ADJEI,J.A:

The Appellant herein was convicted by the Circuit Court Mpraeso on 28^th February,2014 on two counts of defrauding by false pretence contrary to section 131 of Act 29/1960 and issue of false cheque contrary to section 313 A of Act 29. The trial Circuit Court Judge sentenced the accused person to a term of fifteen years imprisonment in respect of defrauding by false pretence. Regarding the offence of issuing false cheque, the trial Circuit Court sentenced the accused person to a term of three years. The three sentences were to run concurrently.

The Appellant herein who was the accused person at the trial Circuit Court appealed against the sentence imposed on him by the said trial Circuit Court to the High Court, Koforidua. The High Court Koforidua heard the appeal against sentence and reduced the fifteen years sentence imposed on the Appellant on the two counts of defrauding by false pretences to eight years on each count and were to run concurrently. The High Court did not discuss the sentence on the issue of false cheque even though the ground of appeal against it was not abandoned. The High Court Judge in reducing the sentence for defrauding by false pretence advised the Appellant to pay the amount being the subject matter of the crime. The Appellant refunded the sum of GH26, 330.00 being the entire subject matter of the crime to the complainant. The receipt evidencing the refund of the money from the Appellant to the complainant is dated 12^th April, 2016. It was filed at the registry of this Court on 30^th June, 2016 and was made part of the record of appeal. It states thus:

“Received from Sosu Raphael, an inmate of Maximum Security Prison Ankaful, Cape Coast through his father, Nathaniel Sosu, the sum of Twenty Six Thousand, Three hundred and Thirty Ghana cedis (GH26,330.00) being a full refund of the amount collected from me by the prisoner under the pretext of buying me a Mercedes Benz Sprinter bus”.

The Appellant herein filed an appeal against the sentence imposed on him by the High Court after leave had been granted to the Appellant to file an appeal against sentence out of time by this Court. The three grounds of appeal filed by the Appellant are as follows:

“a. That the sentence of 8 years IHL on count 1 and 2 was rather harsh having regard to the fact that the accused person was a first offender and a young man who has learnt his lesson from the period of his incarceration.

b. That the Appellant has taken a cue from the advice of the High Court Judge and has therefore made a full refund of the amount of GH26,330.00 to the complainant and request His Lordships to reconsider his sentence.

c. That the Appellant is suffering from a serious illness and needs urgent medical attention”.

We address ground (c) of the appeal which is that the Appellant is suffering from a serious illness and needs urgent medical attention.

The law is that an appeal is by way of rehearing and the parties to the appeal are bound by the record of the appeal. Therefore, any information which is not part of the record of appeal cannot be admitted and discussed in the appeal. A person who seeks to introduce fresh evidence is permitted to do but must do so in accordance with law. A person who introduces any fresh or new evidence through his notice of appeal into a record of appeal shall be prevented from doing so as it will offend the long standing principle of law that an appeal is by way of rehearing and the parties are bound by the record of appeal. The fact that the Appellant is sick and needs an urgent medical attention may be a ground for bail pending an appeal but it cannot be accepted as a valid ground of appeal. The ground of the appeal is not borne out from the record of appeal and it therefore contains extranenous facts which the Courts are forbidden from using same. We shall therefore dismiss ground (c) of the appeal as containing facts not borne out by the record of appeal and it is hereby dismissed.

The ground (b) of the appeal is that the Appellant has refunded the entire amount which is the subject matter of the offence to the complainant. The fact that a person refunds an amount which is the subject matter of a crime does not suggest that the person is remorseful but it depends on the circumstances under which the refund was made. From the judgment of the High Court, the appellant was advised to refund the money to attract extreme leniency. The High Court in its judgment held thus:

“The offence for which the Appellant was sentenced to 15 years IHL is a second degree felony and the amount involved is GH26, 330.00. In my humble opinion, I think that it is a bit excessive. Whereas the appellant seems to be harping on the need to permit him join his family by granting him his freedom, he does not seem to be interested in restoring the complainant to his former state by repaying his money to him. This goes a long way to water down the intention of the Court in practicing extreme leniency on the Appellant. The failure to refund that money involved is no good sign of exhibition of remorsefulness on the part of the Appellant”.

