AMADU SUMAILA vs. THE REPUBLIC
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2016
AMADU SUMAILA - (Appellant)
THE REPUBLIC - (Respondent)

DATE:  28TH JULY, 2016
SUIT NO:  H2/8/2015
JUDGES:  M. OWUSU J.A. (PRESIDING), DORDZIE J.A., GYAN J.A
LAWYERS:  ISAAC AIDOO FOR APPELLANT
M. A. OPARE (PSA) FOR REPUBLIC
JUDGEMENT

 

MARIAMA OWUSU, (J.A.):

This appeal is against sentence. The appellant was convicted on the charges of possession of narcotic drugs contrary to section 2 (1) of PNDCL 236. He was sentenced to fifteen years IHL.

 

Dissatisfied with the decision of the High Court, the appellant appealed to the Court of Appeal on the following grounds:

1. (a) His Lordship should have thoroughly considered the repentant state of mind and heart of the appellant and reduced the sentence to the minimum.

(b) His Lordship should have given weight to mitigation of sentence and the fact that the appellant is a young offender and that was his first brush with the law and given him minimum sentence and that occasioned a miscarriage of justice.

(c) His Lordship should have stated expressly that he had considered the date of arrest and the number of years the appellant had spent in lawful custody in both judgments.

(d) The sentence of 15 years is excessive

 

2. The sentence is excessive.

 

Before dealing with the merits of this appeal, I will give a brief back ground of this case. The facts as presented by the prosecution are that, the appellant a Ghanaian national is domiciled in Spain. On 18th July, 2008, he arrived at the Kotoka International Airport to board Royal Air Maroc to Spain. Whilst going through departure formalities, he was suspected of carrying narcotic drug in his stomach due to his strange demeanor by the personnel of the Narcotic Control Board on duty at the Airport. A field test of his urine proved positive that he had narcotic substance in his system. He was further questioned by the officers and he confessed that he had swallowed pellets of cocaine. He was arrested and put under observation and within twenty four (24) hours, he expelled eighty (80) thump size capsules of whitish substance suspected to be cocaine.

 

During interrogations, the appellant claimed he was recruited by one JEFF in Spain to come and carry the cocaine from Ghana for a fee of three thousand euros (€3,000). That he came to Ghana and met someone at Kwame Nkrumah Circle where he collected the cocaine from the person and swallowed same. The appellant claimed he did not know his supplier’s name and could therefore not assist police to arrest him.

 

The suspected narcotic drug was sent to Ghana Standard Board for analytical examination, where it proved positive for cocaine, a narcotic drug.

 

After police investigations into the matter, the appellant was charged with Possession of Narcotic Drug without lawful authority contrary to Section 2 (1) of Narcotic Drugs (Control, Enforcement and Sanctions) Law 1990, PNDCL 236.

 

After a full trial, the appellant was found guilty and convicted accordingly.

 

In sentencing the appellant, the trial judge held among other things that;

 

“From the totality of the evidence led and the surrounding circumstances of this case, the accused person was found in possession of 80 pellets of cocaine which he had concealed in his stomach. He knew the nature and quantity of the substances that he has swallowed and he must be held culpable for his conduct. He is convicted on the charge of Possession of Narcotic Drug Contrary to Section 2 (1) of PNDCL 236. He is sentenced to 15 years imprisonment with hard labor”.

 

It is this sentence that the appellant has appealed against.

 

From the Notice of Appeal, the appellant is not appealing against conviction, but only the sentence. The introduction of counsel for the appellant’s Written Submission filed on 10th March 2016 confirms this when he stated that:

 

“Respectfully My Lords.

 

This is an appeal for mitigation of sentence for the offence of possession of narcotic drugs for the appellant, Amadu Sumaila who (hereinafter simply called appellant) is convicted contrary to Section 2 (1) of the Narcotics Drugs (Control, Enforcement and Sanctions’) Law 1990, Act 236”.

