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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1988) 2 CLR 86
1988 May 16
(DEMETRIADES, SAVVIDES, KOURRIS, JJ.)
ANDREAS MICHAEL GEORGHIOU,
Appellant,
v.
THE REPUBLIC,
Respondent.
(Criminal Appeal No. 4948).
Sentence - Possession of controlled drugs (4.300 grammes of cannabis resin) and possession of such drugs with intent to supply them to others - Four and a half years' imprisonment - No reason for interference with the sentence.
The appellant was apprehended, whilst attempting to take out from the controlled area of the Port of Limassol the aforesaid quantity of cannabis resin.
He immediately named the person, who had given him the drug. Such person and the appellant were jointly charged, but the prosecution offered no evidence against appellant's co-accused.
In fact, this was one of the argument in support of this appeal. However, counsel for the prosecution explained that they had to act as they did, because on the one hand the appellant, who was the only witness, could not be called, because the pleaded not guilty and on the other hand the statement of the co-accused to the police was not a voluntary one.
Held, dismissing the appeal: (1) The trial Court was right in holding that the role of the appellant in the participation of the offence was the most difficult one as he was entrusted with the transportation of the drugs outside the controlled area of the Limassol Port.
(2) Possession of drugs is a public and social menace and a social problem and the Courts should deal with them severely.
Appeal dismissed.
Appeal against sentence
Appeal against sentence by Andreas Michael Georghiou who was convicted on the 10th November, 1987 at the Assize Court of Limassol (Criminal Case No. 20735/87) on one count of the offence of possessing 4.300 grams of cannabis resin contrary to sections 2,3, First Schedule, Part II, 6(1)(2), 24(1)30 and the Third schedule of the Narcotic and Psychotropic Substances Law, 1977 (Law No. 29/77) as amended and on one count of the offence of possessing controlled drugs for the purpose of supplying them to others contrary to sections 2,3, First Schedule, Part II, 5(1)(3)(6), 6(3), 24(1), 30 and Third Schedule of the above law and was sentenced by Boyadjis, P.D.C., Anastassiou, S.D.J., N. Nicolaou, D.J to 4 1/2 years' imprisonment on the second count with no sentence passed on the first count.
A. Eftychiou, for the appellant.
R. Gavrielides, Senior Counsel of the Republic, for the respondent.
Cur. adv. vult.
DEMETRIADES J. read the following judgment of the Court. The appellant was convicted by the Assize Court of Limassol and sentenced to four and a half years imprisonment after he was found guilty to two charges of
(a) possessing 4.300 grammes of cannabis resin which are controlled drugs of class «B». contrary to sections 2, 3, First Schedule, Part II, 6(1)(2), 24(1), 30 and the Third Schedule of the Narcotic Drugs and Psychotropic Substances Law, Law 29/77 as amended by Law 67/83, and
(b) possessing controlled drugs of class «B». for the purpose of supplying them to others, contrary to sections 2,3, First Schedule, Part II, 5(1)(3)(b), 6(3), 24(1), 30 and Third Schedule of the Narcotic Drugs and Psychotropic Substances Law, Law 29/77 as amended by Law 67/83.
The facts that led to the arrest and prosecution of the appellant are in brief the following:
On the 7th July, 1987, on information received, the Police placed under surveillance in the Port of Limassol motor vehicle Registration No. MA 122 (hereinafter referred to as the vehicle). The information that the Police had received was that the vehicle was going to be used for the transportation of drugs which were to be delivered from the ship SAFUAN «M» which was anchored at the Port of Limassol. At about midday on that day, policemen, who were keeping a watch for this vehicle, noticed a trailer driven by the appellant to stop near it and the appellant to alight from it, unlock the driver's door of the vehicle and then go and unlock its rear right door. The appellant then checked the area and returned to the trailer from which he took a black plastic bag which he placed on the rear seat of the vehicle. The appellant then got into the driver's seat of the vehicle, and drove off. The Policemen who were watching the movements of the appellant acted immediately and forced the appellant to stop. They then opened the rear door of the vehicle and took the black plastic bag which was on the seat. They opened it and found that there were in it a tin, a plastic container, and a nylon bag containing 43 blocks of a substance which looked like cannabis resin. The appellant was then asked what the bag contained and he replied «hashish». The appellant was then arrested. This substance was later examined and found to be cannabis resin 4.300 grammes in weight. Later on that day the appellant identified a person that was on the ship «SAFUAN M» as the person who supplied him with the drugs. This person was charged together with the appellant with the offences earlier referred to but when the trial of the case started before the Assizes, the Prosecution offered no evidence against him and as a result the case against him was dismissed and he was acquitted.
