AYEBI, JA

On 4^th March 2004, the appellant was indicted before the High Court, Kumasi on charge of causing harm by the use of offensive weapon contrary to section 70 of Act 29 of 1960. The particulars state that on 20^th day of May 2002 at Akropong in the Ashanti Region, the appellant did cause harm to Victoria Adjinku by pouring a highly corrosive liquid on her head.

The appellant pleaded not guilty to the charge. At the trial, the prosecution called seven witnesses including the victim Victoria Adjinku. The appellant gave evidence but called no witness. The trial judge then summed up the evidence and the applicable law to the jury. By a majority of 6 to 1, the jury returned a verdict of guilty of the charge against the appellant. On 19^th August 2004, the trial judge convicted the appellant and sentenced him to 25 years imprisonment with hard labour.

Pursuant to the leave of this court granted in December 2011, the appellant launched this appeal against both conviction and sentence. The grounds are that:

(i) The sentence is too harsh and excessive.

(ii) The verdict cannot be supported by the law.

(iii) The sentence be drastically reduced or in the alternative a fine be imposed.

The appellant however in his written submission abandoned ground (ii) of the petition of appeal. The effect is that the appellant accepts that his conviction is supported by the evidence adduced by the prosecution against him. In other words, the prosecution had proved the charge of causing harm by the use of offensive weapon beyond reasonable doubt against him. The ground (ii) of the appeal is therefore dismissed. The complaint of the appellant in this appeal now is that the sentence of 25 years IHL is excessive and pleads for reduction.

The law is that sentencing is a matter entirely within the discretion of the trial judge especially where the minimum and the maximum sentence for an offence is not fixed by statute. Another principle of law which the court or judge takes into consideration in sentencing is that while the sentence must be commensurate with the gravity of the crime and revulsion which law-abiding citizens felt towards the crime committed, mitigating and aggravating circumstances must be considered in determining the length of the sentence.

Therefore in order to determine whether or not the trial judge is justified in imposing the sentence of 25 years IHL or the sentence is commensurate with the gravity of the crime committed, it is instructive to narrate the facts of this case in some detail, highlighting the modus operandi of the appellant and the injuries sustained by the victim.

The facts are that the complainant (victim) and the appellant live in separate parts of Akropong Essase in Kumasi. They were in amorous relationship which became strained after about one year. On 20^th May, 2002, the appellant went to the house of the complainant to invite her to his house for a discussion but did not meet her. Appellant left the message with the mother of the complainant. So when the complainant returned home at about 6.30pm, the mother passed on the message of the appellant to her. At about 8.00pm, complainant arrived in the appellant’s house. She knocked on appellant’s door and entered his room. As soon as the complainant entered the room, the appellant locked the door and removed the key. When the complainant asked why he locked the door, appellant demanded to have sex with her. The complainant refused. A struggle ensued between them. According to the complainant, the struggle continued until 1.00am when they all became very tired. The appellant then told the complainant that because it was late for her to go home, she should sleep on his bed and to assure her that he will no more attempt to have sex with her, he will sleep on the floor. The complainant accepted the suggestion in good faith and because she was worn out by the struggle, she fell asleep almost immediately.

But in her sleep, she felt a sharp pain and when she touched her head, she realized that some liquid with a burning sensation was flowing over her body. She also saw the appellant lying on the other side of the bed rather than on the floor. From her head, she was feeling the pain all over her body and so she forced the door opened in order to go under the shower to reduce the pain. But the pain became worse and so she decided to go to the Akropong Hospital. While following her, appellant told her that she had been shot by a bad spirit. At the hospital, the nurse on duty gave her an injection to reduce the pain and suggested she should be taken to the S.D.A. Hospital.

Appellant then left for home to bring money but he came back with nothing. Eventually, it was her mother who sent a vehicle but she was taken to the house of a pastor at Tanoso Apatrapa. The pastor poured olive oil on her and the pain reduced sufficiently. Around day break she saw that her skin had become dark, was peeling off and puss coming from her head. She also realized that her underskirt was torn into pieces. And although the pastor also advised that she should be taken to the hospital, the appellant took her home (hers).

Again, although her mother also told the appellant to send her to the hospital, he left. It was the third day that she was sent to the hospital. The complainant said her brothers assisted and she was operated upon at the S.D.A. Hospital. She was referred to the Komfo Anokye Teaching Hospital where she had good treatment. One Dr. Agbornoku said it was acid which was poured on her and suggested that she required plastic surgery. But her family was unable to raise the money. So she was just given drugs. As at now there are scars on her head and parts of her body.

