JUDGEMENT

L. L. MENSAH, J.A.

The Appellant was one of three accused persons who were tried and convicted by the High Court, Koforidua on 7^th February 2014 for conspiracy to rob and robbery contrary to section 23(1) and 149 of Act 29 as amended by section 646 and section 149 of Act 29 as amended by Act 646.

Each of the Accused persons was sentenced to a term of 33 years on both counts which were to run concurrently. The learned trial judge also made an order that the sentences were to take effect from the day the accused persons were arrested and placed in lawful custody.

The brief facts of the case runs as follows: The complainant who featured as the first prosecution witness at the trial was a businessman living in New Tafo Akim. On 30^th April 2012 at about 7.00 am the complainant took his Hyundai truck with his driver one George Ansah. The 1^st Accused Stephen Asante was the driver’s mate. The complainant took with him the sum of GH₵28,500.00 en route to Accra for business purposes.

Unknown to complainant, the 1^st Accused had arranged with 2^nd, 3^rd and 5^th Accused persons to rob him at the outskirt of Adawso. The Appellant pleaded with the complainant to give him lift to his farm which he did, after the Appellant was standing at the road side and pretended to be going to farm.

At the outskirt of the village of Nsu Abenasu, the Appellant shouted at the driver and the driver stopped. On stopping the Appellant, 3^rd and 5^th Accused persons pulled out a knife, a cutlass and a toy pistol respectively on the complainant and succeeded in robbing him of the GH₵28,500.00. Thereafter they fled into a nearby bush. Though the complainant solicited the help of the inhabitants nearby to search for the Accused persons, they could not find them. A report was later made to the Tafo police. Meanwhile the Accused persons shared the money among themselves.

On the 10^th of May 2012, the 4^th Accused had information of the robbery and approached the A1 to give him part of the money or he would expose them. As a result A1 gave him GH₵250.00. Police however through intelligence placed surveillance over the Accused persons and arrested them on 14^th May 2012 at Nkurankan. The 5^th Accused however is at large.

The grounds of appeal is that the Appellant prays for mitigation of sentence in view of the circumstances surrounding the case.

On the additional grounds of appeal, the Appellant has the following:

1. That the Appellant regrets his action and it is out of deep remorse that he is praying for reduction of sentence.

2. That the Appellant is a first offender whose conduct has gone positive transformation in prison custody.

3. That the Applicant pleads with the Honourable Court to consider his age and reduce the sentence imposed on him.

4. That the Appellant has shown remorse and vows to keep away from all forms of crime in the future, hence his plea for mitigation of sentence.

What the above grounds of appeal mean is that the Appellant is not contesting the conviction, but the length of the sentence which he wants to be reduced for him.

Before we consider Appellant’s prayer for mitigation, we have to consider the role he played in the robbery in that morning on that 30^th day of April 2012.

It was the Appellant who pretended to be going to a farm and stopped the complainant’s vehicle and asked for a lift. Mid-way, the Appellant shouted on the driver to stop and the driver stopped. The Appellant and his other three gang members drew offensive weapons to terrorise their victim and snatched the amount of GH₵28,500.00. It was the Appellant who drew the cutlass. What this means is that the Appellant was at the thick of the nefarious affairs in robbing the victim of that huge sum of money. Indeed in answer to cross-examination by Appellant’s counsel of the A2, this is what the victim said:

Q. You saw them as human being but as to whether they are the person sitting here you are not in a position to tell?

A. Yes, I can identify him (A2) because he was the one who attacked me with the cutlass and when they arrested him I held him and said to him gentleman so it was you who did this to me; look at how small you look I can even beat you like my own child but you came and threatened me with a cutlass, so I know him. (my emphasis).

Q. I am suggesting to you that A2 was not the one you gave the lift to and he is not the person who attacked you.

A. He is the one because in the first instance when he boarded the car I saw him, and when he attacked me with the cutlass I saw him and when he was arrested I also saw him.

From the above exchange between the PW1 and Appellant’s counsel, the Appellant was one of the architects in the diabolical act. Indeed since it was the A1 driver’s mate who engineered the whole plan, he had to pretend that he was also a victim during the robbery hence the bravado of the Appellant.

If in this appeal the Appellant is calling on us to tamper justice with mercy, we have to consider the above roles he played in the robbery, particularly since he says he claims to be a first offender.

