IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KOFORIDUA - A.D 2017
YAW SEKYERE- (Applicant/Appellant)
THE REPUBLIC - (Respondent/Respondent)
DATE: 8TH FEBRUARY 2017
SUIT NO: H2/20/2016 2
JUDGES: ADJEI J.A. (PRESIDING), SOWAH J.A., KOGYAKWA J.
LAWYERS: CYRIL TEFREKU BOATENG FOR THE RESPONDENT IN BOTH CASES APPELLANTS IN PERSON
The Appellants herein were convicted by the High Court Sunyani on 17th May, 2006 for robbery contrary to section 149 of Act 29 as amended by the Criminal Code (Amendment), Act 2003(Act 646). The Appellants herein and the other accused persons were convicted and sentenced to thirty years imprisonment for the offence of robbery. There are two different appeals filed by the convicts who are Appellants before this Court. The two appeals before us namely Salifu Mohammed v The Republic with Suit No.H2/201/2016 and Yaw Sekyere v The Republic, Suit no. H2/06/2017 emanate from the same criminal trial captioned: The Republic v Yaw Sekyere and 2 Others with suit No F2/9/06. The suit was filed before the High Court, Sunyani. The two appeals are from one criminal trial and we hereby consolidate them in the interest of justice. The convicts were three namely; Yaw Sekyere who is the Appellant in Suit No. H2/06/2017; Nana Akwasi Boadu who has not filed an appeal against the decision of the trial High Court and Salifu Mohammed whose appeal is before this Court as Suit No. H2/20/2016. Even though the accused persons therein were tried and convicted by the High Court Sunyani and ordinarily their appeals should have been heard by the Court of Appeal, Kumasi, this Court has assumed jurisdiction over the matter as both appellants and the 2nd accused person who did not appeal are serving their terms of sentence in Nsawam, Koforidua and Nsawam respectively which are within the jurisdiction of this Court. The practice in criminal appeal is that an appeal may be heard in the proper appellate court within whose jurisdiction the matter was heard or in the Court whose jurisdiction the accused persons are serving their sentences. Even though there is one Court of Appeal with different divisions in some of the regions in the country, the practice is that it is the division of the Court of Appeal in whose jurisdiction the matter was heard or where the accused persons are serving their sentences where an appeal to the Court of Appeal is heard. Article 136(4) of the Constitution of Ghana empowers the Chief Justice to create such divisions of the Court of Appeal as he considers fit and in pursuance to that has established the Court of Appeal in Kumasi, Cape Coast, Tamale, Koforidua and Ho. Though divisions, they are one Court of Appeal and it is their geographical division which vary. The practice is to avoid forum shopping and also to prevent the abuse of the process of the Court. At a point in time it became a notorious fact that where a person filed his appeal in one of the divisions of the Court and it was dismissed, the same person would file a similar appeal in another division of the Court to try his luck which was contrary to public policy and amounted to an abuse of the process of the Court. Despite the practice by the Court to avoid the abuse of its process, the powers of the Chief Justice under section 104 of the Courts Act, Act 459 to transfer a case from on court to the other remains unfettered.
In the consolidated appeal before this Court, the Appellants have only appealed against the sentence of thirty years imprisonment imposed on them. They have described the sentence as harsh and excessive.
An appellate Court under Section 30 of the Courts Act has a discretion to vary a sentence imposed by a trial Court on an appellant but the discretion shall be exercised in accordance with law. The orders available to Superior Courts over criminal appeals before them including both conviction and sentence are regulated by Section 30 of the Courts Act, Act 459. It provides thus:
“Subject to this Act, an Appellate court may in a criminal case
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. Alter the finding, maintaining 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 altering 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 accused 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 if 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”.
The Appellants in both appeals are appealing for reduction of sentence from 30 years IHL imposed on them by the trial High Court to a lesser term. The main ground of appeal filed in each of the appeals before this Court is that the sentence is harsh and excessive. In the case of Yaw Sekyere v The Republic Suit No. H2/06/2017, the Appellant filed three additional grounds of appeal and they are:
“1. The Appellant sincerely regrets his action and it is out of deep remorse that he is pleading for mitigation of sentence.
2 The Appellant is a first offender who has spent over ten years imprisonment and has learnt his leson over the period he has served in prison, hence his plea foe mitigation of sentence.
3. The Appellant vows to keep away from all kinds of crime in the future”.
In the case of Salifu Mohammed v The Republic with Suit no. H2/20/2016, the Appellant has also filed four grounds of appeal. They are as follows:
“1. The Appellant sincerely regrets his action and it is out of deep remorse that he is praying for mitigation of sentence.
