IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
ABU MOHAMMED - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 19 TH APRIL, 2018
SUIT NO: H2/16/17
JUDGES: M. OWUSU (J.A.) – PRESIDING, AYEBI (J.A.), SOWAH (J.A.)
LAWYERS: AUGUSTINE OBOUR FOR APPELLANT
MARIAMA OWUSU, J.A.:
On 18-7-2014, the High Court, Accra, found the appellant guilty on the charges of conspiracy to commit crime namely, robbery and robbery. He was convicted on both charges and was sentenced to twenty-five years on each count to run concurrently.
Dissatisfied with the decision of the court on the sentences meted out to him, the appellant filed Notice of Appeal pursuant to leave granted him by this court on 13-6-2017.
The Grounds of Appeal are:
1. The Sentence is excessive.
2. Additional grounds may be filed upon receipt of the proceedings.
At this stage, let me put it on record that the appellant did not file additional ground(s) of appeal.
Counsel for the Republic also did not file any process in this appeal.
In arguing the appeal, counsel for the appellant referred to Exhibit A, the investigation caution statement of the appellant and stated that, the latter was twenty years of age at the time of his arrest. Counsel again referred to the preamble of the Juvenile Justice Act, 2003, (ACT 653). He continued that, the Act is to protect young offenders. He referred to section 60 of the Act which defines a young offender as;
“Young person means a person who is eighteen or above eighteen years but is under twenty-one years”.
Counsel then submitted that, the trial judge did not advert his mind to the age of the appellant. This is because, the maximum sentence to be meted out to a young person in the category of the appellant is three years when a serious offence is committed under section 46 (8) of Act 653. Based on the forgoing, counsel for the appellant submitted that, the sentence of twenty-five years imposed on the appellant by the trial judge is harsh and excessive.
Secondly, counsel argued, the appellant was arrested on 25th March, 2011 and was convicted and sentenced on 18th July, 2014. He continued that, there is no evidence on record to show that the period the appellant spent in lawful custody was taken into account by the trial judge in imposing the sentence. He argued that, the position of the law per article 14 (6) of the 1992 Constitution of Ghana is that, the court shall take into consideration any period a person spent in custody in respect of an offence for which he is convicted and sentenced. Counsel cited the cases of BOSSO V. THE REPUBLIC  SCGLR 420 and FRIMPONG @ IBOMAN V. THE REPUBLIC  1 SCGLR 297 to buttress his point and submitted that, the fact of compliance with article 14 (6) of the Constitution must either be explicitly or impliedly clear on the face of the record of appeal. However, in the instant case, from the record of appeal, the trial judge did not comply with article 14 (6) of the Constitution as there is no evidence to that effect.
Thirdly, the trial judge did not take any mitigating factors into consideration before imposing the sentence of 25 years on the appellant. Counsel therefore invited us as an appellate court to interfere with the sentences and set same aside. This is especially so as the minimum punishment for the offence of robbery with weapon is fifteen years. He concluded on this point that, the trial judge did not give any reason for imposing the sentence of twenty- five years on the appellant. Counsel referred to the case of APALOO V THE REPUBLIC 1 GLR 112 where this court differently constituted held that, “the court would interfere only when it was of the opinion that, the sentence was excessive having regard to the circumstances of the case or that the sentence was wrong in principle”. He concluded that, the sentence of twenty-five years in the circumstances of this case is excessive for a 20-year-old boy. Additionally, counsel submitted, the appellant was not represented by counsel on the day of judgment and this negatively affected the sentence imposed on him by the trial judge. Had the appellant been represented by counsel, the latter would have drawn the court’s attention to the age of the appellant and the fact that the appellant is a first offender.
As stated supra, before the High Court, the appellant was charged with the offences of conspiracy to commit crime to wit robbery and robbery. The particulars of offence states that;
ABU MOHAMMED, DANIEL ADDOTEYADDO@DANIEL
ATTRAM@RASTA@AGUDEY@POLICEMAN, MONTARI and ALIDU: on or about the 25th day of March, 2011 at Total “2” Filling Station, Kasoa in the Greater Accra Circuit and within the jurisdiction of this Court, armed with guns, you robbed the staff of Total “2” Filling Station, Kasoa, including Samuel Ntim Boateng of (8) mobile phones valued at GHc810.00, cash the sum about GHc4,000.00, one hand bag containing one Passport and one Driver’s license all belonging to Comfort Boateng, through the threat of harm with intent to overcome the resistance to the stealing.
