Criminal appeal allowed; sentence reduced due to future military discipline benefit.

[*491] 1970 December.8

(VASSILIADES,

P. , TRIANTAFYLLIDES, STAVRINIDES, JJ. )

APPELLATE JURISDICTION

Loucas Charalambous Aristotelous,

Appellant,

v.

The Republic,

Respondent.

(Criminal Appeal No. 3201).

Criminal Law - Sentence - 18 months' imprisonment for burglary and 9 months' imprisonment for aggravated assault - Sections 292 and 243 of the Criminal Code,

Cap. 154, respectively - Benefit of military discipline by 21 months' military service on expiry of sentence - A ground for reducing sentence.

Military Service - Military discipline.

C. Myrianthis, for the Appellant.

S. Nicolaides, Counsel of the Republic, for the Respondent.

JUDGMENT

The judgment of the Court was delivered by:-

VASSILIADES, P.: This is an appeal against the sentences imposed on the appellant by the Assize Court [*492] of Paphos on September 22, 1970, after his conviction in that Court for burglary, under section 292 of the Criminal Code (Cap. 154), and for aggravated assault, under section 243 of the Criminal Code. The appellant was jointly charged and convicted together with another person who is not now before us. The appellant pleaded guilty to both counts; and the Court proceeded to pass sentence upon him on the facts presented by counsel for the prosecution after hearing appellant’s advocate, as usual, in mitigation.

Taking the facts from the record, we can state them briefly for the purposes of this judgment: The appellant, a youth of 19 years of age doing his national service, took an outing for the evening of June 10, 1970, together with a friend of his aged 17, in the town of Paphos. The two youths went to a cinema; then to a coffee shop; and from there they went for a walk passing the house of a woman described in appellant’s own statement to the police, as a woman of loose morals. The appellant knew the woman; and apparently knew the interior of the house sufficiently well to be able to find his way into the house, through an old back-window, the frame of which the appellant and his friend removed from the wall in order to gain access into the house.

There was no light in the house. The Woman was in fact away to another town for a few days. The appellant and his friend had acquired from a wheel barrow a box of matches for light; and striking matches one after another, started searching for money in the woman's wardrobe. In his statement to the police, the appellant said that he entered [*493] the house in order to destroy a photograph of his which he knew was to be found in the house. In fact, he found and tore up a photograph of a friend of his, which was later found in pieces by the police.

A neighbour passing outside the house noticed light inside; and knowing that the woman was away, he watched for a minute. The striking of the matches made him realise that there were people inside. Suspecting that they were there for some illegal purpose, he called out to them: "What are you doing in there?" Getting no reply, he got inside the house from the backyard. The appellant and his friend tried to run away; the good neighbour chased them and caught the appellant by the arm. To get off his grip, the appellant hit the person who had arrested him with a bottle which was on a table nearby. He struck right on the head, wounding the man on the left temple and eye with the bottle.

That assault is the subject of the second count. It enabled the appellant to run away for the moment; but the wounded man gave chase, notwithstanding his injuries, calling out at the same time for help. A police patrol that happened to be in the vicinity, joined in the chase and eventually caught the appellant and his friend. Charged at the police station with housebreaking and wounding, the two culprits gave their version in statements duly obtained, after caution, by a police sergeant. They were both prosecuted; committed for trial by the Assizes; and eventually convicted on their own plea, as already stated, about three months later. [*494]

The appeal is taken on the ground that the sentence is manifestly excessive. Mr. Myrianthis on behalf of the appellant referred to several cases where the approach of this Court to appeals against sentence is stated in the background of the facts bearing upon the question of sentence in each case. As has been repeatedly said, the responsibility for measuring sentence lies primarily with the trial Court. This Court will not interfere with a sentence unless sufficient reason has been shown, justifying such intervention. (See Pullen v. The Republic (1970) 4 J.S.C. 348 at 353).

In the case in hand, the trial Court were dealing with two young persons, both of them first offenders. The Court had before them the social investigation reports which gave relevant information for the purposes of sentence. In the light of such information and of the other circumstances on which the case of the other, the younger, offender could be distinguished the trial Court made in his case, a probation order for two years. In the case of the appellant, the Court, taking into consideration his leading role in the commission of the offence and the fact that, in the past, appellant's behaviour showed him to be a rather unruly and irresponsible young person, the trial Court imposed upon him a sentence of 18 months’ imprisonment for the burglary and 9 months’ for the assault, both sentences running concurrently.

One of the grounds upon which learned counsel for the appellant submitted as a reason for reconsideration by this Court of the sentence imposed upon the appellant is that the latter has been called up for his military service in the [*495] National Guard which will keep him in the army for about 21 months, after his release from prison on expiry of his sentence. Counsel submitted that this fact was not placed before the trial Court; nor does it appear to have been taken into consideration in assessing sentence. Army discipline and general training during a young man’s military service may well be a period offering a good opportunity for learning the advantages of a disciplined and responsible way of life. It is a period during which a youth’s conduct is under the supervision of his seniors in rank; and officers well experienced in handling young persons; especially persons handicapped by the lack of discipline and the required sense of responsibility.

We are inclined to think that if the trial Court had in mind that on expiry of appellant's prison sentence he will have the benefit of military discipline for a further period of 21 months, the Court might have come to a different conclusion regarding the length of the sentence on the first count. Taking into consideration that the facts constituting the second count arose from the same incident and form part of the whole case, we think that the shorter sentence imposed by the trial Court on the second count, followed, as it is going to be, by 21 months of military service, is the appropriate sentence for this particular offender in the circumstances of this case; and a suitable treatment for his reform. We, therefore, allow the appeal and vary the sentence to one of 9 months' imprisonment on each count, to run concurrently from the date of conviction. Appeal allowed; order accordingly.

Appeal allowed.