IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
ASAMOAH GYAN - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 26TH JUNE,2018
SUIT NO: H2/02/2016
JUDGES: ADUAMA OSEI J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
OBENG-MANU FOR APPELLANT
CECILIA ANIMA PEPRAH TAKYI, STATE ATTORNEY FOR THE REPUBLIC
The brief facts of this case are that on the 16th day of August, 2006 at about 12.15 pm the complainant and her sister whilst returning from a hotel at Kenyasi, were accosted by the Appellant. The Appellant pulled out a cutlass and asked to surrender all they had on them. They hesitated but the Appellant threatened to chop off their heads. The complainant’s sister managed to escape.
Subsequently the complainant removed Gh¢25,000.00 and gave same to the Appellant. Whilst removing the money her mobile phone fell from her pocket and the Appellant ordered her to give it to him. When she attempted to pick it for him, the Appellant hit the complainant with the cutlass at her back and she gave the phone to him.
After collecting the phone, he fled the scene. Three days after the incident, the Appellant was arrested and the case reported to the police.
The Appellant was tried, convicted and sentenced by the trial High Court, Kumasi on the 25th of October 2007 to a term of 27 years with hard labour (IHL) for the offence of Robbery; contrary to Section 149 of Act29 of 1960 as amended. Dissatisfied with the sentence imposed, not the conviction, the Appellant has appealed against the sentence on the sole ground that:
“The sentence is harsh and excessive having regard to the circumstance of the case which has resulted in substantial miscarriage of justice”.
Section 149 of the Criminal and other Offences Act, 1960 (Act 29/60) as amended by Act 646, states that “Whoever commits robbery shall be guilty of first degree felony. Section 150 defines robbery andsection149 (1) of the same Act 29 as amended by provides that:
“Whoever commits robbery is guilty of an offence and shall be liable, upon conviction on trial summarily or on indictment, to imprisonment for a term not less than ten years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term not less than fifteen years”.
From the facts, the Appellant has admitted the offence, and the phone; one of the subject matter of the offence of the robbery is retrieved from the Appellant.
The Appellant was convicted and sentenced summarily upon his own admission of the commission of the offence. This has saved the Court a lot of time, stress and valuable state resources.
It is also pertinent to note that where a statute has prescribed the precise punishment to be meted out to offenders, it is incumbent on the Court called upon to enforce the law, to act within the strict language of the statute. In Addovrs The Republic  1 GLR 254, the accused was charged, tried and convicted for the offence of nuisance contrary to section 296 of the Criminal Code, 1960 (Act 29) which was punishable by only a fine. He was nevertheless sentenced to three months imprisonment. On appeal, it was held that the sentence was unauthorized
The exact sentence to be passed in most cases depends to a large extent upon the discretion of the Court as well as its statutory jurisdiction.
Evidently, Article 296 of the 1992 Constitution has clear guidelines on the excise of discretion.
When a person is vested with a discretionary power, the Constitution enjoins that:
(a) “The discretionary power shall be deemed to imply a duty to be fair and candid;” and
(b) “The exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law.”
Case law have further provided for clear guidelines as to the exercise of discretion by people in authority when making decisions. In Komegbevrs The Republic  2 GLR 170, the Court per Andoh J (as he then was) adopted the meaning of “discretion” propounded by Lord Halsbury LC in Sharp vrs Wakefield  AC 173 at 179, HL where he stated thus:
“…‘discretion’ means that when it is said that something is to be done according to the rules of reason and justice, not according to private opinion that ….according to law, and not honour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.”
This Court has observed that the imposition of the prison term of 27 years with hard labour (IHL) on a youthful first time offender is relatively harsh and excessive, considering the facts and the surrounding circumstances of the case. The trial Judge in the opinion of this Court has erred in the exercise of his discretion in passing sentence on the Appellant. The trial Judge should have put into consideration certain available mitigating factors on record, especially where there was no evidence before this Court that the Appellant herein has any previous criminal record. This fact can therefore be gleaned from the pieces of available evidence on the record that the Appellant herein is a first offender; one who has had no brush with the law.
Counsel for the Appellant submitted that without justifying the act of the Appellant herein however, the evidence of PW 2 on the 10th day of July was that the Appellant told him (PW 2) that “he (the Appellant) needed financial assistance in order to go to hospital” and that was the purpose for which he pledged the stolen Samsung mobile phone. This shows that but for the urgent need for the Appellant to go to hospital he might not have engaged himself in such unlawful act and therefore, he was not known by the law enforcement agencies as a robber. Thus, the Appellant was a first time offender in that regard.