The facts as presented by the prosecution leading to the trial of the appellant are that:
The complainant is the Manager of Total “2” Filling Station on the Bawjiase road in Kasoa. He has seven (7) supporting staff including his wife manning his business with a mart attached. The appellant then 1st accused is a Senegalese unemployed young man who lives at Kasoa. On 25th March, 2011, the complainant instructed his salesmen and women to render accounts for the day earlier than the usual 8:30 p.m. to enable him drive his wife to the Accra-Kumasi Station to board transport to Kumasi for a funeral. Whilst the complainant was waiting at his office, the appellant wielding a locally manufactured pistol together with three accomplices rushed on two of the fuel attendants at post and demanded that they surrendered all monies on them. In the process, the appellant shot at one of the fuel attendants in the kneel for hesitating in giving out the monies demanded. The robbers then entered complainant’s office and demanded the monies he had on him, the latter complied but the appellant retorted that as a Manager is that all the monies he had on him. The appellant then shot the complainant in the thigh. The robbers also brutalized the wife of the complainant and two Mart attendants and also robbed them of their mobile phones and cash the sum of GHC 4,000.00 Thereafter, the robbers scaled a wall behind the office of the Filling Station one after the other with their booty. However, luck eluded the appellant when he slipped off the wall, paving way for the complainant to thwart the former’s subsequent efforts at escaping. Nearby residents who had been reduced to helpless spectators from safe distance, rushed to support the complainant in arresting the appellant. The Police arrived at the scene on time to rescue the appellant from being lynched. The complainant and Dickson Anning (the fuel attendant who were shot) were rushed to the Korle-Bu Teaching Hospital.
After Police Investigations, the appellant and the second (2nd) accused were put before Court. The 3rd and 4th accused persons are still at large.
We have taken time to go through the facts even though the appeal is against sentence just to show the “Rambo Style” the appellant and his accomplices committed the crime.
On the argument that the appellant is a young offender and therefore the sentence to be imposed on him should not exceed three (3) years, we do not share counsel for the appellant’s position.
The Juvenile Justice Act, Act 653 deals with Juveniles who commit crime. The 1992 Constitution of Ghana pegs the age of majority at 18 years. Similarly, section 19 (4) of Act 653 provides that:
“Where it appears to the Court that the person brought before it has attained the age of eighteen years,
that person shall for the purpose of this Act be deemed not to be a juvenile and shall be subject to the Procedure Act” (our emphasis).
From the two provisions i.e. the Constitution and Act 653, quoted supra, when a person is eighteen years and above or below twenty-one years and commits an offence, he is to be tried in the regular courts and not the Juvenile Court. Again Act 653 defines “serious offence” to include offences such as robbery, rape, defilement and murder. Therefore, if a person who is twenty years old commits an offence of robbery, is tried in the regular courts, then the sentence of such an offence cannot be three years as being suggested by counsel for the appellant. The reason being that, the minimum sentence for the offence of robbery is fifteen years. Counsel for the appellant is equating a Juvenile Offender with a young offender which is wrong. A person has to be convicted first when he is above eighteen years, before the issue as to he/she being a young offender would arise. Consequently, the two cannot be used interchangeably. The appellant at the time of the commission of the offence was twenty (20) years. He was therefore not a juvenile. Considering the nature of the offence he committed, i.e. robbery, the appellant cannot be sentenced to three years imprisonment as submitted by counsel for the appellant. But more importantly, the aggravated nature and the manner with which the offence was committed does suggest he is a professional in the act, he cannot be sentenced to three years imprisonment.
There is no merit in this submission and it is accordingly rejected.
This brings us to the violation of Article 14 (6) of the 1992 Constitution.
Article 14 of the 1992 Constitution deals with the Protection of Personal Liberty.
Article 14 (6) reads:
“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 convicting and sentencing the appellant, the trial judge stated:
“The first accused person is convicted on both counts of the charges levelled against him. He is sentenced to 25 years imprisonment on each count to run concurrently”.