 

In arguing the appeal, counsel for the appellant submitted that, the appellant’s appeal is largely for mitigation of sentence. He continued that, the appellant is not known to the law and was a first offender. He has also been remorseful of the act he did. Counsel cited the case of ABU & OTHERS Vs. THE REPUBLIC [1980] GLR 294 where it was held in holding [1] (a) that:

 

“In imposing sentence, it seemed the court had a duty to consider all aggravating and mitigating circumstances. The appellants aged between 37 and 42 years were all first offenders and the trial Circuit Court Judge should have taken that into consideration in determining the sentence to be imposed on the appellants;

 

(b) Although it was common knowledge that the economic conditions in the country at the moment had reached a stage where the average person was finding life really unbearable to the extent that if the economic situation was not put on an even keel many persons would be turned into petty criminals, it would however be dangerous not to impose a custodial sentence since the court might be accused of encouraging dishonesty and introducing necessity as a major and mitigating factor in crime. Whatever mitigating influence this factor might have, it ought not to have the effect of totally obliterating the legal consequences of crime by sanctioning or encouraging probation. Its only effect might be to discourage very severe and harsh sentence. No more. HARUNA VS. THE REPUBLIC [1980] GLR applied…” and other cases like KWADU VS. THE REPUBLIC [1971] 1 GLR 272; FORSON VS. THE REPUBLIC [1976] 1 GLR 138 as well as Article 14 (1) of the 1992 Constitution on the freedom of the appellant.

 

Counsel then made mention of the fact that a portion of the record of proceedings is missing from the appeal record. He then submitted that, our Supreme Court faced with a similar situation where the records of the appellant could not be traced or were incomplete discharged the appellant in the case of JOHN BONUAH @ ERIC ANNOR BLAY VS. THE REPUBLIC; Criminal Appeal No. J3/1/2015. He therefore invited us to reduce the fifteen (15) years Imprisonment with Hard Labor to the minimum of ten (10) years as the appellant has learnt his lessons or he be granted a conditional discharge for the prosecution to organize the said witnesses for a trial de novo failure of which the appellant should be discharged unconditionally.

 

In response to the above submissions, counsel for the Republic/Respondent hereinafter referred to as Respondent after narrating the facts of the case, argued all the grounds of appeal together. She then submitted that, the appellant admitted having swallowed pellets of cocaine in his investigation caution statement and narrated the circumstances under which he came to swallow the drugs. She continued that, the appellant did not swallow the drugs under any duress. In spite of this, the appellant pleaded NOT GUILTY to the offence and the case went through a full trial. He now comes before the Court of Appeal, not contesting the conviction but understandably only the sentence that was imposed on him. Counsel for the Republic therefore submitted that, the sentence of fifteen (15) years imposed on the appellant is appropriate looking at the grave nature of the offence and the circumstances of the case. She cited the case of APALOO VS. THE REPUBLIC [1975] GLR 156, 191, where this Court differently constituted held that:

 

“The Court will interfere with a sentence only when it is of the opinion either that the sentence is manifestly excessive, having regard to all the circumstances of the case, or that the sentence is wrong in principle”.

 

Counsel for the Republic therefore submitted that, the sentence of fifteen [15] years imposed on the appellant is not excessive. She cited the cases of KWASHIE VS. THE REPUBLIC and HUDGSON VS. THE REPUBLIC [2009] SCGLR 669 to buttress her point that where the offence is grave in nature, the courts have held that the sentence must not only be punitive, but must also be deterrent or exemplary in order to mark the disapproval of society of that particular offence. She therefore invited us to dismiss the appeal as being without merit.

 

On the issue of the missing record of proceedings, counsel for the Republic submitted that, this is not fatal to the determination of this appeal. This is because the appellant’s appeal is against sentence and the unavailability of that portion of the records has no direct bearing on the appeal against sentence. It is not central to the resolution of the appeal. Consequently, counsel argued, the appellant is not entitled to be granted conditional discharge. She therefore invited us not to reduce the sentence as same is appropriate. Even if this Court is minded to reduce the sentence of fifteen (15) years IHL, it should be reduced to twelve (12) years to start from the date the sentence was pronounced.

