JUDGMENT

HONYENUGA, J.A.

The appellant and another were convicted by the Circuit Court, Tarkwa on the 3^rd February, 2004 on the offences of conspiracy to commit crime contrary to section 23 of the Criminal Offences Act, 1960, (Act 29) and defilement contrary to section 101 of the Criminal Offences Act, 1960 (Act 29) as amended by section 101 of Act 554, 1998. The appellant like his accomplice were sentenced to 20 years imprisonment with hard labour on each count but on an appeal to the High Court, Sekondi, his appeal was on 4^th April, 2006 dismissed and his sentence enhanced to the maximum sentence of 25 years imprisonment with worse strenuous labour imaginable.

The facts of this appeal were that on the 13^th November 2003, at about 6pm, the complainant, a fifteen year old JHS pupil went to sell rice at Omanpe/Abochie. At about 6.30pm, the complainant set off to go back home and on the way, she saw the appellant and the convict following her. The convict proposed love to her but she informed him that she was an apprentice and therefore he should inform her mother. Both the convict and the appellant then decided to follow her to her village. Upon reaching the village, the convict pushed the pan she was carrying which contained tomatoes, pepper and money and it fell down. While the complainant knelt down in an attempt to pick the items on the ground, the convict held her neck, while the appellant held her legs and they dragged her into a secondary forest nearby and put her under a mango tree. In the process, they forcibly tore and removed her pants while the appellant pinned her down while the convict had sexual intercourse with her. After the convict had satisfied himself, he held the neck of complainant and the appellant also forcibly had his turn. Later, the appellant held the neck of the complainant, pinned her down and the convict forcibly had another sexual intercourse with her. After satisfying themselves, both convicts gave her a total of ¢5,000.00 (old cedis) and allowed her to go home. Her pants and the underskirt were all torn and she left them in the bush together with her sandals. While heading towards home, the complainant met a woman and narrated her ordeal to her and in the process she fell down and collapsed. Water was poured on her before she regained consciousness. The woman took her to her uncle who together took her to the clinic but she was later referred to the Enchi Hospital.

A report was made to the Police, where she wrote a statement and was issued with a Medical Form to attend hospital where she was treated. The convicts were then charged with the offences as charged. The convict and the appellant were convicted on both counts and were sentenced to 20 years imprisonment with hard labour on each count to run concurrently. The appellant later filed an appeal to the High Court, Sekondi, where the appeal was dismissed and his sentence was enhanced to the maximum sentence of twenty five (25) years imprisonment with the worse strenuous labour imaginable in prison circles.

The appellant being aggrieved by the enhanced sentence, filed the instant appeal against the sentence based on the following grounds:-

“That the maximum sentence of twenty-five (25) years is harsh and excessive”.

Arguing the appeal, learned counsel for the appellant contended that although the offence charged is a serious one, the sentence would not serve the interest of justice. He further contended that in determining a sentence, the court is equally enjoined to consider how to reform the convict and not necessarily use the sentence is a deterrent. Counsel submitted that in sentencing the appellant, the learned High Court Judge failed to consider the overall goal of sentencing.

Counsel stated that an appeal is by way of rehearing and that the court has a discretion in imposing sentences. He referred to Mohammed Kamil v The Republic [2011] GMJ 1 SC. Counsel contended that the interest of the appellant was not considered and that the sentences should not be seen as counter-productive. Counsel contended that the appellant is a youth who has learnt his lessons and prepared to live a good and meaningful life should the appeal succeed. He further stated that the inability of the appellant to control his sexual libido landed him in this unfortunate situation. Counsel submitted that the 25 years IHL imposed on the appellant is too harsh and same be reduced.

On the other hand, the learned Chief State Attorney disagreed with the submissions of counsel for the appellant and referred to the factors that guide the court in determining the length of sentence. She referred to Frimpomaa @ Iboma v The Republic [2012] 1 SCGLR 297 at 303, holding 8, in support of her contention. The Chief State Attorney submitted that defilement is a very serious offence and as such a deterrent or exemplary punishment is appropriate to indicate society’s disapproval of the offence. She referred to the judgments of both the trial Circuit Court and that of the High Court in support. She submitted that since the sentence of 25 years was not beyond the limit allowed by law, the sentence was not out of proportion to the offence committed. She submitted finally that there is absolutely no good reason for interfering with the sentence imposed by the High Court, and that this court should consider section 31(2) of the Courts Act, 1993, Act 459 which stated that, an appeal should be dismissed if the court considered that no substantial miscarriage of justice has actually occurred.

Before I consider the written submissions, I would reproduce the offence of Conspiracy contrary to section 23(1) of Act 29 and defilement as stated in section 101 of the Criminal Offences Act, 1960, Act 29 as amended by Act 558 of 1998 as follows:-

“Conspiracy

23(1) Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence”

101. For the purposes of this Act, defilement is the natural or unnatural carnal knowledge of a child under sixteen years of age.

