The Court of Appeal recently increased an 18-month prison sentence imposed at first instance to three years in a case of assisting an alien to stay illegally in the Republic, following an appeal by the Attorney General, finding the original sentences "manifestly insufficient".
As mentioned in the decision, with his appeal the Attorney General claims that the 18-month imprisonment for the offenses of assisting a foreigner to stay illegally in the Republic in violation of Article 19A(2) of the Aliens and Immigration Law, Chapter 105, is manifestly insufficient and should be increased (categories 2, 3, 6, 7, 8).
"On the sole ground of appeal, the Attorney General submits that the sentence imposed is manifestly inadequate in view of the seriousness of the offences, the prescribed sentence, the case law and the need for general and specific prevention and deterrence. It is his position that the Court of First Instance did not give due weight to the facts in question and that, on the contrary, it gave excessive weight to the mitigating factors," it states.
It is noted that the Court of Appeal has the power to intervene only where the imposed penalty, objectively considered, is either manifestly insufficient or manifestly excessive. In these cases it is up to the Court of Appeal to determine the appropriate penalty.
He states that the offenses to which the Respondent has admitted undoubtedly belong to the more general category of offenses related to illegal entry, illegal transit and illegal stay in the Republic.
"Certainly judicial knowledge is taken of the ever-increasing frequency with which such cases are presented before the courts, an element that requires their strict treatment targeting the special (in appropriate cases) but also primarily the general prevention and prevention of committing similar offenses from future would-be offenders".
"The Respondent himself is a person who had arrived in Cyprus through the Occupied. Although he moved to the free areas by applying for asylum, very soon after he was active in assisting foreigners to stay illegally on the territory of the Republic".
In particular, he states that on two occasions, in October and November 2021, he conspired with two other persons to transport, for a fee, in the first case two persons and in the second three persons, to the free areas, thus helping them to remain on the territory of the Republic . These five persons had all arrived in Cyprus through the Occupied at different times (during the years 2016, 2017, 2019 and 2021) and were residing in the Occupied areas either working or studying, until they decided to move.
"The Court of First Instance ruled that it did not emerge from the facts as presented before it that Ephesian had acted in the context of a "criminal organization", meaning of course in the meaning of the relevant term in section (3) of Article 19A. But, on the other hand, it cannot be ignored that there was certainly a three-member conspiratorial group which, as it turns out, acted on the basis of a plan, planning, consultation and for a fee in not one but two cases to assist the foreigners in violation of every principle of law" , reports the Court of Appeal.
But we are of the opinion, he adds, that here it was imposed, in the light of all the circumstances and especially due to the increase of the penalty by the Law, to give a deterrent character to the penalties imposed, as the representative of the Appellant rightly indicated.
“The sentences imposed neutralized both the element of seriousness in the basis of the prescribed sentence and the element of deterrence. We believe that the action based on an organized plan of a group of persons should also be reflected in the penalties, and this in not one but two cases in which a total of five foreigners were assisted to remain illegally in the Republic for financial gain", emphasizes the Court of Appeal.
He goes on to say that the sentences are judged to be grossly inadequate.
"Taking into account all of the above, we judge as appropriate and impose a prison sentence of 3 years on each of the categories 2, 3, 6, 7 and 8 which are concurrent. The appeal is allowed and the penalties imposed at first instance are increased as above", he concludes.
The case at the Court of Appeal, with judges H.B. Charalambous, G. Kyriakidou and M.G. Piki, it was unanimous.
Source: KYPE