A. M. DOMAKYAAREH (MRS), J.A

1. This is a criminal appeal against the judgment of the High Court, Kumasi dated 30^th July 2015. The facts ascertained from the Record of Appeal are that the complainants in the case, two in number are students who reside at Ahinsan Estates, a suburb of Kumasi. The 1^st accused, who is the appellant herein, is a driver, the 2^nd accused a driver’s mate, the 3^rd accused a fitter while the 4^th accused is an auto mechanic. There were 5^th and 6^th accused who were at large during the trial and have since remained at large. On 4^th May 2011, at about 8:30pm, the 1^st complainant drove his brother’s Navara Pick up vehicle with Registration No. ER 7744 -10 from his house at Ahinsan Estates to a shop located in the same area to purchase credit for his phone. The said shop was being manned by the 2^nd complainant. Whilst at the shop all the accused persons “vigorously” attacked the complainants in a bid to rob them. The accused persons pinned them down to the ground and when the 1^st complainant resisted, the accused persons inflicted cutlass wounds on him. The accused persons succeeded in over powering them and collected the keys to the Nissan Navara Pick-Up vehicle valued at GH⊄60,000 as well as his Samsung Galaxy Mobile phone. The accused persons then drove away the vehicle, leaving behind two caps which two of them were wearing at the time.

2. The 1^st complainant who was bleeding profusely as a result of the attack was rushed to the hospital where he was treated. A report was then made to the Police. On 14^th May 2011, the 3^rd and 4^th accused persons were arrested by the Asawasi Police upon a tip off. They both denied the offence but stated that they had overheard the other accused persons talking about the robbery incident at a tea seller’s place. On 14^th June 2011, the 2^nd accused was arrested and he mentioned the others as his accomplices. On 28^th July 2011, the 1^st accused, the appellant herein was arrested and he admitted his involvement in the offence. All the accused persons were subsequently arraigned before the Circuit Court, Kumasi on 21^st October 2011 on four counts, namely, one count of conspiracy to commit robbery contrary to Sections 23(1) and 149 of Act 29/60, robbery contrary to Section 149 of Act 29/60 as amended by Act 646, causing harm contrary to Section 69 of Act 29/60 and assault contrary to Section 84 of Act 29/60.

3. The accused persons, with the exception of the 5^th and 6^th accused who were at large, pleaded not guilty to all the charges After full trial by the Circuit Court, the Circuit Judge acquitted and discharged the 4^th accused from all the charges. He however convicted A1, A2 and A3 on the count of conspiracy and sentenced each of them to 30 Years Imprisonment with Hard Labour. A1 and A2 were convicted of Robbery and sentenced to 50 Years Imprisonment each with Hard Labour. A3 was acquitted and discharged on the count of Robbery. A2 was also convicted on the third count of causing harm and sentenced to 3 years Imprisonment with Hard Labour. All the sentences were to run concurrently.

The appellant herein, was dissatisfied with his conviction and sentence. He appealed against both at High Court, Kumasi. The High Court dismissed the appeal against conviction but upheld his appeal on sentence. The High Court accordingly reduced the 50 years IHL for the robbery to 30 years IHL.

The appellant was still aggrieved and dissatisfied with the outcome of his Appeal to the High Court. He has thus brought the instant appeal to this court per his Petition of Appeal filed on his behalf by counsel on 9^th March 2016.

4. The grounds of appeal as stated therein are as follows:

The Appellate Court, High Court, Kumasi erred when it failed to give reasons for its rejection of the appeal against conviction

The Appellate Court, High Court Kumasi erred when it failed to consider the particulars of error in law raised by Counsel for the appellant

The Court erred when it failed to consider the case of the defence/appellant

That both the trial court and the appellate High Court erred by convicting the appellant for the offence of conspiracy to commit robbery when the prosecution could not prove the actual role played by the appellant.

That the sentence of 30 years IHL on count one and 30 years IHL on count two was harsh and excessive

GROUND (a)

5. In respect of the conviction of the appellant by the trial Circuit Court, this is what the appellate High Court judge said at page 1 of his judgment which can be found at page 104 of the Record of Appeal.