(1) A person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent of that person other persons, in circumstance which prove that the accused knew the time of the commission of the criminal offence that the other person has a mental incapacity commits a criminal offence and is liable on summary conviction to a term of imprisonment of not less than five or not more than twenty-five years”.

In the trial Circuit Court, the court sentenced the convict and the appellant as follows:-

By Court: In sentencing the accused persons, I take into consideration the fact that the 2^nd accused person (sic) forcibly dragged the victim into the bush, tore her pant and underskirt and each of them had sexual intercourse with her. While the 1^st accused was pinning the helpless victim to the ground and the 1 ^st accused was having sexual intercourse with her. The conduct of the accused persons, call for a stiff punishment. Accordingly, I sentence the 1^st accused to 20 years IHL on each count. I also sentence the 2^nd accused to 20 years IHL on each count.

Sentences to run concurrently”.

On appeal to the High Court, the Court dismissed the appeal and sentenced the appellant as follows:-

“By Court: I find the accused persons’ act to be very brutish and downright barbaric. To have sex in turns with that young girl in the bush with the kind of force described is the worse form of humiliation that a girl could go through.

I will impose the maximum 25 years and direct the prisons authorities to place the two accused persons under the worse strenuous labour imaginable in prison circles”.

Was the appellate High Court justified in imposing the maximum sentence on the appellant? The principles governing sentencing were stated in Gligah & Anor. v The Republic [2010] SCGLR 870 holding 6, thus:-

“…. Once the guilt of an accused person had been established in a criminal trial, using the accepted standard and/or burden of proof, the issue of punishment must be considered using different criteria. That was because in imposing sentence on a convicted person, the courts normally took into consideration factors such as whether the sentence was of a deterrent, reformative or retributive nature. Sometimes, the criminal and previous antecedents of the accused were taken into consideration. In addition, the courts must consider the status and type of profession and/or work the accused person did before sentence was imposed”.

Furthermore, in Frimpong alias Iboman v The Republic [2012] 1 SCGLR 297, headnote (8), the Supreme Court affirmed the principles for imposing sentences upon a convicted person, namely in determining the length of sentence, the factors which should be considered by the trial judge were:-

“(1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place, or in the country generally; (5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the court found an offence to be grave, it must not only impose a punitive sentence, the good record of the accused would be irrelevant.

Furthermore, on a complaint by an appellant as to the harshness of a sentence, he ought to appreciate that every sentence was supposed to deter others, to reform the offender, to appease the society and to be a safeguard to the country. Kwashie v The Republic [1971] 1 GLR 488 at 493 CA; Adu-Boahene v The Republic [1972] 1 GLR 70 CA; and Kamil v The Republic [2011] SCGLR 300 cited.

Moreover, the Supreme Court has delivered itself on the principles to be considered in sentencing first offenders in the same Frimpong alias Iboman v The Republic (supra) Holding (7) as follows:-

“It was generally accepted that, a first offender must normally be given a second opportunity to reform and play his or her role in society as a useful and law-abiding citizen. It was therefore desirable for a first offender to be treated differently when a court had to consider the sentence to be imposed on a first offender vis-à-vis a second or a habitual offender. However, notwithstanding the general principle that first offenders should be treated leniently when sentence was being imposed, the measuring rod or standard in any circumstance was the punishment provided therein. Where, as in the instant case, the minimum sentence had been imposed under section 149 of the Criminal and other Offences Act, 1960 (Act 29) as amended by the 2003 (Act 646), then the hands of the courts were tied. Secondly, the court should also consider whether the first offender had indeed, acted as a first offender; that could be deduced from the type of crime committed, the circumstances under which the crime had been committed and the casualties, if any”.

In the instant appeal, a perusal of the record of appeal indicate that all the factors involving the imposition of sentences were considered by both the trial Circuit Court Judge and the High Court. Both the convict and the appellant had a premeditation with which the criminal plan was executed and their conduct is reprehensible. The learned High Court was right in describing their conduct as “brutish and downright barbaric”. The act was very serious considering the circumstances surrounding the committal of the offence. The conduct of the appellant and the convict rightly deserve the punishment meted to them. The sentence was to be punitive, reforming and deterrent to appease the society.

However, since an appeal is by way of rehearing, we think that the learned High Court Judge should have dismissed the appeal before him and maintained the sentence of twenty (20) years IHL imposed on the appellant and the convict. The judge should have considered the youthfulness of the appellant and the fact that he is a first offender who must be given second opportunity to reform after serving the sentence. We think that the learned High Court Judge over-reacted to the evidence on record and divested himself of any lenient consideration. The sentence of twenty (20) years imposed on the appellant by the trial court was fair in the circumstances but the imposition of the maximum sentence of twenty-five (25) years was too harsh and excessive.

