JUDGMENT

The two appellants herein were arraigned before the Kumasi Circuit Court where they were convicted on their own guilty plea and sentenced to seven (7) years imprisonment with hard labour on the following charges:

COUNT 1

STATEMENT OF OFFENCE

Conspiracy to commit crime; contrary to section 23(1) of Act 29/60

PARTICULARS OF OFFENCE

1. NASHIRU BABA a.k.a. COBBEE, NIGHT WATCHMAN, AGED 34 YEARS, 2. BARNABAS KUUKALOR, NIGHT WATCHMAN, AGED 23; for that you, on the 5^th day of September, 2013, at 2:00am, at Nyhiaeso, Kumasi, in the Ashanti Region and within the jurisdiction of this court, did agree to act together with common purpose to commit crime to wit; stealing.

COUNT TWO

STATEMENT OF OFFENCE

STEALING: contrary to section 12491) of Act 29/60.

PARTICULARS OF OFFENCE

1. NASHIRU BABA a.k.a. COBBEE, NIGHT WATCHMAN, AGED 34 YEARS, 2. BARNABAS KUUKALOR, NIGHT WATCHMAN, AGED 23; For that you , on same day, time and place as aforementioned in the Ashanti Region and within the jurisdiction of this court , did steal 30 crates of canned soft drinks valued at GH¢ 960.00; 10 crates of fox beer valued at GH¢ 550.00; 20 boxes of energy drinks valued at GH¢ 2,400.00; two gas cylinders valued at GH¢ 700.00 and six emptied rubber containers valued GH¢ 30.00; all valued at GH¢ 4, 640.00 the property of one Phyllis Ofori.

The sole ground of appeal contained in the petition is that "The seven years sentence imposed on first offenders were harsh."

When the case came up on 02/11/2015, the court observed that a hearing notice had been served on the Attorney General's Department, Kumasi but without the record of proceedings. Thus, on 09/11/2015, an Assistant State Attorney who had personal conduct of the case was given a copy of the record of proceedings in open court, since their copy for service was still on the docket. The case was subsequently adjourned to 17/11/2015, but when the case was called on that day, the said Assistant State Attorney was absent without reason. Therefore, the court proceeded to hear the submissions of counsel for the appellants.

In condemning the sentence, counsel for the appellants said his clients who were convicted on 09/09/13 are first offenders. Counsel prayed the court to exercise its discretion by reducing the sentences imposed on them as first offenders. He urged the court to consider the fact that the Appellants have regretted their actions and have been of good conduct in the prisons.

The punishment for the offence of stealing under section 124 of the Criminal and Other offences Act, 1960, Act 29 is a term of imprisonment not exceeding 25 years.( See section 296(5) of the Criminal and Other offences procedure Act, 1960, Act 30). A trial judge has a discretion in passing sentence depending on the gravity of a particular offence, and the existence or non-existence of any mitigating factors. Second, the court in passing sentence must consider the purpose which it intends to achieve. Thus, in Frimpong alias Iboman v The Republic,(2012) SCGLR 297, the Supreme Court affirmed the principles for imposing sentences upon a convicted persons as follows (holding 8):

The supreme Court would affirm 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 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; (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 crime was committed. And, where the court found an offence to be grave, it must not only impose a punitive sentence, but also a deterrent or exemplary one so as to indicate the disapproval of society of that offence. Kwashie v The Republic ( 1971) 1 GLR 488 at 493; Kamil v The Republic (2011) SCGLR 300 cited.

From the brief facts of this case, the appellants were employed as night watchmen at the Complainant's Restaurant and Pub, but turned round to steal the items particularized above which had been placed under their watch. As security men who were in a position of trust, these appellants ought to have known better. Was it a crime of necessity? I would not say so because if that were the case, they would have been moderate in the quantity of items stolen. From the position held by these appellants, it is obvious that the crime was pre-meditated.

Generally, first offenders are to be treated differently. And, the Supreme Court in Frimpong alias Iboman v The Republic, referred to supra, observed in holding (7) thus:

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-avis as second or 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 given circumstance was the offence creating statute and the punishment provided therein...

Even though there is no record indicating that the appellants are second, or habitual offenders, the swift and skillful manner in which the crime was committed shows that they have some experience in such acts. Now, these men have regretted their actions, have turned over a new leaf, and want the court's intervention.

As the Supreme Court held in the Frimpong alias Iboman case, supra, once the court has decided to impose a deterrent sentence, the good record of the accused would be irrelevant and that an appellant who complains of the harshness of a sentence ought to appreciate that each 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 circumstances of this case, even though the record indicates that the trial judge passed a deterrent sentence, i think the seven year term amounted to an improper exercise of his discretion. The sentence is manifestly harsh and deserves the intervention of the appellate court.

I will allow the appeal against the Sentence. The sentence of seven years imprisonment with hard labour on each count is reduced to 27 months imprisonment with hard labour on each count to run concurrently.