“I have looked at the record of appeal and read the written arguments against the conviction and sentence and for those against it. I find no reason to interfere with the conviction of the appellant. The appeal against conviction fails and same is dismissed”.

Counsel for the appellant submitted that by this statement the appellate High Court Judge had failed to give reasons for his judgment concerning his upholding of the conviction and that this is sufficient ground for his decision to be overturned on this appeal.

Counsel referred to Section 331(2) of the Criminal and Other Offences Act 1960, (Act 30) which stipulates that “The judgment shall be recorded in writing and shall contain the point or points for its determination, the decision and the reason for the decision and shall be dated and signed by the Justice at the time of pronouncing it”. Counsel referred to cases of MENSAH & ANKRAH VRS. STATE (1961) GLR 64 S C and R V SARPONG (1959)1 GLR 383 C A where the trial judges failed to give reasons for their judgments and the convictions were reversed as being contrary to law. Counsel however conceded that in exceptional cases where the facts are indisputably clear, the court is not mandated to write a reasoned judgment as can be seen in the case of C.O.P. VS ASAMOAH (1958) 3 WALR 458 C A

6. Counsel appears to have mixed up the trial Circuit Court judgment and that of the appellate High Court. This is because this ground of appeal is against the judgment of the appellate High Court but he concluded his submission on this ground of appeal by saying that the learned trial judge erred when it failed to give any reason for its judgment and that this occasioned a substantial miscarriage of justice. This is certainly far from the case for were it to be so, it would definitely have been a ground of appeal to the High Court but there was no such ground of appeal as can be seen from the Petition of Appeal to the High Court filed on 12^th March 2015 at page 57 of the ROA. In any event, the trial Judge gave reasons for his judgment.

This was pointed out by Counsel for the respondent who submitted that the trial judge complied with Section 177(1) of Act 30 which provision is in pari materia to Section 331(2) of the same Act 30. Counsel also submitted that the cases of KINI V THE REPUBLIC (1980) GLR 412 and MAINOO V REPUBLIC [1984-1986] 2 GLR 727 demonstrate the fatal consequences of failure to comply with Section 177 (1) of Act 30. Counsel for the respondent also emphasised that on appeal to the High Court, the appellate High Court judge was therefore duty bound to have subjected both the findings and reasons of the trial judge to an analytical scrutiny in compliance with Section 331(2) of Act 30. Counsel therefore conceded the argument of Counsel for the appellant that the appellate High Court judge failed to comply with Section 331(2) of Act 30. She however submitted that since an appeal is by way of rehearing this court should review the whole case by analyzing the entire Record of Appeal so as to satisfy our selves that the evidence on record reasonably or amply supports the judgment of the trial court.

We must say that both counsel displayed some amount of confusion on the import of Sections 177(1) and 331(2) of Act 30. Even though the two provisions are similar, Section 177(1) relates to summary trials while Section 331(2) relates to trials on indictment. The instant case was tried summarily at the Circuit Court and its character does not change on appeal to the High Court. Once it is not contested that the trial judge complied with Section 177(1) of Act 30, counsel cannot complain about non-compliance with Section 331(2) of Act 30 as the trial was not on indictment.

7. As a function of rehearing, we have subjected the judgment of the appellate High Court judge on the conviction of the appellant to a critical review in the light of all the evidence on record and we hold a different view from the submissions of both Counsel. Upon a literal interpretation of what the appellate High Court said, it is true that he did not proffer any reasons for his judgment. But what is the true meaning of his judgement when analysed critically? He said he had looked at the Record of Appeal which contains the evidence and the judgment of the trial court. He said he had also read the written submissions for and against the conviction. He said he found no reason to interfere with the conviction of the appellant. The true meaning of this is that the appellate High Court judge agrees with the judgment of the trial judge which is compliant with Section 177(1) of Act 30 where the trial judge made findings upon which he rested his conclusions and the reasons for his decision. It also means that the Appellate High Court judge rejected the arguments made in the written submissions filed on behalf of the appellant. The Appellate High Court judge was not working from a “clean slate” like a trial judge who is duty bound to analyse and synthesise the scattered pieces of testimony and evidence before arriving at his Judgment. The reasons for the judgment of the Appellate High Court judge can therefore be deduced from the judgment of the trial court.