In Simons vrs Commissioner of Police  1 GLR 205 where the accused appealed against a fine of £150 for a motor offence for the reason that it was excessive; coming so close to the maximum of £200, it was held that the power of a Court to impose a fine is discretionary, but the discretion must be exercised judicially. The Court held further that where it is shown that trial Court acted on wrong principles or that the sentence is manifestly excessive, the appellate court will interfere with the sentence.
As a general rule, the Court is not bound to give reasons for the sentence it passes: See,Harunavrs The Republic  GLR 189.
In Kwashievrs The Republic  1GLR 488, CA, one of the grounds of appeal against a seven-year term of imprisonment imposed on the Appellant for stealing was that the trial Court gave no reasons for the severe sentence it imposed. On appeal, the court of appeal held “that when a trial court is imposing a sentence on a convicted person, there is no obligation on it to give reasons for the sentence”.
There are however three exceptions to this general rule namely:
i. Where a statute requires that reasons should be given for the sentence;
ii. Where the sentence is extremely high or quite close to the maximum limit; and
iii. Where the sentence is at the minimum or comes very close to the minimum limit and this discloses exceptional leniency.
Nonetheless, to ensure that sentences meted out to accused persons conform to law, it is just, fair and proper, that at least the section of the statute under which any sentence is imposed may advisedly be stated in the final order of the sentence. In the instant case therefore, the learned trial Judge erred for not giving his reasons (even though, not obliged by law to do so) for such excessive and harsh sentence, so as to clear any reasonable doubt that anyone may have.
It is worthy of note that, to a large extent, the sentence to be imposed by the Court may be conditioned by the nature of the offence or the value of the subject matter of the offence. The sentence must fit the crime. A harsh sentence for an obviously trivial offence is improper and cannot stand appeal. In Agyemangvrs The Republic  2 GLR 380, the accused, having pleaded guilty to a charge of assault contrary to Section 84 of Act 29, was sentenced to twelve months’ imprisonment with hard labour. On appeal, it was held that the trial court should have recognized that triviality of the offence. If even a sentence of three months’ imprisonment in respect of an assault charge was held to be harsh and excessive in that case, how much more in the instant case. See also Komegbevrs The Republic (supra) and AmoahvrsThe Republic  2 GLR 72.
On the other hand, too lenient a sentence for a serious offence is equally improper. In The Republic vrsBofah  GLR 620, the accused pleaded guilty to a charge of stealing of ¢2,014.69 which was a colossal sum of money at that time. It was held that the amount involved was too large to warrant a punishment of binding over or a caution and discharge. Each case must be considered on its own merits.
Where the court finds an offence to be very grave, it may not only impose a punitive sentence, but also a deterrent or exemplary one as to indicate the disapproval of society of that offence. In AduBoahenevrs The Republic  1 GLR 70, CA, the Court of Appeal held that “the trial court, in imposing a deterrent sentence of fifteen years’ imprisonment with hard labour [IHL], must have taken into consideration the prevailing wave of robberies”. The Republic vrs.Bofah (Supra)also held that “having regard to the value of the object, a severe sentence should have been imposed to serve as a deterrent to others”.
The factors that determine the length of sentence have been stated to be; the intrinsic seriousness of the offence, the degree of revulsion felt by law-abiding citizens of the society for the particular crime, the premeditation with which the criminal plan had been executed, the prevalence of the crime within the particular locality where the offence had taken place or in the country generally and mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence had been committed. See Kamilvrs The Republic  1SCGLR 300 and KwashievrsThe Republic (supra).
Again, one of the relevant factors for consideration when imposing the sentence in relation to the mode of committing the crime and the level of culpability is the nature of weapon used and the extent of violence inflicted on the victim during the commission of the offence.
Whatever sentence the court wishes to impose, the personal circumstances of the convict should be considered. Those circumstances may either induce an enhancement of the sentence or induce mitigation to the point of leniency. The most important consideration on this point for the sentencing official is that the punishment must not merely fit the crime but must also fit the criminal. The Court usually considers some of these personal circumstances of the offender before passing sentence: See Kamilvrs Republic (supra); Kwashievrs The Republic (supra). These personal circumstances include the following:
The youthful age of the offender; this is often regarded as inducing leniency because the convict may be an immature or still developing person who needs to be saved from imbibing criminal ideas from adult criminals… In Tortovrs The Republic  1 GLR 342 at 347, CA, it was held that:
“Taking into consideration the accused’s extreme youth [mid-twenties] and his hitherto unblemished character on one side and the gravity of the offence on the other, we think that the ends of justice will be met if the sentence for manslaughter is reduced to four years.” It is worthy of notice that the Appellant in the instant case is a young man who has a very long and exuberant life aheadof him, and therefore his sentence should be mitigated, considering the facts and circumstances surrounding this case”.