 

From the arguments/submissions of both counsel for the appellant and the Republic, on the missing proceedings, we think same is not germane to the resolution of the appeal before us. We say so for the simple reason that, the appellant’s appeal is against sentence. By this ground of appeal the presumption is that, his conviction was proper. This notwithstanding, this Court made strenuous efforts to get the missing proceedings which is the evidence of PW1, Elijah Anchirinah to no avail. First the Court remitted the Record of Appeal to the trial Court for rectification. The registrar of the trial court on the 27th February 2015 wrote to this Court via the Registrar of the Record of Appeal that the evidence in chief of PW1 given on the 17th February, 2009 cannot be traced from the recording machine. See the letter with Reference No. 201/2/03/15, dated 27th February, 2015 addressed to the Registrar, Court of Appeal (Criminal Division) Accra, and signed by the Registrar, High Court, Solomon N. A. Botchway.

 

We again tried to reconstruct the record in line with the Supreme Court case of JOHN BONUAH @ ERIC ANNOR BLAY cited supra to no avail by inviting both counsel for the appellant and the Republic to give us their notes for the day but both counsel said they were not the counsel at the trial. In any event, counsel for the appellant at the trial summarized the evidence of PW1 in his address. See page 17 of the record of appeal. But be that as it may, the facts and the ratio in the BONUAH case supra should be distinguished from the case under consideration in that, the present case is just an appeal against the sentence whilst the appeal in the BONUAH case was against conviction. Consequently the missing evidence of PW1 notwithstanding, it has not occasioned any miscarriage of justice. Therefore the question of the conditional discharge of the appellant does not arise in this case.

 

In respect of the grounds of appeal, both counsel for the appellant and the Republic argued all the grounds together and we would follow that order.

 

Counsel for the appellant in his written submissions had urged on us that since the appellant is a young offender and this is his first brush with the law, this Court should reduce the sentence of the appellant to the minimum of ten (10) years IHL. He relied on the case of ABU & OTHERS VS. THE REPUBLIC case supra as his authority.

 

From the caution and charged statements of the appellant, he is in his thirties. In the recent case of AMANIAMPONG VS. THE REPUBLIC (2015) 80 GML, 105, the Supreme Court speaking through Justice Rose OWUSU (JSC) had this to say when the appellants who were all young adults between the ages of 18 and 22 wanted their sentences reduced on appeal. She posed this question.

 

“Is the commission of crime of the nature of robbery the best use they can put their youthful ages?”

 

She continued:

 

“Robbery is a felony and where harm is caused, as in this case, the minimum sentence imposed by the law is fifteen (15) years including hard labor.

 

Punishment is justified as a deterrent not only to the criminal himself, but also and even more importantly to those who may have similar criminal propensity. A way must be found to protect society from the activities of these criminals and to me, this way is confinement for a considerable length of time. The appellant if he is mindful of reforming must do so whilst in prison.

 

I therefore under the circumstances do not consider the 30 years including hard labor imposed on the appellant by the Court of Appeal harsh and excessive.

 

The appeal against sentence is accordingly dismissed”.

 

We share the sentiments of our sister JSC Justice Rose Owusu expressed above. In the ABU AND OTHERS VS. THE REPUBLIC case supra cited by counsel for the appellant, the harsh economic conditions in the country at the time was held to be turning many persons into petty criminals. But even then TAYLOR J (as he then was) held that it would be dangerous not to impose custodial sentence, else the Court might be accused of encouraging dishonesty and introducing necessity as a major and mitigating factor in crime. The Court continued that whatever mitigating influence this factor might have, it ought not to have the effect of totally obliterating the legal consequences of crime by sanctioning or encouraging probation.