8. Besides, as a function of rehearing, we have reviewed the entire Record very carefully and we are satisfied the trial Circuit judge was right in believing the evidence led by the Prosecution that the appellant and his co-conspirators were at the scene of the crime, took active part and that it was the appellant herein who took charge of the vehicle after the robbery and drove it off with the others on board. All the ingredients of robbery as per the definition of same in Section 150 of the Criminal Offences Act 1960 (Act 29) were established beyond reasonable doubt. The said Section 150 stipulates as follows:

“A person who steals a thing is guilty of robbery if in and for the purpose of stealing the thing, he uses any force or causes any harm to any person, or if he uses any threat or criminal assault or harm to any person, with the intent thereby to prevent or overcome the resistance of that or of other person to the stealing of the thing”.

The evidence on Record has demonstrated clearly that the appellant and his co-conspirators stole the vehicle with the use of force and harm when the complainants resisted the robbery.

No miscarriage of justice has been occasioned by the brief manner in which the appellate High Court judge dismissed the appeal against conviction. Ground (a) of the grounds of appeal is accordingly dismissed.

GROUNDS (b) & (d)

The Appellate Court, High Court Kumasi erred when it failed to consider the particulars of error in law raised by Counsel for the appellant

That both the trial court and the appellate High Court erred by convicting the appellant for the offence of conspiracy to commit robbery when the prosecution could not prove the actual role played by the appellant.

9. In the appeal before the High Court, one of the two grounds of appeal was that the conviction of the appellant was improper and wrong in law. The appellant listed as many as six errors of law committed by the trial Judge, namely:

Convicting the appellant for the offence of robbery when the facts of the case do not amount to robbery/do not support the offence of robbery

Convicting the appellant for the offence of robbery when the prosecution failed to prove the appellant’s guilt beyond reasonable doubt as the appellant succeeded in creating doubts for the offence of robbery.

That the conviction is against the weight of evidence adduced at the trial

Convicting the appellant for the offence of conspiracy to commit robbery when the prosecution could not prove the actual role performed by the appellant.

Convicting the appellant on uncorroborated evidence by the complainant

By sentencing the appellant to 50 years imprisonment without considering any of the mitigating factors in passing sentence

10. The gravamen of Ground (b) of the Grounds of appeal is that the appellate High Court failed to consider these particulars of error of law raised by Counsel for the appellant.

We must right away dismiss the third “error of law” listed herein as under the rubric of the conviction being against the weight of evidence adduced at the trial no point of law is permitted to be argued.

11. Counsel for the appellant submitted that the prosecution could not prove the guilt of the appellant beyond reasonable doubt as required by Section 11(2) of the Evidence Act 1975 [NRCD 323] in that the prosecution’s case was fraught with inconsistencies. Counsel submitted that PW1 who was the complainant that went to buy the recharge card vividly recalled in his testimony the exact persons who attacked him on that day but that in the facts as disclosed by the Prosecution, PW1 is said to have identified them as two of his assailants but he could not testify against them at the trial save to say that he saw them at the scene of the crime which led to the acquittal of A4. Counsel further submitted that because PW1 testified that ‘Because of the beating I could not identify who was holding what’ it meant that his recollection of what occurred on that fateful night was somewhat blurred and this is a sufficient doubt to torpedo the appellant’s conviction.

12. On the inconsistencies pointed out by Counsel for the appellant, Counsel for the Respondent submitted that the facts of the case given by the Prosecutor who was not at the scene of the crime is not part of the evidence that can be used to prove the existence or non-existence of a fact. Indeed, under the interpretation section of the Evidence Act, specifically Section 179 “evidence” is defined to mean testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or non-existence of a fact”. It is well known that the facts presented by the Prosecutor are not made from the Witness Box nor made under oath or affirmation to be considered as part of the evidence at the trial. Therefore, any inconsistency between the facts given by the Prosecution and PW1’s eye witness account is immaterial and has no relevant bearing on the judgment and cannot in anyway impair the credibility of PW1. Indeed, the evidence of PW2 who was the shop attendant on that fateful night, corroborated the evidence of PW1. Additionally, the judgment of the trial judge clearly shows that he extensively considered how the prosecution led sufficient evidence to establish the guilt of the accused to the required standard of proof which led him to believe same as opposed to the defence put up by the appellant.