Normally, appeal against sentence is granted by taking into consideration six mitigating and aggravating factors. The six grounds were summed up by this Court in the case of Kwashie v The Republic [1971] GLR 488 at 493 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.

The Supreme Court has quoted the above decision with approval in a host of cases including Kamil v The Republic [2011]1 SCGLR 300 and Frimpong alias Iboman v Republic [2012] SCGLR 297.

It must be noted that the above grounds are used by the Courts alongside the theories of punishment which are retribution, deterrence, prevention and rehabilitation. In the case in point, the Appellant refunded the money to the complainant and may qualify to have shown a good character and therefore does not deserve deterrent or any harsh sentence. Punitive sentence may either be in the form of retribution or deterrence or prevention depending on what the courts seek to achieve and any of the three sentences may be imposed taking into consideration the prevalence of that crime in the area, the seriousness of the offence, the circumstances under which the crime was committed and in particular the premeditation with which the crime was committed.

From the facts of the case in point, the trial Circuit Court Judge decided to impose a deterrent sentence on the Appellant taking into consideration the premeditation with which the crime was committed. Any form of sentencing being at the trial or on appeal is a matter of discretion but it must be exercised in accordance with law. When the trial High Court Judge advised the Appellant to refund the money to demonstrate that he was remorseful of his conduct, the Appellant complied with it and refunded the entire amount to the victim. We would at this stage conclude that the Appellant has now exhibited good character and we have to take it into consideration to impose appropriate sentence. The appellant has finally refunded the money he fraudulently obtained from the victim and we are satisfied that he did not benefit from his crime as a result of the refund made by him and we shall take it into consideration as a mitigating factor to impose an appropriate sentence. A reformative or rehabilitation sentence shall be the principle to apply at this stage as the court has decided to take a reformative approach to reform the Appellant with the aim of reforming the Appellant.

The power to impose appropriate sentence on a convict is within the discretion of the Court. This old age position of law was restated by the Supreme court in the case of Kamil v The Republic [2011[1 SCGLR 300 at 315. The Supreme Court speaking through Ansah JSC held thus:

“In fact, sentencing either after conviction in a trial of first instance or, on appeal is a matter entirely within the discretion of the Judge or the appellate Court”.

The power to impose appropriate sentence has always been within the discretion of the Court but must be exercised in accordance with law having regard to the four principles of sentencing. Appellate Courts with criminal jurisdiction are vested with powers to alter conviction, sentence or acquittal of a person and do what is right in accordance with the law depending on the facts of the case.

The order available to appellate courts have been codified under Section 30 of the Courts Act, 1993 (Act 459). It provides thus:

a. On an appeal from a conviction or acquittal

i. reverse the finding and sentence and acquit and discharge or convict the accused or order the accused to be retired by a court of competent jurisdiction, or commit the accused for trial; or

ii. after the finding, maintain the sentence or with or without altering the finding, reduce or increase the sentence, or

iii. with or without the reduction or increase, and with or without the finding alter the nature of the sentence; or

iv. annul the conviction and substitute a special finding to the effect that the accused was guilty of the act or omission charged but was criminally insane so as not to be responsible at the time when the act was done or the omission was made, and order the accuse to be confined as a criminally insane person in a mental hospital, prison or any other suitable place of safe custody; or

v. annul or vary an order of imprisonment or any other punishment imposed on the person convicted; or

vi. annul or vary an order for the payment of compensation, or of the expenses of the prosecution, or for the restoration of property to a person whether or not the conviction is quashed.

b. On an appeal from any other order, alter or reserve the order, and make an amendment or a consequential or an incidental order that may appear just and proper”.

In accordance with section 30 (a) (iii) the appellate Courts are seised with jurisdiction to reduce or increase sentence imposed on an accused person by the trial or a lower appellate court. The practice is that where an appeal is filed by an appellant against his sentence that the sentence is harsh or excessive as in the case in point, the Court may maintain or vary the sentence in accordance with law. However, where the Court decides to increase the sentence in an appeal filed by the appellant to pray for reduction of sentence, the appellant must be heard on the sentence before it may be enhanced. The law is that where the public does not complain of the inadequacy of the sentence nor the Court was wrong in imposing such a sentence an appellate court must not suo motu enhance the sentence without giving the appellant a hearing on it.