 

Relating the cases cited supra to the case under consideration, the appellant from the facts of the case and from his evidence in chief at the trial court said he is a Ghanaian and lived in Spain before his arrest. Therefore the economic conditions in this country cannot be a factor leading to his trafficking of narcotic drugs, to wit cocaine. In respect of his youthful age, as rightly held by Justice Owusu (JSC) in the Amaniampong case supra, is trafficking in Narcotics the only way the appellant can put his youthful age to? We would want to believe that, the appellant went to Spain to seek greener pastures. The question is, is the trafficking of Cocaine the only way he can put his youthful energy to? The answer is obviously no. It is in this respect that we agree with counsel for the Republic that looking at the grave nature of the offence i.e. possession of narcotic drug to wit cocaine, the sentence must not only be punitive but it must also be deterrent or exemplary in order to serve as the disapproval of the society of this particular offence.

 

Section 1 (1) of the NARCOTIC DRUGS (CONTROL, ENFORCEMENT AND SANCTIONS) LAW, 1990 PNDCL 236 provides that:

 

“A person who imports or exports a narcotic drug without license issued by the Minister for Health for that purpose commits an offence and on conviction is liable to a term of imprisonment of not less than ten (10) years”.

 

From the provision supra, it can be seen that the Law sets the minimum sentence at 10 years IHL. But the law is silent on the maximum sentence. In the case of HUDGSON VS. THE REPUBLIC supra, Dotse JSC, commenting on the issue where the law sets the minimum sentence but leaves open the maximum sentence to be imposed on a convicted person, had this to say:

 

“Even though I also agree that the appeal against sentence should fail, I think there are other indicators that courts of law, especially trial courts should apply when evaluating appropriate sentences to be imposed on persons who are convicted of crimes in respect of which the entire society abhors. It is generally accepted that dealing in narcotic drugs to wit cocaine, is a menace which has for the past couple of years engulfed the entire nation Ghana and has threatened the very foundations of its socio-cultural and political stability. This the country has decided to deal with by imposing harsh and deterrent sentences. One sure way of measuring and evaluating a country’s abhorrence or dislike for a particular crime such as dealing in narcotics is to be seen in the types of punishment to wit sentences that are imposed on convicted persons. Where an enactment gives or states only the minimum sentence as ten years, and does not state the maximum, then it is sufficient indication, just as objects are viewed in a mirror, that the society or country intends to impose not only deterrent sentences but also to show its revulsion against the thriving business in narcotics.”

 

I am therefore of the view that, since the country through statements by its political leaders and shown clearly in the enactment governing the crime to wit the Narcotic Drugs (Control, Enforcement and Sanctions) Act, 1990 (PNDCL 236), by the strong indications in the mirror of the state which can be described as the policy measures of the State in fighting Narcotic drugs, the stage is set for punitive sanctions. One sure way the Courts can assist in this regard is to consider the public policy measures when it comes to imposing sentences on convicted persons. In the instant appeal, since I am satisfied that both the High Court and the Court of Appeal used the correct barometers in imposing the sentence of twenty years imprisonment on the appellant, there is really no good legal basis to disturb the sentence. If anything at all, it ought to be enhanced.

 

I would also dismiss the appeal against sentence”.

 

From the quotation supra, the charge against the appellant in the HUDGSON case was that of possession of narcotic drug to wit cocaine among other charges and he was sentenced to twenty (20) years IHL.

 

The appellant in the instant case swallowed the drugs i.e. the cocaine. He was even lucky. If the substance had bust in his stomach, it would have been fatal. For this and all that has been said above, the sentence of fifteen (15) years IHL imposed on the appellant is not harsh and excessive. Similarly, the fact that the period the appellant had been in custody was not stated on the face of the judgment would not change our decision. From the record of appeal we did not also see the repentant nature of the appellant which his counsel was talking about. There is therefore no merit in the appeal.

 

The appeal against sentence fails and it is accordingly dismissed.

 

MARIAMA OWUSU

(JUSTICE OF APPEAL)

 

DORDZIE, (J. A.)       I agree                           AGNES M. A. DORDZIE

(JUSTICE OF APPEAL)

 

GYAN, (J. A.)          I also agree                         SAEED K. GYAN

(JUSTICE OF APPEAL)