Criminal appeal dismissed; sentence upheld as lenient despite foreign status and misinterpreted silence.

[*1517] 1971 August 27

(TRIANTAFYLLIDES, P., STAVRINIDES, A. LOIZOU, JJ. )

APPELLATE JURISDICTION

Gary James Edwards,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No. 3277).

Criminal Law - Sentence - Six months' imprisonment imposed on a foreigner for office breaking with intent to steal - Section 295 of the Criminal Code Cap. 154 - Considerations governing approach of Court of appeal when examining a sentence on appeal - Need to protect community - And need to make the sentence be the proper one for the particular offender - Assessment of the appropriate sentence primarily the task of the trial Court - In the light of all relevant considerations no reason requiring Court of Appeal to interfere with the sentence passed by the Court below - Sentence being a very lenient one cannot be reduced because of the fact that the trial judge has misinterpreted the attitude in Court of the Appellant.

Foreigner - Sentence of imprisonment

- The fact that Appellant is a foreigner is not a consideration which could lead the Court to reduce on appeal what is otherwise an appropriate term of imprisonment for the specific offence and the particular offender.

S. McBride, for the Appellant.

S. Nicolaides, Counsel of the Republic, for the Respondents [*1518]

JUDGMENT

The judgment of the Court was delivered by:-

TRIANTAFYLLIDES, P. : In this case the appellant appeals against the sentence of six months' imprisonment passed upon him by the District Court in Limassol after he had pleaded guilty to the offence of breaking into the office of a petrol filling-station with intent to steal, contrary to section 295 of the Criminal Code, Cap. 154.

As counsel for the appellant - who is a British soldier stationed in Cyprus - has relied mainly on the argument that the personal circumstances of the appellant were not taken sufficiently into account by the trial court in assessing sentence and has contended that there ought to have been asked for in this respect a social investigation report in relation to the appellant, we have taken the course of asking ourselves for such a report; and we have studied carefully its contents which do show that the appellant is a person with an immature and abnormal, to a certain extent, personality.

We cannot, however, accept the submission of counsel for the appellant that the offence in question was merely immature behaviour intended to attract attention to the appellant’s desire to be discharged from the [*1519] ranks of the British Army; the facts that the offence was committed at night-time, when detection was less likely, and that the appellant, when discovered by the police inside the office kneeling behind a desk, stated that somebody had pushed him into the office, are not at all compatible with such a submission, but, on the contrary they tend to show that the appellant's action was criminally motivated.

In examining on appeal the sentence passed upon the appellant we have to bear in mind both the need to protect the community and the need to make the sentence be the proper one for the particular offender (see, inter alia, Wheeler and Others v. The Police, 1964 C.L.R. 83, at p. 87). Also, it must not be lost sight of that the assessment of the appropriate sentence in each case is primarily the task of the trial court (see the Wheeler case, supra, at p. 87).

In the light of all relevant considerations we are not prepared to say that there exists any reason requiring us to interfere with the sentence passed by the court below on the appellant.

It is quite possible that the learned trial judge may, in assessing sentence, have been influenced to some extent by the fact - to which he refers in his judgment - that the appellant kept silent when he was asked whether he had anything to say before sentence was passed

upon him; it seems that the appellant's silence was misunderstood [*1520] by the trial judge as reluctance on the part of the appellant to

express regret for what he had done, whereas apparently the appellant chose to say nothing because there was an army officer present in court who made, on appellant’s behalf, a plea in mitigation. As, however, the sentence passed upon the appellant is a very lenient one in the circumstances we do not think that we can, or should, reduce it because of the fact that the trial judge has misinterpreted the attitude in court of the appellant.

The fact that the appellant is a foreigner and, therefore, the environment of a prison in Cyprus is strange to him, is not, in our view, a consideration which could lead this Court to reduce on appeal what is otherwise an appropriate term of imprisonment for the specific offence and the particular offender; this is only a factor to be considered by the appropriate authorities at the proper time during the currency of the term of imprisonment of the appellant (see, inter alia, Marley v. The Republic, 1964 C.L.R. 143, at p. 147)·

In the light of the foregoing this appeal is dismissed; but in view of the personal circumstances of the appellant we decided to make the sentence passed upon him run as from the date of conviction.

Appeal dismissed.