This above common law position has been discussed in cases including Odonkor v Republic [1967] GLR 690 and R v Adebesin[1940]6 WACA 197. The ratio from the above cases is that where a person appeals against his sentence and prays for a reduction of same and the Republic does not oppose it and the sentence is not wrong according to law an appellate court may dismiss the appeal but cannot suo motu enhance it without hearing the appellant on it. Such a decision by an appellate court offends the audi alterem partem rule on the grounds that the Appellant was not given the opportunity to show cause for the enhancement.

On the other hand, where the appeal is filed by the Republic to pray for increase in sentence, the accused person shall be given a hearing before a decision is given. Where a court decides to increase a sentence imposed on an accused person in an appeal filed by the accused person, the court must give the accused person a hearing before the sentence may be increased.

We address the sentence of five years imposed on the Appellant on a charge of issue of false cheque contrary to section 313 A of the Criminal Offences Act, Act 29 which the trial High Court failed to address. Section 313A (1) of Act 29 under which the appellant was convicted provides thus:

“313A. A person who

a. Without reasonable excuse, the proof of which lies on that person, issues cheque drawn on a bank with which that person, does not have an account, or

b. Issues a cheque in respect of an account with a bank when that person does not have a reasonable ground, the proof of which lies on that person, to believe that there are funds or adequate funds in the account to pay the amount specified on the cheque within the normal course of banking business, or

c. With intent to defraud, stops or countermands a cheque previously issued by that person.

Commits a criminal offence and is liable to a fine not exceeding two hundred and fifty penalty units or to a term of imprisonment; not exceeding twelve months or to both the fine and the imprisonment, and in the case of a subsequent criminal offence to a fine not exceeding one thousand penalty units or to a term of imprisonment not exceeding five years”.

The sanction which a court can impose on a convict for an offence of issue of false cheque is a fine not exceeding two hundred and fifty penalty units or to a term of imprisonment not exceeding twelve months or to both fine and imprisonment. In the case of a subsequent criminal offence, the courts may impose a fine not exceeding One Thousand penalty units or to a term of imprisonment not exceeding five years.

The Appellant was a first offender for the offence of issue of a false cheque and the appropriate sentence the trial Circuit Court Judge could have imposed is a fine not exceeding two hundred and fifty penalty units or to a term of imprisonment not exceeding twelve months or to both the fine and the imprisonment. With respect to the sentence the trial Circuit Court exceeded his jurisdiction which was erroneously affirmed by the High Court. A court has not got jurisdiction to impose a sentence which is higher than the maximum sentence prescribed by law. We hold that the five years sentence imposed on the appellant is illegal as it is in excess of the maximum sentence prescribed by law. We shall therefore set aside the five years sentence and substitute eight months as the appropriate sentence taking regard to the facts of the case.

The Appellant was sentence to fifteen years imprisonment on both counts of defrauding by false pretence contrary to section 131 of Act 29. The Police preferred a charge of defrauding by false pretence against the Appellant without specifying as to whether he was charged under Section 131 (1) of Act 29 or 131 (2) of Act 29. The two counts of defrauding by false pretence are as follows:

“COUNT ONE

STATEMENT OF OFFENCE

DEFRAUDING BY FALSE PRETENCES: SECTION 131 OF ACT 29/60 PARTICULARS OF OFFENCE SOSU RAPHAEL, UNEMPLOYED: For that you in January,2012 at Mepe in the Volta Region with intent to defraud did obtain the consent of one John Kato to part with cash the sum of GH26,000.00 under certain false pretences to wit, by falsely pretending that if the said amount is given to you, you could secure for him a sprinter bus to buy and upon such false representation you succeeded in obtaining the said amount from the said John Kato which statement you well knew at the time of making it to be false.