13. The appellate High Court judge stated that he considered the Record of Appeal which includes the judgment and found no reason i.e. no lapses to signal him to depart from same. Again, the Written Submission filed on behalf of the respondent at the appellate High Court, found at page 93 et seq of the ROA discussed extensively the evidence that the Prosecution led to prove the ingredients of the various offences for which the appellant and his co-conspirators were charged.

Under Ground [d] of the Grounds of Appeal, Counsel submitted that both the trial court and the appellate High court erred when thy convicted the appellant of conspiracy to commit robbery because the evidence on record did not disclose that the appellant planned on the spur of the moment or previously deliberated with the other accused persons to collectively commit the offence of robbery.

Section 23 of the Criminal Offences Act, 1960, (act 29) defines Conspiracy as follows:

“If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be.”

Counsel submitted that neither PW1 nor PW2 could vividly describe the role played by each of the accused persons and that therefore they had mistakenly identified the appellant.

From the definition of conspiracy, the following ingredients need to be proved.

There must be two or more persons

The persons must either agree or act together, whether with or without any previous concert or deliberation

That they had a common purpose

That the common purpose must be either to commit or abet that crime.

14. The beef of the argument by the appellant’s counsel against the conviction of his client for conspiracy involves the second ingredient since he contends that the accused persons had not planned on the spur of the moment or previously deliberated to commit the crime.

Counsel seems to have lost sight of the portion of the definition of conspiracy which says that there need not be any previous concert or deliberation among the accused persons for conspiracy to be consummated. What is important is that they acted together and this is what happened in the instant case. We are admonished by the Cannons of Interpretation to read documents or phrases as a whole in order to arrive at the proper meaning. Partial or selective reading always leads to a wrong result. In the case of AGOGROBISAH V. THE REPUBLIC [1995-96] GLR 557 Baddoo JA stated that in order for accused persons to be convicted for conspiracy, they must have acted together and that the presence of an appellant at the time the crime was committed was proof against him of an involvement in a conspiracy. This condition was satisfied from the facts and evidence in this case hence the appellant was rightly convicted of the offence of conspiracy.

15. Authorities abound on what amounts to conspiracy in the Law Reports. In THE STATE V. YAO BOAHENE [1963] 2 GLR 554 AT 565. Sowah J (as he then was) stated thus:

“To constitute an indictable conspiracy there must be an agreement between the conspirators to do some common thing. Whether they had met each other or not does not matter in the slightest degree so long as they are working for the same common project. …”

Another relevant case is COMMISSIONER OF POLICE V. AFARI & ADDO [1962] 1 GLR 483 at 486 where Azu Crabbe JSC (as he then was) stated that:

“It is rare in conspiracy cases for there to be direct evidence of the agreement which is the gist of the crime. This usually has to be proved by evidence of subsequent acts, done in concert and so indicating a previous agreement.”

Pitched against these authorities the evidence on Record clearly shows that the appellant was rightly convicted for the conspiracy to commit robbery.

16. Counsel for the appellant also contended that the Prosecution failed to establish any of the pertinent ingredients of the offence of robbery. In his view, the Prosecution only gave a vague account of the appellant’s involvement and was not able to prove that he had used the threat of force or harm to overcome the resistance of the complainants to rob them of their property.

What are the ingredients of robbery? These can be found in the definition of robbery in Section 150 of the Criminal Offences Act, 1960, (Act 29). As already indicated, the said section defines robbery as follows: “A person who steals a thing is guilty of robbery if in and for the purpose of stealing the thing, he uses any force or causes any harm to any person, or if he uses any threat or criminal assault or harm to any person, with the intent thereby to prevent or overcome the resistance of that or of other person to the stealing of the thing”.

From this definition, the ingredients of robbery are that:

·         The accused stole something from the victim of the robbery;

·         In stealing the thing, the accused used force, harm, threat of criminal assault on the victims;

·         The intention of doing so was to prevent or overcome the resistance;

·         The fear of violence must be either of a personal violence to the person robbed or to any member of his household or family in a restrictive sense;

·         The theft must have been in the presence of the person threatened.