The appellant originally appealed against his conviction and the sentence imposed on him but at the beginning of the hearing of this appeal his counsel abandoned the appeal against conviction and limited it against sentence on the ground that the sentence imposed was manifestly excessive.
The main argument of counsel for the appellant against the sentence imposed on him by the Assize Court can be summarized as follows:
(a) The trial Court in passing sentence on the appellant disregarded the fact that his co-accused and co-felon was acquitted because the Prosecution did not offer evidence against him and that thus the appellant was left alone to bear the consequences of the offences with which he and his co-accused were facing. In other words, he was made the scapegoat for others.
(b) The trial Court did not sufficiently take into consideration the extent and the degree of the participation of the appellant in the planning and organization of the crime and, generally, the role of the appellant in the commission of the offences.
(c) The trial Court, in passing sentence, did not take into consideration the personal circumstances of the appellant and, in particular, that he is a refugee and a person suffering from personality disorders.
We now propose to deal with the first point of the arguments of counsel for the appellant but before doing so we would like to refer to the statement made by counsel appearing for the Republic in this appeal, who also appeared as the prosecution counsel in the Assize Court, after he was invited by the Bench to give an explanation why the Prosecution offered no evidence against the co-accused of the appellant in the Assize Court. In reply to our invitation counsel appearing for the Republic stated that the only available evidence against the co-accused of the applicant was that of the latter and a statement given to the Police by the co-accused. However, he stated, he decided to take the course he did for two reasons:
(a) That since the appellant decided to plead not guilty, he could not call him as a witness against his co-accused, and
(b) having regard to the circumstances under which the co-accused gave his statement to the Police, he and also the Police Officers who investigated the alleged commission of the offences, came to the conclusion that the statement of the co-accused was not a voluntary one.
For these two reasons, counsel said, he had no alternative but to offer no evidence against the other accused.
As regards the first and second submission of counsel for the appellant regarding the role played by the appellant in the commission of the offences for which he was found guilty, his counsel's argument before the Assizes was that the appellant was not the only person involved in the commission of the offences, that somebody else brought the drugs from abroad, who handed them to the appellant in order to carry them outside the Port of Limassol and to return them to that person, and that, therefore, the role of the accused was very limited both from the point of view of degree of responsibility and of the period of time during which he was and would have been involved in the commission of the offences. The role of the appellant, he further argued, was limited in that his involvement consisted only in the transportation of the drugs from the ship to outside the Port.
The trial Court considered this argument and came to the conclusion that the role of the appellant in the participation in the offence was the most difficult one as he was entrusted with the transportation of the drugs outside the controlled area of the Limassol Port. The trial Court further found that once the drugs were taken outside the Port, their distribution and/or exportation from Cyprus was from then on a rather much easier task.
We are in full agreement with this finding of the trial Court.
As regards the third submission made on behalf of the appellant, we find that the trial Court did in fact take into consideration all mitigating factors put forward by his counsel, namely that he was a first offender, his family commitments, his character and his personality disorders.
This Court, in a great number of cases of possession of drugs has pointed out that possession of drugs is a very serious offence and, in particular, possession for the purpose of supplying them to others. Possession of drugs is a public and social menace and a social problem and the Courts should deal with them severely.
Having considered all the relevant facts placed before the Assize Court, we find that it was open to it to impose the sentence of four and a half years' imprisonment which we consider not to be excessive.
The appeal, is therefore, dismissed.
Appeal dismissed.