Court imposes custodial sentence and license disqualification for selfish disregard causing death by careless driving.

[*421] 1984 Jan. 26

(KALLIS,AG.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Nicosia Police,

v.

Petros Louca Chrysostomou,

Accused.

(Case No. 16745/83).

Causing death by want of precaution or careless act contrary to s.210 of the Criminal Code, Cap. 154 as amended by Law 4/74 and section 19 of the Motor Vehicles and Road Traffic Law 86/72 - Principles applicable to the assessment of sentence for the above offence - As this is not a case of momentary inattention or misjudgment, but a case of selfish disregard of the safety of other road users, the appropriate sentence is a custodial sentence couple with disqualification from holding or obtaining a driving licence - Imprisonment for three months and disqualification for twelve months.

P.S. M. Efthymiou, for the Prosecution.

A. Dracos with Chr. Christodoulou, for the Accused.

SENTENCE

The following sentence was delivered by: -

KALLIS,AG.D.J.: - The accused in this case pleaded guilty to the offence of “causing death by want of precaution or by careless act, contrary to section 210 of the Criminal Code, Cap. 154 as amended by Law 4/74 and section 19 of the Motor Vehicles and Road Traffic Law, 1972 (86/72)”.

The road accident which gave rise to the offence occurred on the old Nicosia- Limassol road under the following circumstances: On the 15.5.1983 about 8 a.m. the [*422] the victim was driving his car on the above road in the direction of Nicosia and in the area of “Carlsberg Factory”. At the same time witness 1, on the charge-sheet was driving his lorry in the opposite direction. Witness 1 was followed by witness 3 who was also driving a lorry and was followed by a lorry driven by accused. At a point of the road - D on the plan - about 347’ from the centre of the entrance of the “Carlsberg” factory witness 3 started overtaking witness 1 at a time when the victim was at a distance of 597’ - at point E on the plan. Accused at the same time and probably thinking that the road from the opposite direction was free, also started taking the right side of the road, following witness 3 and making a simultaneous overtaking of witness 1. Witness 1 having become aware of the danger, because he notice the oncoming car of the victim, drove his car more to the left and thus witness 3 had the opportunity to avoid a collision with the car of the victim. When witness 3 resumed his normal course the victim and accused found themselves face to face at a very close distance. The victim applied his brakes and after his car had left 18’ brake-marks the front part of his car knocked violently on the right front wheel of the car of the accused which elevated on the car of the victim and smashed it and wounded fatally the victim. At the same time the lorry of the accused dragged the car of the victim backwards for about 19’ from the point of impact. The lorry made a curve on the cabin of the car of the victim, its two front wheels were detached and the case was overturned on the right berm at a distance of 30’ 6” from the resultant position of the car of the victim. [*423]

As it will be seen from the above narr tion of the events the collision was a most violent one. Also, as it appears from the plan the collision occurred on the wrong side of the road as far as accused was concerned.

The Court acceding to an application of learned counsel for the accused, in view of the latter’s age and the seriousness of the offence, gave directions for the preparation of a social investigation report regarding the accused which was prepared and filed (see exhibit B).

The principles applicable to the assessment of sentence in cases of causing death by dangerous driving have been expounded by the Criminal Division of the Court of Appeal in England in R. v. Guilfoyle (1973) 2

All E.R. 844 and have been adopted by our Court of Appeal in the cases of the Attorney-General v. Iacovides (1973) 2 C.L.R. 344, kaloghirou

v. Police (1980) 2 C.L.R. 189, Nicola v. Police (1980) 2 C.L.R. 202, Mylordis v. Police (1981) 2 C.L.R. 219.

In the Guilfoyle case (supra) the following were stated at p. 845:-

“In the judgment of this Court an offender who has been convicted because of mementary inattention or misjudgment and who has a good driving record should normally be fined and disqualified from holding or obtaining a driving licence for the minimum statutory period or a period not greatly exceeding it, unless of course there are special reasons for not disqualifying. If his driving record is indifferent the period of disqualification should be longer, [*424] say two to four years, and if it is bad he should be put off the road for a long time. For those who have caused a fatal accident through a selfish disregard for the safety of other road users or their passengers or who have driven recklessly, a custodial sentence with a long period of disqualification may well be appropriate, and if this kind of driving is coupled with a bad driving record the period of disqualification should be such as will relieve the public of a potential danger for a very long time indeed”.