These were the very ingredients that were spelt out by the Supreme Court in the case of FRIMPONG alias IBOMAN V. THE REPUBLIC. [2012] 1 SCGLR 297 per Holding 2.

17. We have reviewed the entire evidence on record and we find that all the ingredients were proved to the required standard of proof namely, beyond reasonable doubt. Therefore, the trial circuit judge did not err in convicting the appellant and his fellow conspirators. The appellate High Court Judge was also right in affirming the conviction of the appellant for conspiracy to commit robbery and robbery.

On the submission that the recollection of PW1 of the incident was blurred because of severe beatings, it is on record that PW1 stated as follows at page 7 of the ROA.

“they were holding cutlasses and gun. One attempted to fire the gun but same failed to fire. Because of the beating I could not identify who was holding what, they were able to take my Samsung Galaxy and the keys to the car. The A1 (appellant herein) took control of the steer and the 3 others joined him and they speed off in the car”

There is nothing blurred about this eye witness account. It cannot be doubted that when the appellant and his co-conspirators left PW1 after taking the car key, he saw them clearly hence he was able to identify A1 (Appellant) as the one who drove the car away. PW2 corroborated the evidence of PW1 to the effect that when A2 approached him at the counter and demanded money, the rest attacked PW1. Therefore, the errors of law numbered i, ii, iv and v complained of at the High Court and Ground [d] of the Grounds of appeal in the instant appeal have been comprehensively addressed in the Record of Appeal with none being breached.

18. The last alleged error of law by the trial judge was that he sentenced the appellant to 50 years IHL without considering any of the mitigating factors in passing sentence”. At page 55 of the ROA, this is what the trial judge wrote in his judgment.

 “In sentencing the accused persons, I took into consideration their ages and the high rate of robbery cases in the country which needs to be checked”.

As a function of rehearing the appellate High Court considered the sentence meted out to the appellant and corrected the error of law that was apparent in it. This is what the appellate High Court judge said at page 104-105 of the ROA.

“On the sentence, I think the judge got it wrong looking at Section 24(1) of Act 29/60. In Other words, since the act was indeed committed, the sentence in both counts one and two ought to have been the same. It was wrong to sentence the applicant to 30 years IHL on the conspiracy charge and 50 years IHL on the robbery charge. In the result, I will set aside the sentence passed on him on the robbery charge because I again think it is harsh for a person who is a first offender. In conclusion will maintain the sentence of 30 years IHL passed on the appellant for conspiracy to commit the offence of robbery and another sentence of 30 years IHL for the offence of robbery for the two sentences to run concurrently. I have averted my mind to the only factor which went into mitigation for appellant i.e. that he has no previous bad antecedent. I am however minded more by the aggravating factors in the incident, the degree of revulsion the right-thinking members of society have for this kind of offence and the prevalence of this offence in the Kumasi metropolis”.

Thus, as mitigating factors, the trial judge considered the age of the appellant and the Appellate High Court judge considered the fact that the appellant is a first offender. They were both however more swayed by the aggravating factor of the high prevalence of robbery in the Kumasi Metropolis and the country at large to pass a severe sentence to serve as a deterrent to like-minded miscreants. We completely agree with them. Grounds (b) and (d) of the grounds of appeal are accordingly dismissed.

GROUND [c]

The Court erred when it failed to consider the case of the defence/appellant.

19. Counsel for the appellant is contending that the appellate High Court judge failed to consider the defence of the appellant. Counsel submitted that throughout the trial, his client vehemently denied any complicity in the crime. He pointed out that in his evidence-in-chief, the appellant testified as follows:

“I live at Aboabo No. 2. I am a driver. I do now know the complainant and A2. I do not know A3 and A4. The master of A2 called Babangida called me on phone. When I went to see him he told me he was offering a car for sale and that I should find him a buyer. I met the A2, Babangida and Baba Musa at the customs office at Aboabo No. 2. I called one Alhaji ‘TJ’ but on arrival he said he was not interested in buying the car. I called later Agya Sei who asked his nephew to come and inspect the car. After inspection Agya Sei asked us to send the car to his house at Tech. which I did. …”

Counsel submitted that the trial judge failed to even minutely consider this defence and that a similar position was adopted by the appellate High Court judge. Referring to the case of REGINA VRS. ANSERE (1958) 3 WALR 385 Counsel submitted that it was stated in the said case that a court is not entitled to reject a defence simply because it does not believe it and that the court must consider, short of believing a defence, whether or not it may be reasonably true. Counsel submitted that if the story of the defence is found to be reasonably true, then the court was bound to give the benefit of the doubt to the appellant as was stated by Aninakwah JSC in the case of LOGAN & LAVERICK V THE REPUBLIC (2007-2008)1 SCGLR 76.

