Criminal appeal dismissed on conviction but allowed on sentence; six-month disqualification discharged for first offender farmer. Disqualification order part of sentence must be justified. Statutory provisions subject to Constitution.

[*638] 1970 June 19

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

APPELLATE JURISDICTION

Andreas Miltiadous,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No. 3170).

Road Traffic - Driving motor vehicle (tractor) without a licence - Regulation 27(1) and 66 of the Motor Vehicles Regulations 1959 to 1969 - And using motor vehicle without a third party insurance policy in force - Section 3(1) (2) of the Motor Vehicles (Third Party Insurance) Law, Cap. 333 and Law 7/60 - Appeal against sentence of £10 fine and six months’ disqualification - Appellant a first offender who needs his driving licence for his business - Disqualification order discharged.

Constitutional Law - Article 12.3 of the Constitution - Disqualification Order under Motor Vehicles (Third Party Insurance) Law, Cap. 333, is part of the sentence - The statutory provisions about "special reasons" and minimum disqualification period must be read subject to the Constitution.

Sentence - Road Traffic - Disqualification order being part of the sentence should be justified on the principles governing sentence.

Disqualification order - See under "Road Traffic"; "Constitutional Law"; "Sentence".

Ch. Velaris, for the Appellant.

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

JUDGMENT

The following judgment was delivered by:

VASSILLAPES. P.: The appellant, a young farmer in his early

30s from the village of Palechori, was convicted [*639] on May 11, 1970, in the District Court of Nicosia on a charge

containing two counts:- (a) Driving a motor vehicle without a licence contrary to regulations 27(1) and 66 of the Motor Vehicles Regulations, 1959 to 1969; and (b) Using a motor vehicle on a road without a thirdparty insurance policy in force, contrary to section 3(1)(2) of the Motor Vehicles (Third Party Insurance) Law, Cap.333 and Law 7/60.

He appeared in Court with an advocate and pleaded guilty to both counts. He was sentenced to £10 fine on the first count and £30 fine on the second; in addition, he was disqualified from holding or obtaining a driving licence for six months. He then replaced his advocate and took the present appeal against both conviction and sentence; on the ground (according to the notice) that the sentence imposed by the trial Judge, is manifestly excessive, in the circumstances.

In the course of the hearing before us, it appeared that appellant’s new advocate was now facing difficulties arising from a plea of guilty on facts which, in counsel’s view, were hardly consistent with the plea. However, as some of such facts were brought to light after the filing of the notice of appeal, counsel considered that in the circumstances, he could not press the appeal against conviction; and he, therefore, had to abandon that part of the appeal. What now remains is to deal with the appeal against sentence. [*640]

As already stated, the sentence consists of £40 fine (£10.- on the first count plus £30.- on the second) and a disqualification order for six months. During the argument counsel conceded that heavy as the fine may appear to be, it cannot be said that that part of the sentence was measured on wrong principle; or that the fine is so manifestly excessive as to make it necessary for this Court to intervene. Counsel, therefore, confined his client's appeal to the disqualification order, apparently realizing that the heavy fine rather strengthened his position in attacking the disqualification order.

In Solomos Stylianou v. The Police(1962) C.L.R.

152 the Court discussed on appeal, the effect of Article 12.3 of the Constitution on the provisions regarding disqualification in the Motor Vehicles (Third Party Insurance) Law, Cap. 333, under which the disqualification order was made. It was held in that case that disqualification is part of the sentence and as such, is part of the punishment prescribed for certain motoring offences. As no Law in the Republic can provide for a punishment disproportionate to the gravity of the offence, statutory provisions for a minimum period of disqualification and "special reasons" must be read and applied subject to the Constitution which requires that punishment must be proportionate to the offence.

Here the. appellant a holder of a driving licence in force under which he could drive his car and other ordinary motor vehicles classified in class "D", was found driving his small tractor which is classified as vehicle [*641] in class "E", which was not included in appellant's driving licence. He was driving his tractor in connection with his business; and when reported by the police, he had his driving licence adjusted. Appellant's tractor was covered at the time of the offence by a third party policy in force; and at that time he erroneously believed that he could drive his tractor with his ordinary driving licence for vehicles in class "D". He is a first offender.

The effect of a defective driving licence on the third party policy of a vehicle was considered in Anastassis Pyrilli and another v. The Police (1963) 1, C.L.R., p. 96 where, it was held that a learner's permit, if it does not strictly come within the word "licence", it is sufficient to bring the case within the words " other permit required by the licencing laws or regulations"; and the conviction under section 3(1) and (2) of Cap. 333 was quashed. Mr.

Velaris for the appellant, referred us also to Drakos v. The Police (1969) 1, J.S.C. 130; and to Spiritos v. The Police

(1969) 2, J.S.C. 240 where these matters were again considered. A statement in the Drakos case (supra) by Mr. Justice Josephides would seem to fit well in the case in hand. After referring to Stylianou v. The Police (supra) he said (at p. 129 D):-

"...as I see it, the burden was on the accused to put before the court the 'special reasons' which would justify the Judge to impose a disqualification less than six months. He put no material whatsoever before the trial court and today his learned counsel in his address sought to put before us facts which did not appear on record". [*642]

We find it unnecessary to deal with each of these cases here. Their effect is that a disqualification order is part of the sentence; that the statutory provisions about "special reasons" and minimum disqualification period must be read subject to the Constitution; that all relevant facts must be put before the trial Court; and that a disqualification order being part of the sentence should be justified on the principles governing sentences and the objects which the sentence must serve. We must, therefore, now consider whether the disqualification order made in this case, on a first offender who needs his driving licence in order to use his small tractor for his farming business, is justified on principle as part of the sentence in addition to £40.- fine, in the circumstances in which the offence was committed in this case.

In Panaviotis Mirahis v. The Police (1965) 2 C.L.R. 28 this Court discharged a disqualification order made on a garage mechanic taking the view that a disqualification order being part of the punishment must be justified on the principles governing sentence; or else it should be discharged.

Without going further into the matter, we reach the conclusion without any difficulty or hesitation, that in the circumstances of the case in hand, the disqualification order should be discharged.

In the result the appeal against conviction is dismissed; and the conviction stands. The appeal against sentence is partly allowed by affirming the sentences for the payment of fine and discharging the disqualification order.

Appeal against conviction dismissed; appeal against sentence partly allowed.