In R. v. Bruin (1979) R.T.R. 95 Lord Widgery C.J. said at p. 97:-

“One comes to ask oneself what the sentence should have been in a case of this kind, with a man of good character, in those circumstances. It is urged before us that nowadays an immediate prison sentence is not normally regarded as necessary for causing death by dangerous driving unless there are aggravating factors in the offence; for example, if the driver has been drinking, if he has exceeded the speed limit by a serious amount or otherwise has created hazards for himself, then he may well find himself going to prison if he kills someone by his dangerous driving, even though the offence is a first offence. But this is not that case. Here we have a man of good character. Although I have described our assessment of the natural hazards at this point, [*425] there was nothing else to indicate that danger was more likely than normal.

There being no aggravating circumstances, we cannot see how an immediate prison sentence was justified in this case”.

In R. v. Hudson (1979) R.T.R. 401, Geoffrey Lane,L.J. stated (at p. 403):

“The problem of sentencing in these cases is always very difficult. But when five people have died, to start with, the temptation, if one may use that expression, is to impose a sentence of imprisonment. If we may say so respectfully, the recorder was right in circumstances such as these - it was a momentary lapse inattention in effect - not to ake such a course. A fine was correct”.

In R. v. Davis (1979) Crim. L.R. 259, “a sentence of nine months’ imprisonment and disqualification from driving for five years for causing death by reckless driving were not upheld in so far as the imprisonment was concerned, which was reduced to three months’ imprisonment suspended for two years; it was pointed out that cases of reckless driving varied from those where the reckless driving was almost deliberate to those at the other end of the scale which were cases of a little more than bad luck”.

Considering the facts and circumstances of the accident, I have arrived at the conclusion that this is not a case of momentary inattention or misjudgment but a case of [*426] selfish disregard for the safety of other road users and of driving in a most reckless manner, as accused was, by no means, entitled to rely on the diligence of witness 3 and assume that the road ahead of him was free of oncoming traffic. I am, therefore, of opinion that the appropriate sentence is a custodial sentence coupled with a period of disqualification.

In considering the length of the sentence to be imposed, along with the above principles, I have, also, duly borne in mind the seriousness of the offence, for which the law provides a sentence of two years’ imprisonment. I, further, took into consideration the fact that the disregard of the rules and regulations aimed at having safe and orderly use of the roads by drivers, coupled with the density of the traffic on our roads, have brought about a frequent and disturbing occurrence of road accidents resulting both in damage to property and injury and death to persons; and this is a consideration that advocates in favour of a deterrent sentence.

(See in this connection Lazarou v. Police (1970) 2 C.L.R. 18 approved in Constantinides v. Police (1981) 2 C.L.R. 209). Also I took into account the clean past record and age

of the accused - the previous conviction for speeding is not considered as aggravating the position of the accused - his personal and family circumstances as are revealed in the social investigation report – the whole contents of which have been taken into consideration - his present job of labourer - a consideration relevant to disqualification - and all matters that have been put forward by his learned counsel in mitigation of sentence. [*427] I particularly gave due weight to his plea of guilty (and see in this connection Ieronymides v. Republic

(1982) 2 C.L.R. 258, and Pouris and Others v. Republic (1983) 2 C.L.R. 178) and to his sincere repentance and remorse which was manifested soon after the offence (see in this respect Kyriakides v. Republic (1983) 2 C.L.R 94, Nicola v. Police (1980) 2 C.L.R. 202, Constantinides v. Police (1981) 2 C.L.R. 209, Petrou v. Republic (1981) 2 C.L.R. 216). Exercising all possible leniency in view of the above mitigating factors and not overlooking the seriousness and circumstances of the offence, as above stated and need for deterrence, accused is sentenced to imprisonment for three months and he is disqualified from holding or obtaining a driving licence for 12 months.

Accused sentenced to three months’ imprisonment and disqualified from holding or obtaining a driving licence for 12 months.