2. The Appellant is a first offender who has learnt his lesson over the period he has served in prison, hence his plea of reduction of sentence.
3. The Appellant has a wife and three children of school going age, but the said wife died couple of years ago and left the children in destitution. Also, the Appellant’s mother who is supposed to take care of the children is now in her age of dependency.
4. The Appellant vows to keep away from all sorts of crime in the future”.
Apart from the ground of appeal which is that the sentence is harsh and excessive, all the other grounds cannot be verified from the record of appeal. Appeal is by way of rehearing and all grounds of appeal shall be borne out from the record of appeal. In deciding as to whether to affirm or vary a sentence imposed on an accused person, the appellate Court is bound by the records and cannot go outside the record of appeal to consider other mitigating factors. Where there is an appeal against sentence, the mitigating and aggravating factors are normally expected to be the same aggravating and mitigating factors that were considered by the trial court except where fresh evidence is adduced on appeal in accordance with law to introduce mitigating and aggravating factors. The trial courts have the opportunity to conduct pre-sentencing hearing whenever they think fit to guide them to give appropriate sentence. Section 177 (2) of the Criminal and Other Offences Procedure Act, 1960 (Act 30) which is on presentencing hearing in summary trials provides thus:
“The court may receive evidence to inform itself as to the sentence proper to be passed and in the event of the court convicting or making an order against the accused in respect of which an appeal lies, the Court shall inform the accused of the right to appeal at the time of entering the conviction or making the order”.
In the case of indictable offences, Section 293 of Act 30 provides for the sentencing hearing. It provides thus:
“The court may before passing sentence, receive evidence it considers fit, in order to inform itself as to the sentence proper to be passed”.
The Courts in their efforts to do justice take evidence they consider fit to inform themselves to pass appropriate sentences on convicts after conviction.
We are of the considered opinion that all the grounds of appeal raised by the Appellants in their additional grounds of appeal are not borne out by the evidence on record particularly, the record on pre sentencing hearing and this Court cannot consider same. Any matter which is introduced at the presentencing hearing may be verified by the trial Court but if they are allowed to be raised for the first time on appeal, the appellate court will be allowing the admission of extraneous information which do not come through the adduction of fresh evidence rule on appeal. We shall therefore resist all attempts by the appellants to persuade us to receive extraneous matters which are not borne out by the record of appeal as mitigating factors as they cannot be verified by this Court.
All the mitigating factors contained in the additional grounds are either evidence of good conduct or study industry or both which the Prisons Administration takes into consideration in assessing remission of sentence. Mitigating factors which are either evidence of good conduct or study industry are for the consumption of Prisons Administration when deciding on remission on sentence and not meant for appellate court as the Courts are not in the position to verify the veracity of same. The grounds of appeal by the Appellant to the effect that they have learnt lessons from the Prisons and have reformed and furthermore, they have learnt trade or vacation in Prisons are post conviction acts which are not borne out by the record of appeal and cannot be taken as mitigating factors on appeal.
The only proper ground of appeal before this court is the fact that the sentence is harsh and excessive. Though the circumstances under which the Appellants committed the offence was premeditated, they did not succeed in taking away money from Agricultural Development Bank at Kwapong. They did not also cause any harm to anyone apart from the beastly attack meted out to the watchman by them at the Bank who testified as PW1. The law generally is that a Court is duty bound to take certain factors into consideration when imposing appropriate sentence and it includes the upsurge of the offence in the country, the modus operandi of the accused and other mitigating and aggravating factors. In the case of Kwashie v The Republic  1 GLR 488, the Courts were tasked to consider mitigating and aggravating factors when imposing appropriate sentence. A Court may impose deterrent, preventive or retributive sentence on a convict but must not take into consideration only aggravating factors unless there are no mitigating factors on record to ameliorate the punitive sentence to be imposed. On the other hand, a Judge seeking to reform a convict must not only consider mitigating factors but must consider aggravating factors as well before an appropriate sentence may be imposed.
The trial High Court Judge only considered aggravating factors without taking into consideration the fact that no money was taken and injury was not caused anyone during the robbery expedition. We are of the considered opinion that the trial Judge’s sentence was harsh even though it falls within his jurisdiction. Robbery is a first degree felony and the maximum sentence a Court may impose is life sentence. Section 296(1) of the Criminal and Other Offences Act, Act 30 provides the maximum sentence a court may impose on a person convicted for a first degree felony. It provides thus:
“1. Where a criminal offence is declared by an enactment to be a first degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to imprisonment for life or any lesser term”.