20. Counsel submitted that PW3, Detective Sergeant Samuel Marfo vigorously argued that the evidence the appellant gave in court was contradictory to that in his Cautioned Statement but retreated from tendering the Cautioned Statement in court after he had earlier indicated that they wish to tender same.

Counsel for the respondent submitted that from the judgment of the trial court, the trial judge obviously preferred the story of the prosecution witnesses to that of the appellant. She however conceded that although the trial judge disbelieved the stories of the appellant and his co-conspirators, he failed in his judgment to consider whether their stories were reasonably probable contrary to the Supreme Court decision in the case of AMARTEY V THE STATE [1964] GLR 256 per holding 1 to the effect that:

“(1) where a question boils down to oath against oath, especially in a criminal case, the trial judge should first consider the version of the prosecution, applying to it all the tests and principles governing credibility of witnesses; when satisfied that the prosecution's witnesses are worthy of belief, consideration should then be given to the credibility of the accused's story, and if the accused's case is disbelieved, the judge should consider whether, short of believing it, the accused's story is reasonably probable.”

21. Counsel for the respondent pointed out that the testimony of the appellant tallies with Exhibit 9, which is his Charge Statement. Counsel however pointed out several instances in the appellant’s testimony and Charge Statement which cumulatively, showed that the appellant was not being truthful to the court. These are that:

·         Babangida called him at 11:30pm on 4^th May 2011, the day that PW1 was robbed of the vehicle

·         He met Babangida, A2, A5 and A6 who are at large

·         The registration number of the vehicle had been removed at the time he met them.

Counsel drew the inference that from this testimony it was quite unusual for reasonable persons to do genuine car sale business at that time of the night. We agree with this inference because the transaction could have been after midnight since the time the appellant said he received the call was 11:30pm.

22. Other matters that whittled down the weight of the appellant’s testimony as pointed out by Counsel for the respondent are:

·         The Nissan Navara Pickup, valued at Gh⊄60,000.00 was driven to Accra and sold for only Gh⊄4,000.00 a day after the robbery

·         That the buyer before paying for the vehicle took the vehicle to a sprayer for the colour to be changed.

·         Those that the appellant met, A2, A5 and A6 are the same people that A2 mentioned in Exhibit F as being part of the robbery.

As a function of rehearing this case, we draw the inference that these incidents will necessarily raise the eye brows of any reasonable person on the street.

23. We have therefore come to the unavoidable conclusion that not only is the appellants story untrue, it is also not reasonably probable. Even though both the trial Circuit Judge and the appellate High Court judge failed to consider whether the story of the appellant was reasonably probable, we find that upon a thorough evaluation of the evidence on record the said judges were right in disbelieving the story of the appellant. Ground [c] is accordingly dismissed.

GROUND [e]

That the sentence of 30 years IHL on count one and 30 years IHL on count two was harsh and excessive

24. It is trite learning that sentencing is within the discretion of the trial court. One of the well-known case on this position is KWASHIE V THE REPUBLIC (1971) 1 GLR 488. There, the Court of Appeal held inter alia per Azu Crabbe J A (as he then was) that the determination of the length of sentence within the statutory maximum sentence is a matter within the discretion of the trial court and that the Courts always act upon the principle that the sentence imposed must bear some relation to the gravity of the offence. The Learned Justice went on to say that an offence which is of a very grave nature merits severe punishment. The Court laid down the factors which the trial judge is entitled to consider when determining the length of a sentence as follows:

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 offence was committed

25. Counsel for the appellant’s contention is that both sentences for conspiracy and the robbery were harsh and excessive having regard to the fact that the appellant was a first offender. Counsel contended that the reduction of the sentence for robbery from 50 years IHL to 30 years IHL by the appellate High Court was still not sufficient to remove the sentences from the ambit of harshness and excessiveness. Counsel opined that as evident from the trial and appellate High Court judgments, the judges placed more weight on the aggravating factors as opposed to the mitigating factors, contending that the reformation and rehabilitative aspects of sentences were also very important.