On 28^th June 2002, the medical officer who examined the complainant at Komfo Anokye Teaching Hospital wrote, “patient had contracted scars and keloid scars and ulcerated sores resulting from burns on the scalp, neck, shoulders and upper trunk”. The picture of the complainant in Exhibits G, G1 and G2 amply support this finding by the medical officer. Appellant himself gave evidence that the pillow and the bedsheet on the bed on which the complainant lay at the time were torn into shreds by the liquid. And because the bedsheet in particular had become unusable and unwashable, he threw it away. It stands to reason that the finding that the liquid or substance poured on the complainant was acidic must be very concentrated. The appellant having conceded that he was properly convicted, the reasonable inference from his conduct is that, the invitation of the complainant to his house for a discussion was part of his premeditated plan to cause bodily harm to the complainant.

From the evidence on the record, the case was tried by a jury and a judge. It is provided in s.277 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30) that when in a jury trial, the case on both sides is closed, the judge shall, if necessary, sum up the law and evidence in the case. In plain language, the wording of the section appeared to give the judge the discretion to sum up the law and evidence in the case at the close of the case on both sides. But the Supreme Court in its Practice Direction in State vrs Kwame Amoh 19610 2 GLR 637, held that the trial judge has the duty to give directions to the jury despite the wording of Act 30, s.277. That being so, summing up of the law and the evidence at the end or the close of the case of both sides is a mandatory duty cast on the trial judge – see Asare vrs The Republic [1978] 1 GLR 193 and Berko vrs Republic [1982/83] GLR 23, C.A.

There is however no evidence of the summing up notes on the record.  But it is recorded that the following took place on Thursday, 19^th August, 2001 in court in the presence of the appellant and counsel for both sides:

By Court:         To foreman of the jury

Q. Have you considered your verdict?

A. Yes.

Q. What is your verdict?

A It is 6 – 1.

What followed this interaction between the court and the jury was conviction of the appellant by the court, plea for mitigation by the appellant and then pronouncement of sentence.

By procedure, the jury can only retire to consider its verdict after the summing up had ended. The interaction between the court and the jury suggests that there was a summing up after which the jury retired to consider the verdict and then returned. However, the summing up notes is not on the record. What that meant is that the record of appeal is not complete. And yet neither counsel nor appellant complained about it. Perhaps the absence of the summing up notes was the reason why counsel for the appellant abandoned ground (ii) of the appeal.

These days it is becoming the norm for trial registries to transmit incomplete record of appeals to this court. When the record of appeal is remitted to them for rectification or re-compilation, various reasons are given for their inability to do so. The practice whether deliberate or out of inadvertence should not be condoned by counsel especially appellant’s counsel. This is because the consideration of an incomplete record of appeal as the only available record of appeal can lead to miscarriage of justice when the appellant’s appeal is dismissed.

I am however satisfied that the complaint(s) against the sentence of 25 years IHL imposed upon the appellant can justifiably be determined even in the absence of the summing up notes, and appellant will so suffer no miscarriage of justice thereby. As I noted earlier, the relief the appellant seeks is reduction or mitigation of the sentence or in the alternative, the imposition of a fine. The major complaint of the appellant against the sentence is that the trial judge grievously erred when he failed, refused or neglected to take into consideration Article 14(6) of the 1992 Constitution before he imposed the sentence on the appellant. The error it is argued amounted to a failure to protect the appellant’s fundamental human rights as enshrined in the Constitution. Article 14(6) in Chapter Five of the 1992 Constitution provides that:

“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”.

In view of this constitutional provision, it is submitted for the appellant that although he was granted bail by the trial judge, he remained in custody throughout the trial. From the record, he was incarcerated first on 24^th May, 2002 and remained so until 19^th August 2003 when he was convicted and sentenced. In all therefore, he had spent 2 years 3 months in lawful custody. This number of years spent in lawful custody was overlooked by the trial judge when he imposed the 25 years IHL.

I have noticed that the State represented by the Attorney-General Department has not filed any response to the written submission of the appellant. It means that the State is not contesting the appeal on the alleged grounds. The submission that the appellant spent over two years in lawful custody before he was sentenced is supported by the record. And in pleading for mitigation before sentence, counsel for the appellant brought it to the attention of the trial judge amongst others that, the appellant had all along been in custody because he could not meet the bail conditions.