The maximum sentence a court may impose in robbery cases is life imprisonment. Act 646 categorises robbery into two categories and further prescribes a minimum sentence for them.
“The Criminal Code (Amendment) Act 2003 which was assented to by the President of Ghana on 3rd
July, 2013 provides thus:
“BE IT ENACTED by Parliament as follows:
Section 149 of Act 29 amended. The Criminal Code (Act 29) as amended is further amended by the substitution for section 149 of the following:
149(i) Whoever commits robbery is guilty of an offence and be liable, upon conviction on trial summarily, or on indictment, to imprisonment for a term of not less than ten years, and where the offences 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.
2. For the purposes of subsection
i. the Attorney-General shall in all cases whether the offence shall be tried, summarily or on indictment.
3. In this Section ‘offensive weapon’ means any article made or adopted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use it to cause injury or damage; and ‘offensive missile’ includes a stone, brick or any article or thing likely to cause harm, damage or injury if thrown”.
The first category of robbery is where no offensive weapon or offensive missile was used and the second category is where offensive weapon was used. In a case where an offensive weapon or offensive missile is used, the minimum sentence a court may impose on a convict is fifteen years and where no offensive weapon or missile is used the minimum sentence is ten years. We are satisfied that if the trial High Court Judge had taken into consideration the mitigating factors mentioned above, he would not have imposed a sentence of thirty years on the Appellants’.
Furthermore, a Court which convicts a person for an offence other than an offence punishable by death is mandated to comply with Article 14 (6) of the Constitution of Ghana. It provides thus:
“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”.
A Court is mandatorily required to take into account any period a person spends in lawful custody before the completion of the trial of that person with respect to that offence and the Court must either expressly or by necessary implication states so. We are satisfied that the Appellants were in custody for nine months before the completion of the trial in respect of the offence of robbery but the High Court Judge failed to take same into account. We are obliged to consider the constitutional provision under article 14(6) of the Constitution in our judgment as we are satisfied that the trial High Court Judge did not take the nine months they spent in lawful custody with respect to that offence into account.
The failure by the trial High Court Judge to take into account article 14(6) of the Constitution cannot be said to be trivial. The sentence imposed on the Appellants were twice the minimum sentence and it is ample demonstration that the trial High Court Judge did not consider article 14(6) of the Constitution either expressly or by necessary implication. In the case of Bosso v The Republic  SCGLR 420, the Supreme Court held that article 14(6) of the Constitution of Ghana is a constitutional provision and the Courts have to take it into accounts in imposing appropriate sentence and may be express or implied depending on the nature of the sentence. In a case where the minimum sentence prescribed by law is imposed on the accused person but no reference is made to article 14 (6) of the Constitution, it will be presumed that the court impliedly took it into account.
Where the sentence is harsh and there is evidence that the Judge took into account article 14(6) of the Constitution, the Judge cannot be faulted, to have ignored it. However, where the court expressly does not state that it has taken article 14(6) of the Constitution into account and the minimum sentence prescribed by law is imposed, the Court is presumed to have impliedly taken into account article 14(6) of the Constitution. In all other case, article 14(6) of the Constitution shall be expressly stated. Where there is evidence that the accused person spent some time in lawful custody being police or prisons custody before the completion of his trial in respect of that offence and whether he was subsequently granted bail or not or could not satisfy the bail condition and remained in custody must be expressly taken into account except where the minimum sentence is imposed. There is no prescribed method to indicate that article 14(6) of the Constitution has been complied with but there should be evidence that it has either been expressly or impliedly complied with based on the words used or the term of imprisonment imposed on the convict.
We have considered the sentence imposed on the Appellants as harsh and we are required by the Constitution to take into account the fact that the Appellants spent nine months on remand in respect of the offence before the completion of their trial.
The other accused person did not appeal against his sentence but this Court as a Court of law cannot deal leniently with the Appellants and leave him unattended to as the facts and the circumstances surrounding the offence are the same. The appeal succeeds in part on mitigation of sentence and the accused person who was not heard may benefit from the appeal filed by the other Appellants. If it were for enhancement of sentence, we would have invited the accused who did not appeal to show cause why his sentence should not be enhanced as any decision taken will be to his disadvantage and not be given a hearing.
We hereby set aside the sentence of thirty years imposed on the accused persons as harsh and substitute a term of twenty years from 17th May, 2006 when they were convicted by the trial high Court .
JUSTICE OF APPEL
SOWAH,J.A I agree CECILIA SOWAH
JUSTICE OF APPEAL
KOGYAKWA,J I also agree RICHARD M. KOGYAKWA
JUSTICE OF THE HIGH COURT