We are mindful of the principle of law that, where the first appellate court had confirmed the findings of the trial court, the second appellate court would not interfere with the concurrent findings, unless it was established with absolute clearness that some blunder or error resulting in a miscarriage of justice, was apparent in the way in which the lower court dealt with the case. See Koglex Ltd. (No.2) v Field [2000] SCGLR 175 Holding (2); Achoro v Akanfela [1996-97] SCGLR 209; Obeng v Assemblies of God Church, Ghana [2010] SCGLR 300; Gregory v Tandor IV & Hanson [2010] SCGLR 971 Holding (2) and Ayikai v Akramah II & Ors. [2016] 101 GMJ 186 at 206.

A perusal of the enhanced sentence imposed on the appellant imply a miscarriage of justice in that the said sentence on appeal affected only the appellant, while his accomplice who did not appeal served a lower sentence. Therefore this court would interfere with the sentence imposed by the High Court. Allied to this is the principle that the courts should achieve uniformity or parity in sentencing and avoid inconsistency in sentencing. In Abbot v The Republic [1977] 1 GLR 326, the court held that:-

“(1) Trial Courts should balance the Scales of Justice equally when imposing sentences; especially when the accused person had committed a joint offence and stood on the same footing; must be a good ground on appeal against sentence”

Further in Lodonu v The Republic [1973] 2 GLR 355 CA, it was held that where two or more accused persons were tried on the same charge and the evidence adduced before the court with regard to all the accused persons was substantially the same, the conviction of one and the acquittal of others of the accused persons would be inconsistent result, unless it was shown that the apparent inconsistency in the result of the trial was attributable to some and not the others of the accused persons. Where there were no such matters of difference, the result were inconsistent and could not stand.

In the instant case, although the trial Circuit Court complied with the law by imposing a consistent or balanced sentence on the convicts, the learned High Court on appeal, was wrong in imposing an enhanced sentence on the appellant, thus created a disparity between the sentence imposed on the appellant and his accomplice who were jointly convicted and sentenced together. The court would therefore interfere with the enhanced sentence imposed on the appellant since it was inconsistent.

Moreover, it is trite that a court has a wide discretion in imposing sentence so long as the sentence is within the statutory limits imposed on the court. The exact sentence passed in most cases depends to a large extent upon the discretion of the court as well as its statutory jurisdiction. Article 296 of the 1992 Constitution enjoins that discretionary power be exercised thus:-

“(a) The discretionary power shall be deemed to imply a duty to be fair and candid.

(b) The exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law”.

In Simmons v Commissioner of Police [1963] 1 GLR 205, the court held that the power of a court to impose a fine is discretionary but the discretion must be exercised judicially. The court further held that where it is shown that the trial court acted on wrong principles or that the sentence is manifestly excessive, the appellate court will interfere with the sentence.

In the instant appeal, we think that the first appellant court did not adequately exercise its discretion judiciously and that the enhanced sentence imposed on the appellant was manifestly excessive, considering that the offence carried a minimum sentence of five (5) years and a maximum of twenty-five (25) years.

Furthermore, although counsel for the appellant failed to raise the matter of Article 14(6) of the 1992 Constitution which the trial judge and the High Court should have taken it into consideration before imposing sentence, we would consider it since an appeal was by way of rehearing. Further, it was an issue that arose from the facts. Article 14(6) of the 1992 Constitution provides:-

“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”.

Article 14(6) of the 1992 Constitution therefore enjoined trial judges as well as appellate judges to take the period spent in lawful custody into consideration before imposing the term of imprisonment. This constitutional provision must be expressly stated that the period spent in lawful custody was taken into consideration. See Bosso v The Republic [2009] SCGLR 42, at 429-430; Dexter Johnson v The Republic [2011] 2 SCGLR 601 and Frimpong alias Iboman v The Republic (supra).

In the instant case, neither the appellant nor the appellate High Court made the slightest reference to the constitutional provision in Article 14(6) or words, express or implied. Since they failed, we would do what the trial and the appellate court failed to do. The only just conclusion was that both courts failed to take the constitutional provision into account before settling on the term of imprisonment.

A perusal of the record of appeal indicate that the appellant was in custody from 13^th

November 2003, the day of the offence until the 3^rd February 2004, before the appellant was convicted and sentenced by the trial Circuit Court. This means that the appellant was in lawful custody for about three months. We would therefore take into consideration the three months that the appellant spent in lawful custody before the sentence was imposed on him in deciding this appeal. The sole ground of appeal succeeds.

In conclusion, the appeal against sentence succeeds and it is upheld. The sentence of twenty-five (25) years IHL on each count imposed on the appellant is hereby set aside and in its place, we would affirm the sentence of twenty (20) years imprisonment with hard labour imposed by the Circuit Court on each count from the date of the sentence that is 3^rd February, 2004. The sentences are to run concurrently.