But the trial judge only stated that he had taken note of all that which had been said. He said he was of the opinion that the appellant deserved a strict punishment. He then passed the sentence. With that short statement by the trial judge, could it be said that he indeed took into consideration the number of years the appellant spent in custody before the completion of the case when he imposed the sentence of 25 years IHL?

In Ojo vrs The Republic [1999/2000] GLR 169, the Court of Appeal considered the applicability of Article 14(6) of the Constitution alongside section 315(3) of the Criminal and other Offences (Procedure) Act, 1960 (Act 30). The court in holding 2 said:

“Although Article 14(6) of the Constitution, 1992 enjoined a court before sentencing a convicted person to take into account any period he had spent in lawful custody, since by the provision of s.315(3) of the Criminal Procedure Code, 1960 (Act 30), a sentence of imprisonment should start from the date it was pronounced, a court was not entitled to backdate a sentence. Accordingly, under the law, the judge had to take the period spent in lawful custody into account before imposing the sentence. Thus when a court imposed a term of imprisonment, it should be presumed to have imposed it in the light of Article 14(6) of the Constitution, 1992”.

But Brobbey JA (as he then was) would prefer that the fact that the court took into consideration s.14(6) of the Constitution in arriving at the length of sentence should be expressed on the record rather than be presumed. At page 179, he said albeit obiter that:

“As a general guide, however, trial courts will be well advised to state expressly in the record of proceedings when they take a period of prior incarceration into account in imposing terms of imprisonment. This should be incorporated in the record and read out or announced before the precise period to be served in prison has been announced publicly by the trial judge”.

The obiter statement by Brobbey JA (as he then was) in Ojo case was meant to be a guide to trial courts as evidence of applicability of Article 14(6) on the record. In Bosso vrs The Republic [2009] SCGLR 420, the Supreme Court per Her Ladyship the Chief Justice explicitly stated that it should be revealed from the record that the trial judge indeed took into consideration Article 14(6) of the Constitution in imposing the term of imprisonment. She stated thus:

“This clear constitutional provision enjoins judges when passing sentence to take any period spent in lawful custody before the conclusion of the trial into account. A legitimate question which might arise in any given case and which does indeed arise for consideration in this instant appeal is, how do we arrive at the conclusion that this constitutional mandate has been complied with? We believe this is discernible from the record of appeal. We would not attempt to lay down any hard and fast rules as to the form, manner or language in which the compliance should be stated, but the fact of compliance must either explicitly or implicitly be clear on the face of the record of appeal. Admittedly, the more explicitly the court expressed the position that it had taken account of the said period, the better it would be for everyone as it placed the question beyond every controversy and left no room for doubt. Nonetheless, any reference to the period spent in custody before the conclusion of the trial in a manner that suggested that it weighed on the judges mind before deciding on the sentence should be sufficient”.

In Frimpong alias Iboman vrs The Republic [2012] 1 SCGLR 297, the court speaking through Dotse JSC, approved and applied the exposition and applicability of Article 14(6) of the Constitution in the Bosso case (supra). In that case, there was evidence on the record that the appellant spent four years in lawful custody before the completion of the trial and his conviction and then sentence. But then the trial judge omitted to take into consideration the four years’ incarceration in compliance with Article 14(6) in imposing the sentence of 65 years IHL. The court declared the sentence as unconstitutional and went on to reduce the sentence after reviewing the evidence on record and taking other factors into consideration.

In the present case, although the trial judge was reminded that the appellant had all along been in lawful custody, it does not appear that he appreciated the effect of the incarceration during the trial on the length of sentence. Probably so because counsel for the appellant did not cite the constitutional provision specifically to him. So, although the trial judge stated that he had noted all those matters, it does not appear from the record that he unexpressedly took into account the provision of Article 14(6) of the Constitution. In fact, it cannot also be presumed from the record that the trial judge took into account Article 14(6) in imposing the term of imprisonment. The trial judge thus erred in the sentence he imposed without making sure he complied with Article 14(6) of the Constitution, 1992. We therefore uphold that ground of complaint of grounds (i) and (iii) of the appeal as argued together.

The other complaint against the sentence is that it is harsh and excessive. It is the submission on behalf of the appellant that he is a first offender, a young offender although he is in his fifties and yet the trial judge gave no reasons for imposing the sentence he imposed. It is however trite learning that sentencing is a matter entirely within the discretion of the trial judge or the appellate court – see Kamil vrs The Republic [2011] SCGLR 300. And as held in Kwashie vrs The Republic [1971] 1 GLR 488, there is no obligation on the trial court to give reasons for the sentence, except in three circumstances. These are:

(a) Where a statute requires that reasons must be given for the sentence.