At the same time a very old offender (convict) should not be given an excessive and harsher sentence.
See Criminal Appeal Number J3/5/2010, Frimpong alias IbomanvrsTheRepublic (2012) 1 SCGLR, 297.
Furthermore, the fact that the convict is a first offender is always taken into account to mitigate the sentence to be imposed. See HarunavrsThe Republic (supra) and AbuvrsThe Republic GLR 294.
Again, any previous conviction of an accused may also be considered in imposing sentence. See Akakpovrs TheRepublic (Practice Note)  1GLR 65 and Commissionof Police vrsMarbah(Practice Note)  2 GLR 159, SC.
From the evidence before this Court, the Appellant does not have any previous record of conviction and therefore, the trial Judge should have taken that fact into consideration in passing the sentence.
This Court is of the opinion that evidence of good character should induce leniency, especially where there is no previous conviction or where there has been a long period of good character following the time of the previous conviction: See Kungua and orsvrs The Republic [1984-86] 2 GLR 489. Also, the fact that there was no evidence on record that the Appellant in the instant case used the Cutlass to injure the victim is a clear indication that the circumstances surrounding the robbery were not that offensive or aggravated. For this reason the Appellant should have been dealt with leniently in his sentencing by the trial court, this clearly the trial Judge failed to do.
In Criminal Appeal No. H2/05/14 delivered on Thursday the 31st day of July, 2014, Kofi Adomako @ Asconavrs The Republic, the Court of Appeal speaking through His Lordship Justice E. K. Ayebi JA, said that:
“A sentence is wrong in principle when it is not commensurate with the gravity of the offence committed or the role played by the convict (Dabla case), or when the previous good character of the convict is not taken into consideration or when the age of the convict is not considered or when the obvious physical circumstances of the accused is overlooked”.
Indeed, in Gligah&Atisovrs The Republic (Criminal Appeal No.J3/4/2009), delivered on 6th May, 2010, the Supreme Court speaking through His Lordship, Justice Dotse JSC, stated inter alia that:
“...It was generally accepted that when direct evidence was unavailable, but there were bits and pieces of circumstantial evidence available (as in the instant case), and when those were put together, they would make stronger, corroborative and more convincing evidence than direct evidence.”
In the instant case therefore, the pieces of evidence which helped in making very strong circumstantial evidence rather in favour of the Appellant herein included those stated above.
It is also worthy of note that the learned trial Judge erred again when he said that the sentence is to take effect from the 16th of August 2006. The position of the law as per Section 315(3) of Act 30/60is that “A sentence of imprisonment commence on and includes the day on which it is pronounced”; in this case the 25th of October, 2007.
See Oyovrs The Republic (1999-2000) 1GLR, where the Court of Appeal, speaking through Benin J.A.
(as he then was) held inter alia that:
“By the provision in section 315(3) of Act 30, a sentence of imprisonment should start from the date it was pronounced. A court was thus not entitled to back date a sentence.”
Considering the facts and the circumstances surrounding the instant case, this appellate Court upholds the sole ground of appeal for the Appellant that the sentence of 27 years imprisonment is harsh and excessive. Especially, when the intrinsic nature of the offence though grave was not that aggravated to the extent that no injury ensued. Additionally, the phone which was taken in the commission of the crime had been retrieved and returned. Also, the fact that the convict has already spent about nine (9) years in prison for the crime.For these reasons, the sentence in the opinion of this Court is therefore reduced to 15 years as the minimum number of years by law for a sentence in a robbery committed by the use of an offensive weapon or missile. The 27-year sentence of the learned trial Judge is hereby set aside as an error in the exercise of his discretion and in its place, substituted with a 15year sentence for the Appellant.
The appeal is therefore allowed. Judgment of Trial Court set aside and substituted with 15 years In Hard Labour with effect from 25th October, 2007.
MARGARET WELBOURNE (MRS.)
[JUSTICE OF APPEAL]
I AGREE K. N. ADUAMA OSEI
[JUSTICE OF APPEAL]
I ALSO AGREE SENYO DZAMEFE
[JUSTICE OF APPEAL]