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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V8) 1 CLR 32
1908 March 24
[TYSER, C.J. BERTRAM, J.]
POLICE
V.
NICOLA MICHAEL AND OTHERS
CRIMINAL PROCEDURE-POWER OF COURT OF APPEAL TO INCREASE SENTENCE -NON-APPEARANCE OF APPELLANT-ESTREATMENT OF RECOGNISANCES- CYPRUS COURTS OF JUSTICE AMENDMENT ORDER, 1902, ART. 12-CRIMINAL LAW AND PROCEDURE AMENDMENT LAW, 1886, SEC. 39.
The Supreme Court on confirming a conviction by a Magisterial Court has power to increase the punishment awarded by the Magisterial Court.
The accused were sentenced by the Magisterial Court of Paphos to one day's imprisonment and appealed to the Supreme Court, where they failed to appear. As the Court had no power to postpone the commencement of the sentence and under the circumstances a simple confirmation of the sentence would have been nugatory, the Court increased it by inflicting a fine and directed the recognisances of the accused to be estreated.
This was an appeal from the judgment o. the Magisterial Court of Paphos.
The four prisoners were convicted of an offence against Art. 258 of the Ottoman Penal Code and sentenced to be imprisoned for 24 hours and to pay the costs of the witnesses for the prosecution amounting to 2s.
None of the prisoners appeared at the hearing of the appeal and as under Sec. 42 of the Criminal Law and Procedure Amendment Law, 1886, the Court was precluded from directing that the imprisonment should commence on a future day, and as it would be some days before the warrant of the Court could be executed in the Paphos District, the result of a simple confirmation of the sentence would have been that the prisoner would escape the sentence of the Magisterial Court altogether.
It did not appear from the notes of the Magistrate that the prisoners offered any real defence at the trial or that the case involved any point of law.
Amirayan, for the Crown, referred to two cases in which on appeal the Supreme Court had increased the sentences of the inferior Courts, R. v. Ahmed Suleiman and others 19th September, 1891, Police v.Yanni Papa Argyro 17th June, 1901.
Judgment: Under the circumstances of this case a mere confirmation of the sentence would be nugatory, as the term of the sentence will in all probability expire before the prisoners can be arrested.
It is clear to us that under Sec. 39 of the Criminal Law and Procedure Amendment Law, 1886 (which by Art. 12 of the Order in Council of 1902, is applied to the hearing of these appeals), we have power to increase the sentence of the Magisterial Court.
The first paragraph of that section is divided into two parts. The first part, i.e., down to the words "to acquit him," is concerned with the finding of the Court as to the guilt or innocence of the accused. The rest of the paragraph is concerned with the punishment, and it is clear that whether the Supreme Court sentences the prisoner for the offence of which he was originally found guilty, or for any other offence, in either case it has power to increase the punishment awarded by the inferior Court.
We confirm the sentence of the Magisterial Court but increase it by inflicting a fine of 5s.and we direct that the recognisances of the accused by estrcated.
Sentence increased.