(b)Where the sentence is extremely high or quite close to the minimum, or

(c) Where the sentence is at the minimum or comes very close to the minimum limit and thus discloses exceptional leniency.

Therefore the suggestion that the trial judge must of necessity give reasons for the sentence he imposed is not tenable because the sentence imposed does not fall within any of the three exceptions above. The complaint and argument thereon is dismissed. I also dismiss the argument that the appellant who was fifty years old in June 2002 when he committed the offence is a young offender. At best the appellant was a middle-aged man then. These mitigating factors do not enure to the benefit of the appellant in this instant case.

It is also submitted that the appellant is a first offender and yet the trial judge failed to take this fact into consideration in sentencing the appellant to 25 years IHL. In the locus classicus case of Kwashie vrs The Republic (supra), the Court of Appeal held thus as regards the length of a sentence:

“In determining the length of sentence, the factors which the trial judge is entitled to consider are: (i) the intrinsic seriousness of the offence; (ii) the degree of revulsion felt by law abiding citizens of the society for the particular crime; (iii) the premeditation with which the criminal plan was executed; (iv) the prevalence of the crime within the particular locality where the offence took place, or in the country generally; (v) the sudden increase in the incidence of the particular crime and (vi) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed”.

In the Iboman case (supra), Dotse JSC made the following observation about sentencing of first offenders. In holding 7, he stated:

“It is generally accepted that, a first offender must normally be given a second opportunity to reform and play his 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 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 offence-creating statute and the punishment provided therein ………… 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 was committed and the casualties, if any. Where the first time offender, as in the instant case, had committed a serious crime like robbery, which is a first degree felony, then it would be deemed that the first time offender himself had divested himself of any lenient consideration”.

Thus in appropriate cases, the youthful age of the accused or the fact that the accused is a first offender are taken into consideration as mitigating factors – see Haruna vrs The Republic [1980] GLR 189. But aggravating circumstances such as the seriousness of the crime, the premeditation with which it was committed and the prevalence of that crime will engender severe or deterrent sentence. Thus in Kamil vrs The Republic (supra), the Supreme Court per Ansah JSC, reminded appellants who appeal against sentence on the ground of harshness in these words:

“Where an appellant complains about the harshness of a sentence, he ought to appreciate that every 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 this country”

The charge against the appellant, causing harm by the use of offensive weapon is a first degree felony, but the punishment has not been specified. But a clue is found in section 296(1) of Act 30 as amended that where a criminal offence is declared by an enactment to be a first degree felony and the punishment for the offence is not specified, a person convicted of that offence is liable to imprisonment for life or any lesser term. The offence of causing harm by the use of offensive weapon having been declared a first degree felony with the maximum sentence on conviction being life, it is no doubt considered a serious or grave offence.

In the case of R. vrs Enahoro [1947] 12 WACA 194, cited with approval in the Kwashie vrs Republic case (supra), it was held that an offence which is of grave nature merits severe punishment. The court in Adu-Boahene vrs The Republic [1972] 1 GLR 70 at holding 4, stated that:

“Where the court finds 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. Once the court decides to impose a deterrent sentence, the good record of the accused is irrelevant”

In this case, since the punishment for the offence is stipulated by statute as life imprisonment or lesser term, imposition of a fine is completely out of consideration. The trial judge had imposed 25 years out of the maximum of life imprisonment. The 25 years sentence within the statutory maximum sentence is a matter within the discretion of the trial court as the courts always act upon the principle that the sentence imposed must bear some relation to the gravity of the offence.

Considering the seriousness of the crime, the premeditation with which it was committed, the pain and expense the appellant has put the victim to and the permanent disfigurement of the face and upper trunk of the victim’s body, we will not disturb the sentence of 25 years IHL on the ground that it is harsh and excessive. The punishment for the offence as stipulated by the statute is meant to be punitive to a convict and deterrent to others.

We have noted that spousal or marital violence is very rife in our society today. The manner of commission of the offence by the appellant suggest that if he cannot have the victim as a girl friend or wife, then she should lose her beauty and attraction to any other man. But for the age of the appellant we could have increased the sentence. We would therefore dismiss the complaint that the sentence is harsh and excessive. However, having determined that the trial judge erred in failing to take into account the 2 years and 3 months the appellant spent in lawful custody, before his conviction and sentence, the sentence of 25years IHL is reduced to 22 years, 7 months IHL. Subject to this variation in the sentence, the appeal is dismissed.