In considering whether or not to mitigate the sentence imposed on a crime like robbery as in this instant case, we have to consider what factors determine the length of sentence and the factors the trial court considered. These include intrinsic seriousness of the offence; the degree of strong disapproval by the law-abiding citizens of that particular crime; the way and manner the plan was executed, the prevalence of the crime within the particular locality where the offence took place, or in the country as a whole; the aggravating or mitigating circumstances such as youth, good character and the manner in which the offence was committed. See the case of Kwashie v. The Republic (1971) 1 GLR (1971) 1 GLR 488 CA.

In the case of Kamil v. The Republic (2011) 1 SCGLR 302, the court held as follows:-

Where an Appellant complained about the harshness of a sentence he ought to appreciate that every sentence is supposed to serve a five-fold purpose, namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to the country.

In the instant case, the learned trial judge has this to say before passing sentence.

In deciding on the sentence to be imposed, the court cannot lose sight of the upsurge of the incidents of robbery on the society and its attendant threat to the security of the state. The court will also take into account the manner in which the accused persons planned and executed their design when the unsuspecting complainant, who thought he was playing the Good Samaritan and offered to people he believed were farmers, only to have them robbed him of such a huge amount. Bearing this in mind, the Accused persons must be given such a deterrent sentence as will send a strong signal to others contemplating such a life that when they embark on such criminal enterprise and are caught they will spend a better part of their lives in prison. Accordingly each of the Accused persons is sentenced to 33 years imprisonment in hard labour. Sentence to take effect from the day they were arrested and placed in lawful custody.

From the above, it is clear that the learned trial judge did not pass the sentence mechanically. He took cognizance of the prevalence of armed robbery in the society, the callous manner in which it was planned and executed, and the huge amount of money lost through the robbery.

Although the Appellant and his gang were arrested barely two weeks after the robbery, they recklessly spent the whole amount and nothing was recovered as a respite for the complainant victim.

From the totality of the evidence, if there is any mitigating factor at all, it would be the age of the Appellant, and the fact that he is a first offender and a young one at that. However given the callous manner in which the robbery was executed, we think what we can do to the Appellant is to reduce the sentence a bit.

We have noticed that in sentencing the Appellant and his gang, the learned trial judge made the “sentence to take effect from the day they were arrested and placed in lawful custody”. The judge however does not have jurisdiction to impose a sentence to take retrospective effect from the date of arrest, that is to say the 14^th day of May 2012. This is in clear breach of section 315(3) of the Criminal and Other Offences Procedure Act (1960) (Act 30). This section provides that a sentence of imprisonment commences on and includes the day the judgment was delivered. It is thus provided:

A sentence of imprisonment commences on and includes the day on which it is pronounced.

From the above, it is clear that the learned trial judge is wrong to make the sentence retrospective effect from the day of arrest. Perhaps, the trial judge has allowed article 14(6) of the Constitution to operate on his mind. This is what article 14(6) states:

“where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment”.

If one does not make a careful reading of article 14(6) he would be misled into disregarding section 315(3) of Act 30 aforesaid, and have article 14(6) to be his sentencing guide.

The Supreme Court and Court of Appeal in a number of cases expressed their disapproval of this retrospective sentence of remand prisoners. It was if a remand prisoner has been converted into a convict prisoner. See the case of Bosso v. The Republic (2009) SCGLR 420 and Ogo and Anor vs. The Republic (1999-2000) 1 GLR 169 CA.

And in The Republic vs. Uyanwune (2013) 58 GMJ, the court considered the issue of retrospective sentencing and came to the following conclusion:

Retrospective sentences have serious legal implications. For example, the rights of remand prisoners are different from convicts and remand prisoners who were not convicts and enjoyed all the rights of remand prisoners who were to be convicted as convicts ... An important legal issue in retrospective sentencing is that if a sentence is to take retrospective effect, would the state compensate someone who was on remand for years and was acquitted and discharged after the trial? There is no provision in the law for such a person to get compensation and any sentence which has retrospective effect is bad in law.

Taking into consideration the combined effect of section 315(1) of Act 30 and Article 14(6) and 15(3), we think the learned trial judge was in error as aforementioned. This does not mean that the court should ignore the clear and unambiguous provisions of article 14(6) of the Constitution. Bearing this in mind, the Appellant’s sentence should take effect from the 7^th of February 2014. However, in place of the 33 years, Appellant is sentenced to 25 years IHL effective from the date of his arrest. What this means is that the appeal succeed in