As rightly submitted by Counsel for the respondent, the Supreme Court in the case of FRIMPONG alias IBOMAN VRS. THE REPUBLIC cited supra said it was generally accepted that a first offender must normally be given a second chance or opportunity to reform and play his or her role in the society as a useful and law-abiding citizen but that the court also has to consider whether the first offender indeed acted as a first offender i.e. a novice. The Supreme Court stated categorically that if a first offender commits a serious crime like robbery which is a first degree felony, then it is to be presumed that the first offender himself had divested himself of any lenient consideration.

26. Considering the factors that a judge is entitled to consider in passing sentence, there is no doubt that in the instant case:

·         the offence of robbery continues to be a serious one;

·         right thinking members have a very high degree of revulsion against robbery, indeed we dare say an intolerable aversion towards robbery;

·         there are aggravating factors in the commission of the crime such as the beating that they subjected PW1 to and the cutlass wound that was inflicted on PW2.

27. Statute Law has also prescribed the minimum sentence for conviction for robbery, and this is stated in Section 149 of the Criminal Code, 1960 (Act 29) as amended by Act 646 of 2003. The said section provides in Subsection (1) that:

“1) Whoever commits robbery is guilty of an offence and shall be liable, upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years.”

The Section stipulates a minimum fifteen (15) years imprisonment for robbery with the use of offensive weapon or offensive missile but no upper limit has been prescribed.

28. The offence of robbery is a first degree felony. Section 296 (1) of the Criminal Procedure Act 1960 (Act 30) also provides that where a crime is declared by any enactment to be a first degree felony and the punishment for the crime is not specified, a person convicted thereof shall be liable to imprisonment for life or any lesser term. In other words, the maximum sentence for a first degree felony like robbery is life imprisonment. It can therefore be seen that the sentence passed by the appellate High Court judge is within the limits prescribed by law. Having regard to the factors enumerated in KWASHIE V THE REPUBLIC cited supra we find no good reason to disturb the sentence of the appellate High Court judge. Ground [e] of the grounds of appeal is thus dismissed.

COUNT 4: ASSAULT CONTRARY TO SECTION 84 OF ACT 29/60.

28. At page 2 of the Record of Appeal, there is a count 4 wherein A1 the appellant herein and A2, A3 and A4 were charged with assault on ISAAC ESHUN, PW2 contrary to Section 84 of Act 29/60. The said Section 84 stipulates that whoever unlawfully assaults any person is guilty of a misdemeanor. Section 85 defines the different kinds of assault which includes

a) Assault and battery

b) Assault without actual battery and

c) Imprisonment.

Under Section 86 (1) a person makes an assault and battery on another person, if without the other person’s consent and with the intension of causing harm, pain, or fear or annoyance to the other person, or of exciting him to anger, he forcibly touches the other person, or causes any person, animal or matter to forcibly touch him.

As a function of rehearing this matter, this court is duty bound to review all the evidence on record and come to its own conclusions on the matters raised in the case. As noted, Count 4 is a charge of assault on Isaac Eshun, PW2. There is nothing in the judgment of the trial Judge or that of the appellate High Court Judge concerning the said Count 4. Isaac Eshun PW2 testified that it was only A2 who attacked him and slashed his wrist with a cutlass. A1 the appellant is therefore acquitted and discharged on count 4.

30. Before we conclude this judgment, we call in aid Section 31 of the Courts Act 1993 (Act 459). Section 31 of Act 459 deals with Appeal in criminal matters allowed on substantial miscarriage of justice. Section 31(2) provides as follows:

“(2) The court shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted upon that charge or indictment”.

31. Though some points raised by Counsel for the appellant are valid, none can be said to have occasioned a substantial miscarriage of justice; hence the appeal is dismissed and the judgment of the appellate High Court Judge dated 30^th July 2015 affirmed.