See page 142 of the record of appeal.
From the quotation supra, the trial judge did not take into consideration the period the appellant spent in custody before his conviction and sentence. This is mandatory. Our Supreme Court in the case of BOSSO V. THE REPUBLIC  SCGLR 420 gave an indication of how the compliance should take. In that case, Georgina Wood CJ (as she then was) delivering the reasons for the decision of the Court given on 2nd January, 2009, after quoting Article 14 (6) of the 1992 Constitution had this to say:
“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 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 impliedly be clear on the face of the record of appeal. Admittedly, the more explicitly the court expresses the position that it has taken into accounts the said period, the better it is for everyone as it places the question beyond every controversy and leaves no room for doubt. Nonetheless, we think that any reference to the period spent in custody before the conclusion of the trial in a manner that suggests that it weighed on the judge’s mind before deciding on the sentence should be sufficient”.
This was in 2009. Then in 2012, that is three years later, the Supreme Court had yet another opportunity to rehash the need to observe this constitutional provision in the case of FRIMPONG @ IBOMAN V. THE REPUBLIC  1 SCGLR 420, 405 holding (11) thereof. Their Lordships have this to say:
“Trial Courts were required under Article 14 (6) of the 1992 Constitution to take the period spent by a convict in lawful custody into consideration before imposing the term of imprisonment. The more explicit an expression by the trial court that it had taken into consideration the provision of article 14 (6) in the imposition of sentence, the better. It must therefore be clearly understood that since there was no harm in the trial court stating that it had taken the period spent by the convict in lawful custody into consideration before imposing the sentence in the particular case, the explicit approach was a better method than not stating it at all or leaving the appellate Court to make inferences. In the instant appeal, there was absolutely nothing on record to suggest that the trial Court and the Court of Appeal had considered that basic but important Constitutional Provision. That was wrong in terms of procedure and since appeal is by way of re-hearing, the Supreme Court would do what the High Court and the Court of Appeal had failed to do”.
Relating the cases cited supra to the case under consideration, we do not find any reference to this constitutional provision on the face of the Judgment. So, the only conclusion is that the trial judge failed to take this Constitutional provision into account. The appellant from the record of appeal was arrested on the 25th of March, 2011. His trial ended on 18th July, 2014 and was convicted and sentenced to twenty-five years IHL. He thus spent three years, four months in lawful custody before his conviction and sentence by the trial Court. This period should be deducted from the twenty-five years IHL imposed on him. The appellant is sentenced to twenty-one years eight months IHL.
In respect of the argument that the appellant is a first and young offender, that may be true. But at the risk of sounding repetitive, the manner the offence of robbery was committed i.e. the appellant shooting the Manager and a fuel attendant of the Petrol Filling Station, brutalizing the Manager’s wife, certainly the appellant cannot be treated as a young offender. In the case of AMANIAMPONG V. THE REPUBLIC  80 GMJ, 105, the Supreme Court speaking through Justice Rose Owusu (JSC) had this to say when the appellants in that case between the ages of 18 to 22 wanted their sentences reduced on appeal. Her Ladyship posed this question;
“Is the commission of the crime in the nature of robbery the best way they can put their youthful ages?”……..
“Robbery is a felony and where harm is caused, as in this case, the minimum sentence imposed by the law is fifteen years including hard labour. 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 30 years including hard labor imposed on the appellant by the Court of Appeal harsh and excessive. (our emphasis).
The appeal against sentence is accordingly dismissed”.
The above cited case falls on all fours with the case under consideration. Two people were shot by the appellant in the process of committing the robbery.
Suffice to say that, in the Amaniampong case cited supra, the appellant in that case was twenty years. However, considering the nature of the crime he committed i.e. robbery, the Supreme Court found his sentence of thirty years IHL not harsh and excessive.
We do not find any merit in ground (a) of the appeal and it is accordingly dismissed.
Short of the reduction of the three years four months the appellant spent in lawful custody before the end of his trial from the twenty-five years IHL imposed on the appellant, we find no merit in his appeal against sentence and it is accordingly dismissed.
The appellant is sentenced to twenty-one years eight months in hard labour.