded all along that the revolver is unserviceable in its present condition; but it certainly looks like one and satisfies the statutory definition. This accomplice was not prosecuted but was called as a witness for the prosecution to state that the appellant, together with another [*150] accomplice (who also gave evidence for the prosecution) had sold and delivered to him the revolver found in his (the witness-accomplice’s ) house, for £5.

On discovering that it was unserviceable, the witness tried to get his money back, returning the prohibited articles, soon after the illegal, transaction in question. In the course of this attempt, which was made in a coffeeshop in the presence of another friend (who also gave evidence for the prosecution), the appellant agreed to the proposal but had no money with him, he said; and until he could find it, the buyer could keep the article. That is how it was found in his house several months later.

The appellant denied that he was the person who sold and delivered the revolver. Appellant’s version was that it was the first accomplice who did so, delivering it in a bag, in appellant's presence; and taking the £5. Later, in the coffee-shop, the appellant was trying to persuade, he said, the other accomplice to return the £5; but the latter did not have all the money with him (he only had 30/-), and the buyer kept the article pending return of his money. The appellant stuck to his story at the trial where he gave evidence for the defence.

The trial Judge, after hearing all these "friends" from the witness box, accepted the evidence for the prosecution; and disbelieved the appellant. In a careful judgment, the Judge made it clear that he received the evidence for the prosecution with the reservation and care due to the [*151] testimony coming from accomplices; arid that, after warning himself against the dangers from such evidence, he was satisfied that he could safely act upon it in this case. He found accordingly; and convicted the appellant as charged.

The able argument of learned counsel for the appellant before us this morning, and the careful way in which he went into detail, in his endeavour to present the weaknesses in the case for the prosecution, did not persuade us that the evaluation of the evidence by the trial Judge was defective; or that his findings were in any way unsatisfactory. (See Mavroyiannos v. The Police, (1969). 12, J.S.C. 1520). We therefore uphold them; and this disposes of the appeal against conviction.

As regards the sentence, learned counsel for the appellant stressed the fact that the revolver was unserviceable ; and eitler useless as a weapon, or at least, not dangerous. These are matters which may well be taken into consideration regarding sentence. We have no reason to doubt that the trial Judge did take them into account when considering the question of sentence.

Another point taken on behalf of the appellant in this connection, was the delay in taking the matter to court. Counsel referred to Nicolas Christodoulou Farfaros v. The Republic (1963) C.L.R. Part 1, 36, and pointed out that while the information regarding the case reached the Police as early as May 1968, no prosecution was filed until September 1969. Matters were no longer fresh in the minds of the witnesses, which may well have prejudiced the appellant. [*152]

Counsel for the Police was not in a position to explain the delay notwithstanding the fact that he tried to find out the reason from the police records. We think the complaint is justified; but we should not attach to it more than the appropriate weight in the circumstances of this particular case.

Giving the matter our best consideration, in the light of the Social Investigation Report from the Welfare Office, regarding the appellant, and considering his character as reflected in this, as well as in the Prison Welfare Officer's report, and the list of his previous convictions, we do not think that the sentence imposed by the trial court is excessive. Notwithstanding his young age, (he is 25), he has no less than fifteen previous convictions for a variety of offences, including housebreaking, assaults, carrying a firearm and escaping from lawful custody, for which he received several sentences of imprisonment, one of which he was still serving when convicted in the present case. In the circumstances, one may even think that the sentence imposed, is on the lenient side.

The primary responsibility, however, for imposing the appropriate sentence, rests with the trial court. This Court will not interfere with a sentence on appeal unless the appellant can show

sufficient reason for intervention. (See Koungas v. The Police (1968) 12, J.S.C. 1453; Hapsides v. The Police, (1969) 3 J.S.C, 414). No

such reason has been shown in the instant case. But considering the complaint [*153] regarding the delay in bringing the matter to Court, we think that directions should be made under section 147(1) of the Criminal Procedure Law, Cap. 155, for the sentence to run from the date of conviction.

Appeal dismissed; sentence to run from the date of conviction.

Appeal dismissed;

sentence to run as aforesaid.