Count 2

SATEMENT OF OFFENCE

DEFRAUDING BY FALSE PRETENCE: SECTION 131 OF ACT 29/60

SOSU RAPHAEL, UNEMPLOYED: For that you on 6^th day of November,2013 at Nkawkaw in the Eastern Circuit and within the jurisdiction of this Court, with intent to defraud did obtain the consent of one John Kato to part with cash the sum of GH330,00.00 under certain false pretences to wit, by falsely pretending that if the said amount is given to you, you could perform rituals and cleanse an unspecified amount you allegedly amassed spiritually and pay back to the said John Kato cash of GH 26,000.00 which you previously took from him under the pretext of assisting him to buy a sprinter vehicle but failed to do so, a representation you knew to be false at the time of making it”

The Act 29 originally created defrauding by false pretence contrary to section 131 of Act 29 and the section provided that a person who defrauds any person by false pretence shall commit a second degree felony. Section 131 of Act 29 was subsequently amended by Section 5 of the Criminal code (Amendment) Decree, 1969 (N.L.C.D 389). The amending or the new decree created two types of defrauding by false under section 131 and has since remained the position of the law. Section 5 of N.L.C.D 398 was subsequently amended by Sections 1 and 2 of the Criminal Code (Amendment) (No.2) Decree, 1972 (N.R.C.D 53). The two offences of defrauding by false pretence under Section 131 (1) and (2) of Act 29 provides thus:

“131.(1)A person who defrauds any other person by a false pretence commits a second degree felony.

(2) A person who by means of a false pretence or by personation obtains or attempts to obtain the consent of another person to part with or transfer the ownership of a thing by a false representation of acting in accordance with the instructions, orders or a request of the President or member of the Cabinet, commits a second degree felony under subsection(1) and is liable to a term of imprisonment of not less than ten years and not more than twenty-five years despite section 296 of the Criminal and Other Offences (Procedure) Act,1960 (Act 30)”

The two forms of defrauding by false pretence are not the same and therefore whenever a person is charged under section 131 it must be stated as to whether the person is charged under section 131 (1) or (2) of Act 29 as the ingredients are not the same. In the case of Section 131 (2) of Act 29, the minimum sentence a court may impose is ten years while it is not so for a person charged under section 131(1) of Act 29. From the records, the Appellant should have been charged under section 131 of Act 29 which a minimum sentence has not been prescribed by the Act. The failure to specify the particular provision under Section 131 on which the Appellant was charged is just a mere defect in the charge sheet and does not go to the root of the matter. In criminal law appeals that consist of a mere technicality or procedural error or a defect in the charge sheet or indictment does not affect the validity of the conviction or otherwise unless there is an evidence to show that it has occasioned a substantial miscarriage of justice. Section 31 (2) of the Courts Act, Act 459 provides for grounds upon which an appeal based on mere technicality or procedural defect should be dismissed. It provides thus:

“(2) The appellate court shall dismiss the appeal if it considers that a substantial miscarriage of justice has not actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the statement of offence in the charge or indictment or any other offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted on that charge or indictment”.

We are satisfied that there is evidence on record to support the offence of defrauding by false pretence contrary to section 131(1) of Act 29 and the amendment made by this Court to correct the defect in the charge consist of a technicality or a procedural error which has not occasioned substantial miscarriage of justice.

The maximum sentence of the two offences under section 131(1) and (2) of Act 29 is twenty-five years imprisonment by virtue of section 296 of the Criminal and other Offences (Procedure Act,1960 (Act 30) even though section 131 of a second degree felony.

We are satisfied that if the trial Circuit Court Judge and the High Court Judge had averted their minds to section 131 (1) of Act 29 vis-a -vis the evidence on record and the fact that the Appellant was a first offender they would not have imposed such harsh sentence on the Appellant. We have also taken into consideration the fact that the Appellant has also refunded the sum of GH26, 330.00 to the complainant and we are of the considered opinion that we should set aside the sentence of eight years imposed on the Appellant and substitute a term of imprisonment which will seek to reform the Appellant. We hereby set aside the sentence of eight years on both counts of defrauding by false pretences under section 131 (1) of Act 29 and substitute a sentence of 3 years six months for both and are to run concurrently from the date of his conviction by the trial Circuit Court Judge that is 28^th February,2014.

The appeal on sentence succeeds in part. The Appellant is sentenced to 8 months in respect of count 3 and three and half years for both counts 1 and 2 and all the sentences are to run concurrently from the date of his conviction by the Circuit Court that is 28^th February, 2014.

(SGD.)

DENNIS ADJEI

JUSTICE OF APPEAL

(SGD.)

SOWAH, J.A                   I agree                         CECILIA SOWAH

JUSTICE OF APPEAL

(SGD.)

MENSAH, J.A                            I also agree                      L.L.MENSAH

JUSTICE OF APPEAL